Citation Nr: 1331802 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-18 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for residuals of pulmonary tuberculosis. 2. Entitlement to an evaluation in excess of 20 percent for varicose veins of the left lower extremity. 3. Entitlement to an evaluation in excess of 20 percent for varicose veins of the right lower extremity. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran had active military service from January 1946 to December 1946. This case originally came before the Board of Veterans' Appeals (Board) on appeal from January and September 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Although the Veteran requested a travel board hearing in his May 2009 substantive appeal, he withdrew this request in a statement received by VA in July 2013. The issue of entitlement to a TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's pulmonary TB has been inactive since 1958. 2. The evidence shows some edema with superficial varicosities of the lower extremities; it does not show persistent edema and stasis pigmentation or eczema of the lower extremities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for residuals of pulmonary TB have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.89, 4.96(b), 4.97, Diagnostic Code 6721 (2013). 2. The criteria for an evaluation in excess of 20 percent for varicose veins of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2013). 3. The criteria for an evaluation in excess of 20 percent for varicose veins of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in September 2006, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased rating. In compliance with the duty to notify, the Veteran was informed in the September 2006 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the September 2006 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No pertinent additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A relevant VA evaluation was conducted in February 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2011 VA evaluation obtained in this case is adequate, as it includes a discussion of the Veteran's relevant respiratory and varicose vein symptomatology. There is adequate medical evidence of record, which include VA treatment records and a recent VA examination report, to make a determination on the increased rating issues in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination relevant to the increased rating issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claims Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Residuals of Pulmonary TB The Veteran contends that his respiratory disability is more severe than currently evaluated, as his left lung is collapsed. The Board notes that there are special provisions regarding evaluation of respiratory conditions. Public Law 90-493 repealed section 356 of title 38, United States Code, which had provided graduated ratings for inactive tuberculosis. The repealed section, however, still applies to the case of any veteran who, on August 19, 1968, was receiving or entitled to receive compensation for tuberculosis. 38 C.F.R. § 4.96(b). Thus, the old law continues to operate in the present case. Under the prior law for application in this case, where a rating for pulmonary tuberculosis was entitled on or prior to August 18, 1968, residuals of inactive pulmonary tuberculosis are rated 100 percent disabling for two years after the date of inactivity, following active tuberculosis, which was clinically identified during active service or subsequently; 50 percent thereafter for four years, or in any event, to six years after date of inactivity; 30 percent thereafter, for five years, or to eleven years after date of inactivity. 38 C.F.R. § 4.97, Diagnostic Code 6721. Furthermore, that Code section provided a minimum 30 percent rating following far advanced lesions diagnosed at any time while the disease process was active; 20 percent following moderately advanced lesions, provided there is continued disability, emphysema, dyspnea on exertion, impairment of health, etc.; and noncompensable otherwise. Id. Additionally, the rating schedule specifies that the graduated 50 percent and 30 percent ratings and the permanent 30 percent and 20 percent ratings for inactive pulmonary tuberculosis are not to be combined with ratings for other respiratory disabilities. See Note (2) following Diagnostic Codes 6701-6724; 38 C.F.R. Part 4, Diagnostic Codes 6701-6724. The Veteran was assigned a 100 percent rating by rating decision in April 1947 for bilateral pulmonary TB, far advanced, which was effective November 16, 1946. Service connection for pulmonary TB was severed by rating decision in November 1957 but restored by the Board in a May 1958 decision. An October 1958 rating decision noted that the Veteran's pulmonary TB was inactive and reduced the Veteran's 100 percent rating for the disability to 50 percent from August 12, 1960 to August 11, 1964, and to 30 percent beginning August 12, 1964. The Veteran was granted a temporary total disability rating of 100 percent for his pulmonary TB, effective from October 20, 2009 through April 30, 2010, due to hospitalization for more than 21 days for pneumonia with subsequent respiratory failure, as related to residuals of TB; the prior 30 percent rating for pulmonary TB was restored effective May 1, 2010. The Veteran complained on VA evaluation in November 2006 of chronic shortness of breath. On physical examination, the right lung was clear and the left lung was described as absent to diminished. There was some degree of clubbing of the toenails and fingernails; there was no cyanosis. The examiner diagnosed inactive TB, moderate in severity. Pulmonary Function Testing in December 2006 revealed pre-bronchodilator forced expiratory volume at one second (FEV-1) of 56 percent of predicted and post-bronchodilator FEV-1 of 62 percent of predicted, which was noted to be moderate. Chest X-rays in April 2008 revealed findings consistent with old inactive granulomatous disease. The Veteran was hospitalized at a VA hospital from October to December 2009 for pneumonia with subsequent respiratory failure. The Veteran complained on VA evaluation in February 2011 of shortness of breath on exertion. The diagnosis was pulmonary TB, chronic, inactive, not under treatment. Thus, under law applicable in this case, in order to achieve the next higher 50 percent rating under Diagnostic Code 6721, the evidence must show that tuberculosis has been inactive for no more than six years. However, the clinical evidence of record does not demonstrate that the Veteran has experienced active pulmonary tuberculosis since 1958. Based on the foregoing and without any evidence of active pulmonary tuberculosis, the Veteran does not warrant a disability rating in excess of 30 percent under 38 C.F.R. § 4.97, Diagnostic Code 6721. The Veteran's pulmonary TB, which during its initial active stages was characterized as far advanced in the 1950's, is currently inactive and has been so for many decades. Varicose Veins of the Lower Extremities The Veteran contends that his varicose veins of the lower legs are more severe than currently evaluated, as he has constant leg pain and cannot walk very far before his legs begin to swell. An April 1947 rating decision granted service connection for thrombophlebitis of the left lower extremity, assigning a 30 percent rating, and for thrombophlebitis of the right lower extremity, assigned a 10 percent rating; each rating was effective November 16, 1946. A June 1958 rating decision granted an increased rating of 30 percent for thrombophlebitis of the right leg, effective December 12, 1957. An October 1958 rating decision reduced the rating for each lower extremity to 10 percent, effective August 12, 1958. An April 1961 rating decision amended the Veteran's rating for his bilateral lower extremity disability to a 30 percent rating for bilateral varicose veins, above and below the knee, residuals of bilateral thrombophlebitis, effective October 20, 1960. A January 2007 rating decision granted separate 20 percent rating for varicose veins of each lower extremity, effective July 28, 2006. The Veteran's varicose veins of the lower extremities are currently rated under Diagnostic Code 7120, which provides the rating criteria for varicose veins and requires that separate ratings be assigned for each extremity. Under Diagnostic Code 7120, a noncompensable disability rating is warranted for asymptomatic varicose veins that are palpable or visible. A 10 percent disability rating is warranted for varicose veins that are manifested by intermittent edema of an extremity or aching and fatigue in a leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent disability rating is assigned for varicose veins with findings of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent disability rating is warranted for varicose veins with findings of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent disability rating is warranted for varicose veins with findings of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent disability rating is assigned for varicose veins with findings of massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120 (2013). The Veteran complained on VA examination in November 2006 of edema, swelling, fatigue, and aching due to his varicose veins; his symptoms were worse after prolonged standing or walking. The swelling was relieved by elevation. He rated his lower extremity pain at an 8 on a 1-10 scale. Physical examination showed 1+ pitting edema of the lower extremities. Dorsalis pedis, posterior tibialis and arterial pulses were 1+/4+ and equal bilaterally. There was clubbing of the nail beds but no cyanosis. There were multiple varicosities around the ankles and, to a lesser extent, extending up both lower extremities into the mid-calf region; they were nontender and not torturous. The diagnosis was of thrombophlebitis of the lower extremities with increased edema throughout the day and pain at rest, moderately severe. Added to the claims files in March 2008 are undated color photographs of the Veteran's lower extremities. VA treatment records reveal that Doppler findings in April 2008 were suggestive of chronic clot in the common femoral, superficial femoral, and popliteal veins bilaterally. It was reported in August 2008 that the Veteran had lower extremity swelling and chronic clots; he complained of lower extremity pain, better on Coumadin. The Veteran complained on VA evaluation in February 2011 of dull aching, intermittent tingling, and some swelling of the lower extremities. He was noted to be sedentary due to age. His bilateral lower extremity disability was noted to have no specific adverse effect on his daily activities. Physical examination revealed superficial varicosities in both lower extremities without ulceration or pitting edema. The Veteran reported edema late at night. His peripheral pulses were intact. The diagnosis was varicose veins, status post deep vein thrombosis, on Warfarin, with no change in the condition since VA examination in 2006. A review of the evidence does not show the symptomatology required for a rating in excess of 20 percent for varicose veins of either lower extremity. Although there was 1+ pitting edema of the lower extremities in November 2006, there was no pitting edema or ulceration on evaluation in February 2011. There was also no notation of stasis pigmentation or eczema in the medical reports. Consequently, the evidence of record more nearly approximates the criteria for a 20 percent disability rating than a 40 percent rating. Additional Considerations The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, both pulmonary TB and varicose veins of the lower extremities are contemplated and reasonably described by the rating criteria discussed above. The Veteran's pulmonary TB has been inactive for many years. His varicose veins of the lower extremities involve intermittent edema with pain, swelling, and some tingling. The Veteran does not have symptoms associated with either disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that either the Veteran's pulmonary TB or his bilateral lower extremity disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Board finds that the available schedular evaluations are adequate to rate each disability. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. The Board finds that the preponderance of the evidence weighs against the increased rating claims decided herein. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a higher rating for the disabilities at issue, is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an evaluation in excess of 30 percent for residuals of pulmonary TB is denied. Entitlement to an evaluation in excess of 20 percent for varicose veins of the left lower leg is denied. Entitlement to an evaluation in excess of 20 percent for varicose veins of the right lower leg is denied. REMAND The Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the record includes the contention by the Veteran in his November 2006 VA examination that he is unemployable due to his service-connected disabilities. Accordingly, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU. It would be fundamentally unfair to the Veteran to decide a claim which has not been developed and adjudicated by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). In order to comply with precedential Court opinion, this issue, therefore, is remanded for further development. Therefore, the case is remanded for the following actions: 1. The AMC/RO must provide the Veteran VCAA notice related to a TDIU claim. 2. Thereafter, the AMC/RO should schedule the Veteran for an examination to determine the effects of his service-connected disability on his ability to secure or follow a substantially gainful occupation. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the requested opinion. Any necessary special studies or tests are to be accomplished. The examiner must provide an opinion as to the following: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, considered in combination, preclude him from securing and following a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or his age. A complete rationale for all opinions must be provided. 3. The Veteran is notified that he must report for the examination and that failure to report may result in the denial of his claim. 38 C.F.R. § 3.655. 4. Following completion of all indicated development, the AMC/RO must adjudicate the claim for entitlement to TDIU, to include consideration of all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran will be provided a Supplemental Statement of the Case, which should include all pertinent law and regulations. The Veteran will then be given an appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for the purpose of appellate disposition. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs