Citation Nr: 1333627 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-31 954 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the service-connected deep vein thrombosis of the left leg (phlebitis) for the period prior to May 8, 2013, on schedular basis. 2. Entitlement to a rating in excess of 40 percent for the service-connected deep vein thrombosis of the left leg (phlebitis) beginning on May 8, 2013, on schedular basis. 3. Entitlement to a rating in excess of 40 percent for the service-connected deep vein thrombosis of the left leg (phlebitis), on extraschedular basis pursuant to 38 C.F.R. § 3.321(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to August 1987. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision issued by the RO. In that rating decision, the RO granted service connection for deep vein thrombosis of the left leg and assigned a 10 percent rating, effective on March 4, 2003. The Board remanded the case in December 2009, August 2011 and January 2013 for further development of the record. That development has been completed and the claim on appeal has been returned to the Board for appellate review. The Board notes that a higher rating has been assigned for the service-connected deep vein thrombosis of the left leg during the pendency of this appeal (40 percent, effective on May 8, 2013). Because a higher rating for this disability is assignable during the relevant time period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal and is characterized as documented on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal herein decided. The issue of a rating in excess of 40 percent for the service-connected deep vein thrombosis of the left leg (phlebitis), on extraschedular basis is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the period of the appeal prior to May 8, 2013, the manifestations of the service-connected deep vein thrombosis of the left leg are shown to have more nearly approximated that of persistent edema and stasis pigmentation or eczema with or without intermittent ulceration; persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 40 percent rating, but no more for the service-connected deep vein thrombosis of the left leg (phlebitis) prior to May 8, 2013 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.104 including Diagnostic Code (DC) 7121 (2012). 2. The criteria for the assignment of a rating in excess of 40 percent for deep vein thrombosis of the left leg (phlebitis), on a schedular basis, beginning on May 8, 2013 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.104 including Diagnostic Code (DC) 7121 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defect in the timing or content of such notice is not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an April 2003 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her request to reopen a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. However, as this appeal stems from the initial grant of service connection, the notice letter did not contain an explanation of the general rating criteria relevant to her deep vein thrombosis of the left. The August 2006 Statement of the Case (SOC) set forth applicable criteria for higher ratings for the disability. After issuance of the August 2006 SOC, and opportunity for the Veteran to respond, the May 2009 (and most recently June 2013) Supplemental Statement of the Case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, VA treatment records and examination reports. Further, the Board is aware that this appeal was, most recently, remanded in January 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The development requested in that remand has been completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and met. The Veteran was notified and aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to have caused any injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. The RO evaluated the Veteran's deep vein thrombosis of the left leg (phlebitis) under diagnostic codes (DC) 7121. See 38 C.F.R. § 4.104. A 10 percent rating is warranted for where there is intermittent edema of the extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is warranted where there is persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is assigned where there is persistent edema and stasis pigmentation or eczema with or without ulceration. A 60 percent rating is warranted where there is persistent edema and stasis pigmentation or eczema and persistent ulceration. A 100 percent rating is assigned where there is massive board-like edema with constant pain at rest. The Board finds that the medical and lay evidence reflects that the service-connected disability manifested by the residuals of a deep vein thrombosis of the left leg (phlebitis) warrants an increased rating of 40 percent rating, prior to May 8, 2013. The level of severity did not significantly change during the course of her appeal. A June 2003 private treatment hospital record reflects that the Veteran had an involved history of deep vein thrombosis of the left leg. She complained of increasing swelling, pain and tenderness of the left posterior calf. During hospitalization, the Veteran was prescribed Lovenox subcutaneously every 12 hours. A T-pump was applied to her left leg, and the leg was kept elevated. She was prescribed Coumadin, and the idea of the possibility of umbrella filter was discussed. A May 2004 private treatment record reflects that the Veteran always had edema of the left leg. A November 2007 private treatment record documented a finding of "+ 2 edema of the extremities." A September 2008 private treatment record documented that an examination of the extremities showed, in pertinent part, "2-3 + peripheral edema." A February 2010 private treatment record reflects the Veteran's complaints of left leg pain with swelling. The examiner documented the Veteran's extensive history of deep vein thrombosis of the left leg. He noted that the pain intensity was 10 out of 10. There was swelling of the entire left lower extremity with a palpable tender cord in the medial aspect of the leg and the medial proximal portion of the thigh. There was positive Homans sign. The dorsalis pedis was not able to be palpated fully, but was present. There was also some redness of the skin along the cord. An April 2011 private treatment record documents the Veteran's extensive history of deep vein thrombosis. Examination showed, "2+ edema left leg with pain in left thigh." In light of the lack of a comprehensive VA examination of record, the Board remanded this issue on appeal for further development in January 2013, to specifically include providing the Veteran with an adequate VA examination to address the manifestations of her deep vein thrombosis of the left leg. The May 2013 report of VA artery and veins examination reflected that the relevant diagnoses were those of deep vein thrombosis and lower extremity edema. The Veteran complained of having constant pain and swelling of her left leg, in pertinent part. She wore compression stockings most of the time that did seem to help her symptoms. She denied a history of venous ulcers in her left leg. The examiner indicated that the symptoms associated with the Veteran's disability included aching and fatigue in the legs after prolonged standing or walking, persistent stasis pigmentation or eczema, persistent edema that is incompletely relieved by elevation of extremity and constant pain at rest. In light of the Veteran's consistent reports of pain and swelling of the extremity along with documentation of edema of the extremity and the most recent examination (May 2013) documenting persistent edema that was incompletely relieved by elevation of extremity with persistent stasis pigmentation or eczema, the Board finds that the Veteran's deep vein thrombosis of the left leg more closely resembles that of persistent edema and stasis pigmentation or eczema with or without intermittent ulceration. In light of the lay statements for the period in question, the service-connected deep vein thrombosis of the left leg is found to warrants a 40 percent for the initial period of the appeal. As persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration are not demonstrated, a higher schedular rating is not warranted at any time. For these reasons, the Board finds that the claim for a rating higher than 40 percent for the service-connected deep vein thrombosis of the left leg must be denied. The Board has applied the benefit-of-the-doubt doctrine in assigning the increased rating, but finds that the preponderance of the evidence is against assignment of a schedular rating higher than 40 percent. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56(1990). ORDER An increased rating of 40 percent, but not higher for the service-connected deep vein thrombosis of the left leg (phlebitis) for the period prior to May 8, 2013 is granted, subject to the regulations governing the payment of monetary awards. An increased, schedular rating in excess of 40 percent for the service-connected deep vein thrombosis of the left leg (phlebitis) beginning on May 8, 2013 is denied. REMAND The Board recognizes that the question of an extraschedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer supra. In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this instance, the Veteran essentially alleges that the 40 percent schedular rating for her deep vein thrombosis of the left leg is inadequate and does not adequately reflect the degree of social and industrial impairment she experiences as a result of that service-connected disability. Based on the evidence of record indicating a marked interference with employment and frequent hospitalization, among other limitations imposed by her service-connected deep vein thrombosis of the left leg, referral of this matter to the appropriate VA official is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO must refer the question of whether an extraschedular rating for the deep vein thrombosis of the left leg is warranted to the VA's Under Secretary for Benefits or the VA's Director of the Compensation and Pension Service for appropriate consideration and any action deemed necessary. 2. After completion of the above development, the Veteran's claim should be readjudicated. If the determination remains adverse to her, she and her representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs