Citation Nr: 1421395 Decision Date: 05/12/14 Archive Date: 05/21/14 DOCKET NO. 09-05 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a separate compensable rating for bilateral lower extremity peripheral vascular disease. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1968. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA Regional Office (RO)) in Atlanta, Georgia. In December 2007, the appellant testified at a hearing before a Decision Review Officer at the RO. In September 2012, he testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO. The case was remanded in February and September 2013. FINDINGS OF FACT Clinical findings show a normal ankle/brachial index (not 0.9 or less), without objective evidence of claudication and diminished peripheral pulses. CONCLUSION OF LAW A separate compensable rating for peripheral vascular disease of the lower extremities is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7114 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with the notice requirements of the Veterans Claims Assistance Act of 2000 would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that an additional examination for peripheral vascular disease is in order. Pursuant to the September 2013 remand, the Veteran was afforded additional VA examination for peripheral vascular disease in October 2013. All treatment records and examination reports have been associated with the electronic file. Hence, there has been substantial compliance with the September 2013 remand instructions, and no further action is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Relevant Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 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. Under Diagnostic Code 7114, a 20 percent (minimum compensable) rating is assigned for arteriosclerosis obliterans with claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. 38 C.F.R. § 4.104, Diagnostic Code 7114 (2013). Notes following Diagnostic Code 7114 provides: The ankle/brachial index 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. 38 C.F.R. § 4.104, Code 7114, Note (1). The ratings are for involvement of a single extremity; if more than one extremity is affected, each extremity is evaluated separately and combined (under 38 C.F.R. § 4.25), using the bilateral factor (38 C.F.R. § 4.26), if applicable. 38 C.F.R. § 4.104, Diagnostic Code 7114, Note (3). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. At an August 2006 VA examination, the Veteran was diagnosed with diabetes mellitus as well as peripheral vascular disease, due to an abnormal ankle/brachial index. The Veteran reported that he did not experience leg pain with walking distances. Doppler test results showed ankle brachial index (ABI) measurements of 1.35 on the right and 1.54 on the left. There were no subjective factors for peripheral vascular disease; however, the examiner indicated that there was an abnormal ABI. In an addendum, however, the examiner indicated that the ABI results were in fact normal. In January 2007, the Veteran was granted service connection for diabetes mellitus with cataracts and bilateral lower extremity peripheral vascular disease. July 2008 VA treatment records show that in a cardiology consult the Veteran's lower extremity pulses were normal. March 2010 VA treatment note showed no claudication. The Veteran appealed the assignment of an initial 20 percent rating for diabetes mellitus with cataracts and bilateral lower extremity peripheral vascular disease, and in February 2013, the Board remanded the current issue in part to provide the Veteran with a VA examination to determine the current severity of his diabetes mellitus "and all associated residuals." While the Veteran was afforded a VA veins and arteries examination in June 2013, the examiner discussed only the Veteran's coronary artery disease. The examiner did not consider or complete the examination report sections concerning peripheral vascular disease. Peripheral vascular disease was also not discussed in the April 2013 VA examination for diabetes mellitus. As such, in September 2013 the Board remanded the question of entitlement to a separate compensable evaluation for peripheral vascular disease in order to afford the Veteran a VA examination to address its severity. In October 2013 the Veteran was afforded a VA examination for peripheral vascular disease of the lower extremities. The examiner indicated that the Veteran's records had been reviewed. The Veteran did not have a vascular disease (arterial or venous). The Veteran reported experiencing a myocardial infarction in May 2005, and that he had been told he had a 75 percent blockage in his arterial veins and arteries, and underwent surgery for four arteries and one vein. He indicated that it was during his myocardial infarction treatment that he was diagnosed as having diabetes. He indicated that in 2007 he had a stent placed and that in February 2013 he was treated for atrial fibrillation and left ventricle thrombus. The Veteran had not undergone amputation of an extremity due to a vascular condition. He did not use any assistive devices as a normal mode of locomotion. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by amputation with prosthesis. The Veteran had related scars due to the condition or treatment of the condition; however, they were not painful and/or unstable, or of a total area of 39 square centimeters or greater. There were no other pertinent physical finding related to the condition. November 2013 ABI testing was performed in accordance with the examination. Right ankle brachial index measurements were of 1.21 for the right thigh, 1.34 for the right calf, posterior tibial (PT) systolic pressure of 1.26 and dorsalis pedis (DP) systolic pressure of 1.15. Left ABI measurements were of 1.27 for the left thigh, 1.35 for the left calf, 1.20 PT systolic pressure, and 1.21 DP systolic pressure. November 2013 vascular lab results indicated palpable bilateral PT and DP pulses, and ABI's pulse volume recordings and segmental pressures were within normal limits. The Veteran was unable to complete duties that required moderate physical exertion; however, his physical limitations were not due to peripheral vascular disease. The examiner specifically indicated that measurement of the ABI was completed and was within normal limits. The examiner indicated that the ABI diagnostic study was considered the gold standard of diagnosing peripheral vascular disease. The examiner also reviewed the August 2006 VA examination, and noted that the ABI was then normal. The examiner observed that the provider had erroneously noted that the ABI was abnormal in one section and then in an addendum section reported that the ABI was normal with Doppler test results on the ABI on the right of 1.35 and 1.54 on the left. The Veteran denied claudication when walking and reported that he walked one half mile four days a week without lower extremity pain. The Veteran denied persistent coldness of the lower extremities; ischemic limb pain at rest; or ulcerations to the bilateral lower extremities. Vascular lab results confirmed that the ABI for the right and left lower extremities were within normal limits. Because compensable complications of diabetes mellitus warrant separate ratings per Note 1 to Diagnostic Code 7913 the Veteran seeks an initial compensable evaluation for peripheral vascular disease, which is rated according to Diagnostic Code 7114. Here the evidence preponderates against entitlement to a separate compensable (20 percent) rating. Clinical findings show that the Veteran's ABI measurements were normal. Further, the Veteran does not have diminished peripheral pulses or claudication. This disability picture does not support a claim for a 20 percent rating for peripheral vascular disease. Therefore, a compensable rating for this disease cannot be granted. Additionally, there is no indication that there is lower extremity peripheral vascular disease that warrants a compensable rating under any other diagnostic code. The Veteran has not been shown to have had grafting or surgery on account of his peripheral vascular disease. Further, there is no evidence of other cardiovascular symptoms due to peripheral vascular artery disease to warrant an initial compensable rating under any other diagnostic code relating to the cardiovascular system. See 38 C.F.R. § 4.104, Diagnostic Codes 7000-7113, 7115-7123 (2013). The Board has carefully considered the Veteran's pleadings regarding his symptoms, and acknowledges his assertions that he is entitled to a separate compensable rating for peripheral vascular disease. While the Veteran is competent to report symptoms he is not competent to identify a specific level of disability for his disorder, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's disability has, however, been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination and treatment records) directly address the criteria under which the disability is evaluated. Staged ratings have been considered and are not warranted in this case. In sum, ever since the award of service connection for diabetes mellitus with peripheral vascular disease, the Veteran's peripheral vascular disease has appropriately not been assigned a separate compensable evaluation according to Diagnostic Code 7114. The record establishes that the rating criteria are adequate for evaluating the Veteran's peripheral vascular disease, to the extent that its symptoms are present. The evidence reflects that the manifestations and the effects of this disability have been fully considered and are contemplated by the rating schedule. Therefore, referral for an extraschedular rating is not indicated at this time. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching such a conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3. ORDER Entitlement to a separate initial compensable rating for peripheral vascular disease is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs