Citation Nr: 1417471 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 11-01 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for amputation of the left 3rd toe, as secondary to the service-connected peripheral vascular disease of the lower extremities. 2. Entitlement to an initial rating in excess of 20 percent for peripheral vascular disease of the left lower extremity. 3. Entitlement to an initial compensable rating for peripheral vascular disease of the right lower extremity REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from July 1977 to May 1988. He also had subsequent periods of active duty for training and inactive duty for training as a member of the U.S. Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the special processing unit, "Tiger Team", at the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA), and a July 2010 rating decision of the Little Rock, Arkansas RO. The December 2009 rating decision, in pertinent part, granted entitlement to service connection for peripheral vascular disease (PVD), and assigned a 0 percent (non-compensable) rating, effective from January 28, 2009. The North Little Rock, Arkansas RO, however, retains jurisdiction over this appeal. Accordingly, this matter further comes before the Board from a July 2010 rating decision of the North Little Rock RO, which found that new and material evidence had not been submitted to reopen the claim for service connection for amputation of the third left toe as secondary to the service-connected hypertension and as secondary to PVD. Finally, this matter also comes before the Board from a January 2011 rating decision of the North Little Rock RO, which assigned a 20 percent rating for PVD of the left lower extremity, effective from January 28, 2009, and granted service connection for PVD of the right lower extremity, and assigned a 0 percent rating, effective from January 28, 2009. In August 2012, the Veteran testified at a Travel Board hearing at the Little Rock, Arkansas RO before a Veterans Law Judge; a transcript of that hearing is associated with the claims folder. The Board notes that that Veterans Law Judge is now retired and no longer employed by the Board. The Veteran was apprised of this fact in a letter dated in February 2014, at which time he was also informed of his right to a hearing before another Veterans Law Judge, if he so desired. In March 2014, the Veteran responded that he did not wish to appear at a hearing, and requested that the Board consider his case based on the evidence of record. The Board will therefore proceed with adjudication at this time. With regard to the Veteran's claim to reopen, before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been presented or secured sufficient to reopen a prior final decision. See Barnett v. Brown, 8 Vet. App. 1 (1995); 83 F.3d 1380 (Fed. Cir. 1996). Furthermore, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The issues of entitlement to service connection for amputation of the 3rd toe and entitlement to higher initial ratings for PVD of the lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2004 rating decision denied the Veteran's claim of service connection for the amputation of the left 3rd toe, essentially based on a finding that the competent medical evidence of record showed that the Veteran's toe amputation was due to his diabetic gangrene and not his service-connected hypertension. The Veteran did not appeal this decision and it became final. 2. Evidence was received since the RO's October 2004 rating decision that is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection for amputation of the left 3rd toe. CONCLUSIONS OF LAW 1. The October 2004 RO rating decision, which denied service connection for amputation of the left 3rd toe is the last final disallowance of that claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d) (2013). 2. Evidence received since the October 2004 RO rating decision is new and material as to the request to reopen the claim for service connection for amputation of the left 3rd toe; thus, the claim for service connection is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) provisions with regard to the matter on appeal, but finds that, given the favorable action taken below, no further analysis of the development of the claim is needed. II. New and Material Evidence New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether the low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). An October 2004 rating decision denied the Veteran's claim of service connection for amputation of the left 3rd toe, essentially based on a finding that the competent medical evidence of record showed that the Veteran's toe amputation was due to his diabetic gangrene and not his service-connected hypertension. The Veteran did not appeal this decision and it became final. The evidence of record at the time of the October 2004 rating decision included VA treatment records, a VA examination report dated in August 2004, and the Veteran's contentions. VA treatment records showed that in May or August 2003 the Veteran underwent amputation of the left 3rd toe, by a private medical provider, due to a toe infection. In September 2003, he was seen for a history of left 3rd toe amputation site drainage for three weeks. He had been on antibiotics, but an x-ray was suggestive of bone destruction distal 1/2 of proximal phalanx. The assessment was focal osteomyelitis, left 3rd toe amputation stump site and PVD, moderate on left with probable healing range toe pressures (pending). Thereafter, he underwent a bone scan which confirmed osteomyelitis was present. He was then scheduled for amputation of 3rd toe stump, left foot, in October 2003. On a VA examination in August 2004, it was noted that the Veteran was a diabetic and underwent amputation of the left great toe for treatment of diabetic gangrene. The examiner opined that his hypertension was not a complication of his diabetes. The evidence received since the October 2004 rating decision includes VA and private treatment records, and further statements from the Veteran. Significantly, in these statements, the Veteran has asserted that his amputation of the left 3rd toe may be related to his service-connected peripheral vascular disease. The Board concludes that the Veteran's contentions regarding the amputation of the left 3rd toe being related to his service-connected peripheral vascular disease are new and material with respect to the issue of service connection for amputation of the left 3rd toe. These statements were not previously of record at the time of the October 2004 rating decision, as at that time the Veteran attributed his amputation of the left 3rd toe solely to his hypertension. As noted above, the claim is to be reopened if the newly received evidence results in consideration of an alternative theory of entitlement. See Shade v. Shinseki, supra. Consequently, the Veteran's claim of entitlement to service connection for amputation of the left 3rd toe is reopened. ORDER New and material evidence sufficient to reopen the previously denied claim for service connection for amputation of the left 2rd toe has been received; the appeal is granted to this extent only. REMAND 1. Service Connection for Amputation Left 3rd Toe The Veteran essentially contends that his peripheral vascular disease of the lower extremities caused him to have poor blood circulation in his feet, which prevented a cut he had on his toe from healing, which led to an infection, which eventually necessitated amputation of the left 3rd toe. At his hearing in August 2012, the Veteran testified that even if diabetes caused the initial problem with his left 3rd toe, it was his PVD that caused a lack of blood flow, which made the situation worse. In a VA treatment record dated in August 2011, it was noted that the Veteran had had his third toe amputated due to infection prior to leg revascularization. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence "indicates" that the veteran's disability "may" be associated with his service is a low threshold. Id. Thus, considering that the prior VA examination dated in 2004 only addressed whether the amputation was related to hypertension, and considering the record on appeal, including the Veteran's contentions and the medical records, the Board finds that a VA examination/opinion is in order to address whether his amputation of the left 3rd toe may be related to the service-connected PVD of the lower extremities. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, supra. In that regard, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Also, a claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 2. Higher Initial Ratings for PVD of the Lower Extremities The Veteran essentially contends he should be entitled to higher ratings for PVD of his right and left lower extremities. Although further delay is regrettable, the Board finds that there is a suggestion that his PVD may have worsened since the last VA examination in 2009; thus a VA examination is warranted to determine the current severity of his PVD of the lower extremities. The Board also notes that a review of several pieces of the most recent medical evidence show that the Veteran's lower extremities are impacted by diabetic neuropathy and radiculopathy, in addition to the PVD, and a distinction must be made, to the extent possible, which symptoms and impairment may be attributed to his PVD. By way of a brief history, the Board notes that on the most recent VA examination in July 2009, it was noted that a year earlier the Veteran underwent angioplasty of the proximal leg vessels bilaterally and had stents placed in the popliteal and peroneal vessels. His ankle brachial indices following the procedure were greater than 1 bilaterally, and he had significant improvement in his cramping, but sometimes had leg cramps at night if he went for several weeks without much exercise. On examination, he had palpable pulses at both dorsalis pedis and posterior tibial areas bilaterally, and pulses were in general stronger in the right leg than the left. He had no signs of venous insufficiency in the legs. Ankle brachial indices (ABI) in the left leg were .94 at the dorsalis pedis and .8 at the posterior tibial, and in the right leg was .98 at the dorsalis pedis and .94 at the posterior tibial, which was noted to be slightly less than the measurements obtained by his cardiologist a month earlier. The diagnoses included peripheral arterial disease status post angioplasties and stents. The examiner noted that the Veteran had longstanding hypertension and insulin dependent diabetes which was more likely than not contributing factors to his peripheral artery disease. A private treatment record from SAMA Healthcare Services, P.A. dated in October 2010, showed that the Veteran complained of muscle weakness in his legs that developed four to five months before. He reported he did not clear obstacles with his foot like he used to. He had some level of numbness that had been related to diabetic neuropathy, worse on the left than the right. The assessment was that he had several things going on at the same time leading to left leg weakness, including peroneal neuropathy, diabetic polyneuropathy, and L5 radiculopathy on the left. VA treatment records showed that in August 2011, the Veteran was seen in the podiatry clinic and it was noted that he had a drop foot brace on the left side. He had a history of smoking for around 25 years before he quit. He had a history of peripheral arterial disease. He was followed here at the VA for this, but he had since been seen at the Arkansas Heart Hospital where he stated that stents had been placed in both legs. He stated that his flow on the right side was at 100% and was 80% on the left. He last saw the Heart Hospital for vascular retesting in spring 2011. He had no claudication history, but he did relate occasional nocturnal cramps that did not sound vascular in nature. Examination revealed skin tone and texture was within normal limits, and pulses were palpable bilaterally. Several of his nails were thickened and dystrophic, but no paronychia was present bilaterally. The diagnoses included drop foot, left foot, and dystrophic nails. In August 2012, the Veteran testified that due to his vascular disease, he was suffering from muscle cramps in his legs, left foot drop problems, the hurting and cramping of his legs when walking, problems with tripping when walking, missing some hair on his legs, numbness in the legs, and his legs being cold to touch. He testified that he was last treated for his PVD of the lower extremities in 2008, when he had stents placed in his legs, which helped with his circulation, but he still had problems walking and with pain in his legs. He also testified that in last June or July (2011) the blood going to his legs was checked at the Arkansas Heart Hospital. In light of the foregoing, which suggests there may have been an increase in the severity of the service-connected PVD of the lower extremities, a remand is warranted in order to schedule a VA examination to assess the current severity of the Veteran's PVD of the lower extremities. The Board also notes that this is a claim for higher initial ratings, and that when a current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the case is REMANDED for the following action: 1. With any assistance needed from the Veteran, obtain the private treatment records regarding his initial amputation of the left 3rd toe in either May or August 2003. Further, obtain any recent VA or private medical records, dated from 2012 to the present, regarding treatment for his PVD of the lower extremities. This should specifically include recent treatment records from the Arkansas Heart Hospital, including any records from the appointment the Veteran reported occurred in June or July 2011,which measured the blood going into his lower extremities. An effort to obtain any outstanding records should then be made, and any such records should be associated with the Veteran's claims folder or efolder. A negative reply should be requested. 2. Schedule the Veteran for an appropriate VA examination to determine whether amputation of the left 3rd toe may be related to his PVD of the lower extremities, whether directly or by aggravation, and to determine the current severity of his PVD of the right and left lower extremities. The claims folder and efolder must be made available to the examiner for review, and the examiner should specifically note in the examination report that the files have been reviewed. a. The examiner should be asked to provide opinion(s) as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that the Veteran's amputation of the left 3rd toe was causally related to, or aggravated by, his PVD of the lower extremities. b. With regard to the current severity of PVD of the lower extremities, the examiner should describe in detail all symptoms reasonably attributable to the service-connected PVD and its current severity, particularly in terms of the rating criteria at 38 C.F.R. § 4.104, Diagnostic Code 7114. The examiner should indicate if the PVD is manifested by claudication on walking, and if so, indicate whether there is claudication on walking more than 100 yards, between 25 and 100 yards, or less than 25 yards. The examiner should also indicate whether his PVD of either or both extremities is manifested by diminished peripheral pulses, trophic changes (thin skin, absence of hair, dystrophic nails), persistent coldness of the extremity, ischemic limb pain at rest, or deep ischemic ulcers. The examiner should also note the ankle-brachial index (ABI) level for each extremity. c. The examiner must explain the rationale for all opinions given. If unable to provide any of the requested opinions without resorting to speculation, it should be so stated along with an explanation of the reason(s) therefor. If the examiner feels the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, review the claims folder and readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), afforded an opportunity to respond, and the case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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. 2013). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs