Citation Nr: 1335883 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-12 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased disability evaluation for the service-connected peripheral vascular disease of the right lower extremity, currently evaluated as 20 percent prior to August 28, 2012, and 40 percent thereafter, on a schedular and extraschedular basis. 2. Entitlement to an increased disability evaluation in excess of 20 percent for the service-connected peripheral vascular disease of the left lower extremity, currently evaluated as 20 percent prior to August 28, 2012, and 40 percent thereafter, on a schedular and extraschedular basis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from November 1970 to November 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO denied an increased disability evaluation in excess of 20 percent for the service-connected peripheral vascular disease of the right lower extremity, and denied an increased disability evaluation in excess of 20 percent for the service-connected peripheral vascular disease of the left lower extremity. In May 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A transcript of his testimony is associated with the claims file. In September 2009 and July 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. Upon remand, the AMC issued another rating decision in December 2012, which increased the disability ratings for the bilateral peripheral vascular disease of the bilateral lower extremities to 40 percent for each extremity. The 40 percent ratings were made retroactively effective from August 28, 2012, the date of a VA examination that reflected findings sufficient to establish entitlement to higher evaluations. This action created staged ratings, and the title page has been adjusted accordingly. The Veteran continued to appeal, requesting even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). The appeals have now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision and remand, along with his paper claims file. In the September 2009 remand, the Board explained that the Veteran had submitted an informal claim of service connection for neuropathy of the lower extremities, to include as secondary to the service-connected peripheral vascular disease. To date, the RO has not addressed this claim and it is once again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. In July 2012, the Board granted the Veteran's TDIU claim, effective December 1, 2009. The RO implemented this decision in a rating decision dated in July 2012. In response, the Veteran submitted a Notice of Disagreement (NOD) in April 2013, disagreeing with the effective date assigned. The Board decision is final. 38 C.F.R. § 20.1100 (2013). If the Veteran wishes to file a motion to revise the July 2012 Board decision due to clear and unmistakable error, he should submit a motion for such in accordance with the provisions set forth in 38 C.F.R. §§ 20.1400-20.1404 (2013). The issues of: (1) entitlement to an increased disability evaluation for the service-connected peripheral vascular disease of the right lower extremity, currently evaluated as 20 percent prior to February 19, 2010, and 40 percent thereafter, on an extraschedular basis; (2) entitlement to an increased disability evaluation for the service-connected peripheral vascular disease of the left lower extremity, currently evaluated as 20 percent prior to February 19, 2010, and 40 percent thereafter, on an extraschedular basis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. Prior to February 19, 2010, the Veteran's peripheral vascular disease of the right lower extremity was manifested by claudication on walking more than 100 yards and diminished peripheral pulses, but was not manifested by claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes or an ankle-brachial index (ABI) of 0.7 or less. 2. Prior to February 19, 2010, the Veteran's peripheral vascular disease of the left lower extremity was manifested by an ABI of 0.9 or less, but was not manifested by claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes or an ABI of 0.7 or less. 3. Since February 19, 2010, the Veteran's peripheral vascular disease of the right lower extremity was manifested by claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes, but was not manifested by persistent coldness of the extremity, an ABI of 0.5 or less, ischemic limb pain at rest, or deep ischemic ulcers. 4. Since February 19, 2010, the Veteran's peripheral vascular disease of the left lower extremity was manifested by claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes, but was not manifested by persistent coldness of the extremity, an ABI of 0.5 or less, ischemic limb pain at rest, or deep ischemic ulcers. CONCLUSIONS OF LAW 1. Prior to February 19, 2010, the criteria for a rating in excess of 20 percent for the peripheral vascular disease of the right lower extremity are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.104, Diagnostic Codes 7199-7114, 7120 (2013). 2. Prior to February 19, 2010, the criteria for a rating in excess of 20 percent for the peripheral vascular disease of the left lower extremity are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.104, Diagnostic Codes 7199-7114, 7120 (2013). 3. Since February 19, 2010, the criteria for a 40 percent disability rating, but no higher, for the Veteran's peripheral vascular disease of the right lower extremity are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.104, Diagnostic Codes 7199-7114, 7120 (2013). 4. Since February 19, 2010, the criteria for a 40 percent disability rating, but no higher, for the Veteran's peripheral vascular disease of the left lower extremity are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.104, Diagnostic Codes 7199-7114, 7120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to and following the initial adjudication of the Veteran's increased rating claims, letters dated in October 2005, March 2006, January 2009, December 2009, and January 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This action was accomplished by the January 2009 notice letter to the Veteran regarding his increased rating claims. Although this letter was not sent prior to the initial adjudication of the Veteran's claims in the December 2005 rating decision, this was not prejudicial to him, since the claims were readjudicated in the February 2009, January 2011, and December 2012 Supplemental Statements of the Case (SSOCs). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also has a duty to assist a Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disabilities currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The Veteran has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his disabilities. 38 C.F.R. § 4.2 (2013). Furthermore, the Veteran was afforded a Board hearing in May 2009. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2013); Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ specifically noted the issues, in pertinent part, as: "entitlement to an increased rating in excess of 20% for peripheral vascular disease of the right lower extremity; entitlement to an increased evaluation in excess of 20% for peripheral vascular disease of the left lower extremity." The Veteran was assisted at the hearing by an accredited representative from The American Legion. The VLJ and the representative asked the Veteran specific questions regarding the element of the claims that was lacking to substantiate the claims for benefits (i.e., the current severity of the service-connected disabilities). The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claims for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its September 2009 and July 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). These remands included scheduling the Veteran for additional VA examinations, which he had in February 2010 and August 2012. The remands also included obtaining the Veteran's recent VA and private treatment records, which were obtained and associated with his claims file. Finally, the remands directed the AMC to readjudicate the claims, which was accomplished in the January 2011 and December 2012 SSOCs. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that an unappealed Board decision dated in February 1999 granted service connection for the Veteran's peripheral vascular disease of the bilateral lower extremities. 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. 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, 38 C.F.R. § 4.104 governs rating criteria pertinent to diseases of the arteries and veins. There is no specific diagnostic code for "peripheral vascular disease;" thus the disability must be rated by analogy to a closely related disease with similar symptoms. When an unlisted disability is encountered, it is permissible to rate it under a closely related disease or injury in which not only the function affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. The RO previously rated the Veteran's service-connected peripheral vascular disease of the right lower extremity, by analogy, to the criteria for rating varicose veins at 38 C.F.R. § 4.104, Diagnostic Code 7120. Under that Code, a 20 percent rating is assigned for varicose veins with the following findings: persistent edema, incompletely relieved by elevation of extremity, with or without beginning statis pigmentation or eczema. A 40 percent rating is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulcerations. Id. Unfortunately, though, the symptomatology associated with Diagnostic Code 7120 is not analogous to the Veteran's symptoms. Although the examiner in February 2010 noted that the Veteran had mild varicose veins, this symptom/disease is significantly overshadowed by other symptoms not associated with varicose veins. The manifestations associated with the service-connected peripheral vascular disease were described as severe. With regard to the criteria associated with varicose veins as noted above, the evidence of record shows that the Veteran has little, if any, edema, and no eczema, symptoms normally associated with varicose veins. The evidence does show claudication inducing pain as the main symptom attributable to the service-connected peripheral vascular disease, in addition to trophic changes such as absence of hair and/or thin skin and a lowered ABI. None of these symptoms are accounted for under the rating criteria associated with varicose veins. Thus, the Veteran's service-connected peripheral vascular disease should be rated based on different criteria which more appropriately describe the symptoms associated with that disability. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). According to the rating schedule at 38 C.F.R. § 4.104, the diagnostic code with the criteria most analogous to the symptoms associated with Veteran's peripheral vascular disease is Diagnostic Code 7114. Diagnostic Code 7114 rates arteriosclerosis obliterans. Under this Code, a claudication on walking more than 100 yards, and diminished peripheral pulses or an ABI of 0.9 or less, warrants a 20 percent rating. Claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and trophic changes (thin skin, absence of hair, dystrophic nails) or an ABI of 0.7 or less, warrants a 40 percent rating. A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or an ABI of 0.5 or less. A 100 percent rating is warranted for ischemic limb pain at rest, and either deep ischemic ulcers or an ABI of 0.4 or less. 38 C.F.R. § 4.104, Diagnostic Code 7114. The notes associated with this Diagnostic Code are set out as follows: Note (1): The ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Note (2): Evaluate residuals of aortic and large arterial bypass surgery or arterial graft as arteriosclerosis obliterans. Note (3): These evaluations are for involvement of a single extremity. If more than one extremity is affected, evaluate each extremity separately and combine (under 38 C.F.R. § 4.25 (2013)) using the bilateral factor (38 C.F.R. § 4.26 (2013)) if applicable. Id. Based on the Veteran's symptoms, which were noted by the February 2010 examiner to be severe, and the rating criteria under Diagnostic Code 7114 and 7120, the Veteran's symptoms more nearly approximate the criteria for assignment of a rating pursuant to Diagnostic Code 7114. The Veteran's symptoms are more closely analogous to the symptoms listed under Diagnostic Code 7114 and the service-connected peripheral vascular disease of the right lower extremity and left lower extremity should be rated under this Code. 38 C.F.R. § 4.104. Accordingly, upon remand, the AMC rated the Veteran's peripheral vascular disease of the bilateral lower extremities under Diagnostic Code 7114. As a result, the Veteran was assigned a 40 percent rating, effective August 28, 2012, for peripheral vascular disease of each lower extremity. The Veteran is also in receipt of a 20 percent rating for each lower extremity under Diagnostic Code 7114 prior to August 28, 2012. The Veteran asserts that he is entitled to higher disability ratings. 38 C.F.R. § 4.104. The Board will begin by addressing the 20 percent ratings in effect prior to August 28, 2012. In applying Diagnostic Code 7114 to the Veteran's appeal, the Board finds that the Veteran is entitled to higher 40 percent disability ratings for his peripheral vascular disease of the bilateral lower extremities, effective February 19, 2010. The evidence of record establishes that he has claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and trophic changes (thin skin, absence of hair, dystrophic nails), to warrant higher 40 percent ratings, effective February 19, 2010. 38 C.F.R. § 4.104, Diagnostic Code 7114. Specifically, at the February 19, 2010, VA examination, the Veteran reported continued burning in both feet, but they felt cold to external touch even while they felt like they were burning. The Veteran reported that the foot pain wakes him up at night. He also described a constant pain in the left anteromedial lower leg near the calf at a severity that varied between 6 (when taking Vicodin) and 9/10. Sitting for more than 5 minutes or walking for more than one-fourth of a block on level ground precipitated the pain. The Veteran could reportedly only walk up to 25 feet (8 yards) on level ground before he had to stop because of severe leg pain. He also reported leg pain at rest. The Veteran reported that his wife helps him with showering. He is unable to go shopping and his social events are severely limited because of limitations on weight bearing due to leg pain. After the procedure in May 2009, the Veteran reported he began working again in June 2009 until his emergency surgery at a private facility in September 2009. From June 2009 until September 2009, the Veteran reported that he was able to drive a truck, although he had some difficulty getting in and out of the cab. However, his leg pains would get so severe that he would have to stop the truck and lie down and rest in a supine position for 15 minutes approximately once every hour before he could resume driving. On examination, the February 2010 VA examiner noted that the Veteran ambulated with a very slow, stiff, and painful gait, with a pronounced limp. He was using a cane. No pedal edema was noted in the lower extremities, however, there was loss of hair below the knees. There were mild varicose veins on both lower extremities. There was some spotty discoloration or hyperpigmentation of the right lower extremity, but no ulceration or active skin lesions evident. The skin was slightly dry. The right lower extremity had an enlarged calf compared to the left, but both calves were soft to the touch and nontender. Posterior tibial pulse on the right lower extremity was 0, nonpalpable. Dorsalis pedis on the right foot was also nonpalpable. The toes on the right foot were cool, slightly pale in appearance. Capillary refill time was 3-5 seconds. The left posterior tibial pulse was 1+, left dorsalis pedis was nonpalpable. Toes on the left foot were warm and pink with capillary refill brisk at less than 3 seconds on the left toes. At the February 2010 VA examination, ABI testing was conducted. His ABIs were greater than one and his pressures were greater than 100. The Veteran was diagnosed with severe peripheral arterial disease of the bilateral lower extremities with claudication symptoms, status post recent aortobifemoral bypass for occluded bilateral common iliac stents. The VA examiner found that the Veteran had significant functional limitations due to leg claudication pains. The examiner noted the numerous hospitalizations related to the Veteran's lower extremity arterial insufficiency. With regard to the impact on his occupational activities, the examiner referred to the Veteran's comment that his vascular surgeons' opined that his peripheral arterial disease was of such a severity that he could not return to work as a truck driver. Additional ABI testing was conducted by VA in February 2011. His ABIs were greater than one and his pressures were greater than 100. The impression was normal examination. VA ABI testing in April 2012 revealed ABIs greater than one bilaterally, with toe pressures greater than 90. The impression was no hemodynamically significant arterial insufficiency of either lower extremity at rest. Based on the aforementioned evidence, and in giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to higher 40 percent disability ratings for his peripheral vascular disease of the bilateral lower extremities, effective February 19, 2010, under Diagnostic Code 7114. 38 C.F.R. § 4.104. The evidence of record establishes that he has claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes (thin skin, absence of hair, dystrophic nails), to warrant higher 40 percent ratings, effective February 19, 2010. 38 C.F.R. § 4.104, Diagnostic Code 7114. Specifically, the February 2010 VA examiner noted that the Veteran had loss of hair below the knees and claudication symptoms, with reports of pain on walking more than 8 yards, causing significant functional limitation. These findings are supported by the aforementioned treatment records. Thus, the Veteran's claims of entitlement to disability ratings in excess of 20 percent, prior to August 28, 2012, for his peripheral vascular disease of the bilateral lower extremities, are granted, and 40 percent ratings are assigned for each extremity, effective February 19, 2010. 38 C.F.R. § 4.104, Diagnostic Code 7114. However, the Board finds that the Veteran is not entitled to disability ratings in excess of 20 percent prior to February 19, 2010, for his peripheral vascular disease of the bilateral lower extremities. The evidence of record does not demonstrate that the Veteran had claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes, or an ABI of 0.7 or less, to warrant higher 40 percent ratings, prior to February 19, 2010. 38 C.F.R. § 4.104, Diagnostic Code 7114. Specifically, on August 11, 2005, the Veteran submitted his increased ratings claims. VA outpatient records dated on August 2, 2005, just prior to the filing of his claims, revealed an ABI of 1.02 on the right and 0.71 on the left. The Veteran reported symptoms of pain, claudication, numbness, and tingling in the lower extremities. His feet were found to be warm. The VA physician determined that there was no evidence of arterial insufficiency to the right lower extremity, but there was evidence of moderate arterial insufficiency on the left. The examiner determined that there was an abnormal response to exercise testing with the left being worse than the right. The examiner stated that this would be consistent with symptoms of claudication. There are no other ABI testing dated one year prior to the Veteran's claim in August 2005, and no subsequent ABI testing until July 2006. On July 27, 2006, at a VA outpatient treatment visit, the Veteran's ABI was 1.1 on the right and 0.77 on the left. The Veteran was diagnosed with moderate ischemia with moderate arterial insufficiency in his left leg. In February 2008, the Veteran was hospitalized for swelling and pain in his lower extremities. The Veteran stated that his right lower extremity had been warm, swollen, and painful prior to this visit. The physician found that the Veteran's right leg was cool to the touch when compared to the left. The Veteran was diagnosed with mild arterial insufficiency with intermittent claudication. At the May 2009 Board hearing, the Veteran testified that he experiences pain and swelling on a daily basis, takes daily medication, uses a cane daily, and has difficulty walking prolonged distances. The Veteran also testified to having edema and discoloration of his skin of the bilateral lower extremities. The Veteran stated that he had to go to the emergency room six or seven times within the last eight months for his service-connected peripheral vascular disease. The evidence of record indicates that the Veteran was hospitalized in May 2009 for left common iliac artery occlusion. On May 14, 2009, his ABI was 1.0 in the right lower extremity and 0.73 in the left lower extremity. He had severe claudication pains at that time. On May 25, 2009, his left lower extremity was warm to the touch. On May 26, 2009, he underwent aortoiliofemoral angiography with placement of bilateral common iliac stents as well as left external iliac angioplasty. The Veteran received a temporary total disability rating for this procedure. After the Veteran healed from that procedure he was released to return to work as a truck driver. However, according to the Veteran, in September 2009, while in Minnesota, he had an acute onset of severe bilateral leg pain to the point that he could not walk. He was taken by ambulance to a private hospital and underwent emergency surgery for occluded stents in the bilateral iliac arteries. He was started on a tissue polypeptide antigen (TPA) medication and then was taken to the operating room for an aortobifemoral bypass procedure. The Veteran subsequently reported numbness and tingling in addition to pain, and some doctors felt that some of his chronic symptoms were not explained by his arterial disease. A November 2009 VA clinical note shows an assessment of severe peripheral vascular disease. It was recommended that the Veteran go on total disability based on his symptoms and disease that was documented in prior notes. Based on the aforementioned evidence, the Board finds that the Veteran is not entitled to disability ratings in excess of 20 percent prior to February 19, 2010, for his peripheral vascular disease of the bilateral lower extremities. The evidence of record does not demonstrate that the Veteran had claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes, or an ABI of 0.7 or less, to warrant higher 40 percent ratings, prior to February 19, 2010. 38 C.F.R. § 4.104, Diagnostic Code 7114. The Board will now address whether the Veteran is entitled to disability ratings in excess of 40 percent for his service-connected peripheral vascular disease of the bilateral lower extremities, since February 19, 2010. As previously noted, a 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or an ABI of 0.5 or less. A 100 percent rating is warranted for ischemic limb pain at rest, and either deep ischemic ulcers or an ABI of 0.4 or less. 38 C.F.R. § 4.104, Diagnostic Code 7114 (emphasis added). In addition to the aforementioned evidence, the Veteran was also afforded another VA examination in August 2012. At that examination, the Veteran and his spouse stated that the Veteran was unable to "do anything," including shopping, because he could not stand for more than 5 minutes without resting. He could not walk more than 10 feet without stopping to rest. It was also difficult for him to sit for short periods of time. The Veteran and his wife denied any ulcers to the Veteran's lower legs or feet. Following a physical examination of the Veteran and a review of the claims file, the August 2012 VA examiner determined that the Veteran had claudication on walking less than 25 yards on a level grade at 2 miles per hour in both lower extremities, but he did not have ischemic limb pain at rest, deep or superficial ischemic ulcers, or persistent coldness of the bilateral lower extremities. The examiner stated that the Veteran had swollen ankles with warm feet upon examination. The Veteran was using a walker at the examination and had to stop about every 10 feet to rest for several seconds. The examiner found that there was no functional impairment in the bilateral lower extremities from the peripheral vascular disease such that no effective function remained other than that which would be equally well severed by an amputation with prosthesis. The examiner noted that the Veteran's ABIs were within normal limits in 2010 and 2012. The examiner also pointed out that the Veteran had not had any vascular surgery since his 2009 surgeries. His physical examination was essentially normal with mildly diminished palpable posterior tibial pulses. The Veteran presented with subjective complaints of severe, constant pain that was consistent with neuropathy and claudication with walking more than 10 feet with a walker. The August 2012 VA examiner determined that the Veteran was currently unable to do any type of physical or sedentary employment. The examiner reasoned that the Veteran was a truck driver full-time for 38 years and was then put on disability in 2009 when he first had his stents placed. The examiner stated that the Veteran had been on total disability since then. Based on all of the aforementioned evidence, the Board finds that the Veteran is not entitled to disability ratings in excess of 40 percent for his service-connected peripheral vascular disease of the bilateral lower extremities, since February 19, 2010. The evidence of record does not establish that the Veteran's peripheral vascular disease of the bilateral lower extremities has displayed claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or an ABI of 0.5 or less, at any time since February 19, 2010, to warrant higher disability ratings of 60 percent. 38 C.F.R. § 4.104, Diagnostic Code 7114. Regarding the persistent coldness requirement, at the February 2010 VA examination, the Veteran stated that he continued to have symptoms of burning in both feet, but reported that they felt cold to external touch even when they felt like they were burning. The examiner, however, did not elaborate on whether the Veteran's coldness of his feet, despite a burning feeling, was the equivalent of "persistent coldness of the extremity" for rating purposes. At the August 2012 VA examination, following a physical examination of the Veteran and a review of the claims file, the examiner found that the Veteran did not have persistent coldness of either extremity. Additionally, since February 19, 2010, VA treatment records have documented that the Veteran's skin and feet were warm to the touch. 38 C.F.R. § 4.104, Diagnostic Code 7114. Regarding the ABI of 0.5 or less requirement, as documented in the aforementioned evidence, at no time since February 19, 2010, have the Veteran's lower extremities been manifested by an ABI of 0.5 or less. The remaining VA examination and VA and private treatment records also do not document an ABI of 0.5 or less in the lower extremities since February 19, 2010, to warrant a higher 60 percent disability rating. 38 C.F.R. § 4.104, Diagnostic Code 7114. Thus, the evidence of record does not establish that the Veteran's peripheral vascular disease of the bilateral lower extremities has been manifested by claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or an ABI of 0.5 or less, since February 19, 2010, to warrant higher disability ratings of 60 percent. 38 C.F.R. § 4.104, Diagnostic Code 7114. Furthermore, the rating criteria for the 100 percent schedular rating under Diagnostic Code 7114 have not been met for either extremity at any time since February 19, 2010. The evidence of record does not document ischemic limb pain at rest, and either deep ischemic ulcers or an ABI of 0.4 or less. In this regard, VA physicians have diagnosed the Veteran with moderate ischemia in his bilateral lower extremities. The Veteran also noted limb pain at rest at the February 2010 VA examination. However, the February 2010 VA examiner did not indicate whether this pain is "ischemic" as noted in the rating criteria for the 100 percent schedular rating under Diagnostic Code 7114. Thus, the Board remanded the claim for an additional VA examination. In this regard, the August 2012 VA examiner specifically found, following a physical examination of the Veteran and a review of the claims file, that the Veteran's bilateral lower extremities were not manifested by deep ischemic ulcers. Furthermore, the August 2012 VA examiner found that the Veteran did not have deep ischemic ulcers of either extremities. The Veteran's ABIs have never been 0.4 or less throughout the appeal. The VA and private treatment records do not provide contrary evidence. Thus, the Board finds that disability ratings of 100 percent are not warranted for the Veteran's service-connected peripheral vascular disease of the bilateral lower extremities. 38 C.F.R. § 4.104, Diagnostic Code 7114. The Board also notes that in the December 2012 rating decision, the Veteran was granted separate compensable disability ratings for his scars of the bilateral lower extremities. Therefore, the Board does not need to address whether separate ratings are warranted for any scars due to the Veteran's service-connected peripheral vascular disease. The Board has also considered whether additional staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the appeal period have the service-connected peripheral vascular disease of the bilateral lower extremities more nearly met or nearly approximated the criteria for higher disability ratings. Accordingly, staged ratings are not for application in the instant case. Finally, the Board notes that the Veteran is already in receipt of a TDIU rating, and thus the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), does not need to be addressed. Further, the issue of extraschedular consideration will be discussed in depth in the remand below. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disabilities are worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. In sum, the schedular criteria for 40 percent disability ratings for the Veteran's service-connected peripheral vascular disease of bilateral lower extremities have been met, effective February 19, 2010. However, the preponderance of the evidence is against the assignment of disability ratings in excess of 20 percent prior to February 19, 2010, and in excess of 40 percent since February 19, 2010, for the service-connected peripheral vascular disease of the bilateral lower extremities. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased disability rating of 40 percent, effective February 19, 2010, for the peripheral vascular disease of the right lower extremity is granted, on a schedular basis, subject to the statutory and regulatory provisions governing the payment of monetary benefits. Entitlement to an increased disability rating of 40 percent, effective February 19, 2010, for the peripheral vascular disease of the left lower extremity is granted, on a schedular basis, subject to the statutory and regulatory provisions governing the payment of monetary benefits. An evaluation in excess of 20 percent prior to February 19, 2010, and in excess of 40 percent since February 19, 2010, for the service-connected peripheral vascular disease of the right lower extremity is denied, on a schedular basis. An evaluation in excess of 20 percent prior to February 19, 2010, and in excess of 40 percent since February 19, 2010, for the service-connected peripheral vascular disease of the left lower extremity is denied, on a schedular basis. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claims can be properly adjudicated. The Board believes it prudent to remand the Veteran's claims of entitlement to increased disability ratings for the peripheral vascular disease of the bilateral lower extremities, in order that he may be considered for extraschedular ratings. Pursuant to 38 C.F.R. § 3.321 (2013), when a case presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, the case may be submitted to the VA Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Under 38 C.F.R. § 3.321(b)(1), the Board is precluded from assigning an extraschedular evaluation in the first instance. Instead, the Board must refer any claim that meets the criteria to the RO for referral for consideration of an extraschedular evaluation to the Director of the Compensation and Pension Service. Id. In this case, the Board finds that the Veteran's service-connected peripheral vascular disease of the bilateral lower extremities presents an exceptional or unusual disability picture that is not adequately described by the applicable rating criteria. Specifically, throughout his appeal, the Veteran has been hospitalized for his peripheral vascular disease of the bilateral lower extremities, to include having stents placed in his legs for the treatment of these disabilities. See VA treatment records dated in May 2009 and September 2009. A November 2009 VA clinical note shows an assessment of severe peripheral vascular disease. It was recommended that the Veteran go on total disability based on his symptoms and disease that was documented in prior notes. The February 2010 VA examiner found that the Veteran had significant functional limitations due to leg claudication pains. The examiner noted the numerous hospitalizations related to the Veteran's lower extremity arterial insufficiency. Regarding the impact on his occupational activities, the examiner referred to the Veteran's comment that his vascular surgeons' opined that his peripheral arterial disease was of such a severity that he could not return to work as a truck driver. At the August 2012 VA examination, the examiner determined that the Veteran was currently unable to do any type of physical or sedentary employment. The examiner reasoned that the Veteran was a truck driver full-time for 38 years and was then put on disability in 2009 when he first had his stents placed. The examiner stated that the Veteran had been on total disability since then. Unemployability and hospitalizations for stents are not provided for under the applicable rating criteria for peripheral vascular disease. Accordingly, the Board finds that the criteria for submission to the Director of the Compensation and Pension Service for consideration of extraschedular ratings for the service-connected peripheral vascular disease of the bilateral lower extremities have been met. 38 C.F.R. § 3.321(b)(1); see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Accordingly, the case is REMANDED for the following actions: 1. Refer the question of whether the Veteran is entitled to the assignment of extraschedular disability ratings for his service-connected peripheral vascular disease of the bilateral lower extremities to the VA Director of the Compensation and Pension Service, in accordance with the provisions of 38 C.F.R. § 3.321(b). The Director of the Compensation and Pension Service is requested to provide adequate reasons and bases for the decision made. 2. After the above actions have been completed, readjudicate the Veteran's increased rating claims, on an extraschedular basis. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. (CONTINUED ON NEXT PAGE) The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs