Citation Nr: 1609382 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 06-12 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for peripheral vascular disease of the right lower extremity from March 27, 2013. 2. Entitlement to an increased rating in excess of 20 percent for peripheral vascular disease of the left lower extremity from March 27, 2013. REPRESENTATION The Veteran is represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Radke, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which granted separate compensable ratings for peripheral vascular disease of the right and left lower extremities and assigned two 20 percent ratings from March 27, 2013. As this appeal has a complicated procedural history, further discussion is warranted. In April 2007, the Veteran filed a claim for increased compensation for service connected diabetes mellitus, type II. In a June 2014 decision, the Board decided the claim for an increased rating for diabetes, but remanded the issue as to whether separate, compensable ratings for bilateral peripheral vascular disease are warranted for a VA medical opinion as to the severity of the peripheral vascular disease. In October 2014, a VA opinion was provided, and in April 2015, the RO granted separate ratings of 20 percent each for peripheral vascular disease of the right and left lower extremities from March 27, 2013, the date the evidence first reflected compensable ratings were warranted. The appeal returned to the Board, and in an August 2015 decision, the Board again remanded for another VA examination and opinion as to the severity of the peripheral vascular disease. In October 2015, a VA opinion was provided. As discussed below, the Board finds that there has been substantial compliance with the prior Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDING OF FACT For the entire rating period from March 27, 2013, the peripheral vascular disease of both the right and left lower extremities has been manifested by symptoms of claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, but without tropic changes or persistent coldness of either extremity. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for peripheral vascular disease of the left lower extremity has not been met or more nearly approximated for the period from March 27, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7114 (2015). 2. The criteria for an increased rating in excess of 20 percent for peripheral vascular disease of the right lower extremity has not been met or more nearly approximated for the period from March 27, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7114 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). 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. 38 C.F.R. § 3.159(b)(1). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board finds that this duty to assist was satisfied in July 2007 and August 2008 letters to the Veteran, which informed the Veteran of how disability ratings and effective dates are assigned. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, private treatment records, VA treatment records, VA examination reports, and lay statements. VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in March 2013, October 2014, and October 2015. The Board finds that the VA examination reports, taken in light of the other lay and medical evidence of record, are thorough and adequate and provide a sound basis upon which to base a decision with regard to the issue on appeal. The VA examiner reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted a physical examination, and offered opinions with supporting rationale. Furthermore, as stated above, the Board finds that there has been substantial compliance with the prior Board remand orders. As discussed above, in June 2014, the Board remanded the issue of whether separate compensable ratings for bilateral peripheral vascular disease were warranted. Specifically, the Board remanded to obtain a medical opinion as to whether the peripheral vascular disease was of such a severity to yield an ankle/brachial index of 0.7 or less. The Board stated that, if warranted, further testing should be performed unless medically contraindicated or would not yield accurate results. In October 2014, a medical opinion was provided, and no examination or ankle/brachial index testing was conducted. The VA examiner stated that the ankle/brachial index is the ratio of the blood pressure in the ankle to the blood pressure in the arm, that it is an objective measurement used to predict the severity of peripheral arterial disease, and that a false negative ankle/brachial index result may occur in patients with noncompressible arteries (ex: heavily calcified arterial vessels). The VA examiner further stated that peripheral vascular disease has similar symptoms of peripheral neuropathy, which the Veteran additionally has. The VA examiner opined that, because the ankle brachial index is an objective measurement, a prediction of the value based only on the subjective complaints of the Veteran would be speculation. In August 2015, the Board found that the October 2014 opinion was not sufficiently responsive to the prior remand, as the examiner did not explain why testing would yield inaccurate results or would be medical contraindicated, and again remanded the appeal for a new medical opinion. The Board requested that the Veteran should undergo an ankle/brachial test unless medically contraindicated, and if it is medical contraindicated, the VA examiner should still state an opinion as to whether the Veteran would be expected to yield an ankle/brachial index of 0.7 or less, or provide a complete explanation as to why such an opinion would be speculation. In October 2015, a new medical opinion was provided, which addressed why an ankle/brachial test could not be performed. The VA examiner stated that ankle/brachial index could not be calculated because the Veteran's runoff arteries have calcified walls. The VA examiner fully explained that performing another ankle/brachial index would be futile, as the arteries cannot be compressed in order to determine an ankle/brachial index. The VA examiner further stated that it is impossible to estimate whether the ankle/brachial index is above or below 0.7 with only duplex scans and subjective symptomatology, and that such an estimate would be mere speculation, as the examiner could only opine based on the Veteran's subjective complaints of symptoms that be manifestations of peripheral neuropathy, as the two disabilities manifest similar symptoms. The Board finds that the October 2015 VA opinion is in substantial compliance with the prior Board remand order, and no additional remand is necessary to adjudicate this appeal. The VA examiner provided a full rationale as to why ankle/brachial index testing could not be performed, as it would be futile because the Veteran's arteries cannot be compressed. The VA examiner additionally provided a full rationale for the explanation as to why an estimate based on other testing and the Veteran's symptomatology would be speculation, as the symptomatology, as stated by the Veteran, would overlap with symptomatology from the unrelated peripheral neuropathy. Furthermore, in the February 2016 informal hearing presentation, the representative additionally stated to the Board that remanding the claim for an ankle/brachial index would be futile and would not result in any benefit to the Veteran, and the alternative criteria for evaluating peripheral vascular disease would suffice. For these reasons, the Board finds that the October 2015 opinion substantially complies with the prior remand order, and it is adequate as it was based on review of the medical history and record and provides opinions with complete rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was afforded an opportunity to testify before a Veterans Law Judge, but declined. See October 2008 substantive appeal (on a VA Form 9). Therefore, as VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating for Bilateral Peripheral Vascular Disease Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2015). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2015). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as in this case, 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, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered, and found inappropriate, the assignment of staged ratings for any part of the increased rating period on appeal. The Veteran generally contends that he is entitled to an increased rating for peripheral vascular disease in excess of 20 percent for both the left and right lower extremities. The Veteran is currently in receipt of two 20 percent ratings for peripheral vascular disease of the lower right and left extremities under 38 C.F.R. § 4.104, Diagnostic Code 7114. Under Diagnostic Code 7114, a 20 percent rating will be assigned when there is claudication on walking more than 100, and diminished peripheral pulses or ankle/brachial index of 0.9 or less. A 40 percent rating will be assigned for peripheral vascular disease with 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 ankle/brachial index of 0.7 or less. A 60 percent rating will be assigned for claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. A 100 percent rating will be assigned with ischemic limb pain at rest, and either deep ischemic ulcers or ankle/brachial index of 0.4 or less. In connection to the claim for an increased rating for diabetes mellitus, type II, the Veteran was afforded a VA examination in May 2007. At that time, the VA examiner did not diagnosis peripheral vascular disease or report symptoms of peripheral vascular disease. In July 2009, the Veteran was afforded another VA examination in connection with the claim for an increased rating for diabetes mellitus, type II. At that time, the VA examiner noted that the Arterial Doppler testing in August 2006 revealed peripheral vascular disease in both lower extremities; however, at that time, the Veteran did not experience symptoms of claudication to warrant separate, compensable ratings. No trophic changes or persistent coldness in the extremities was noted. In March 2013, the Veteran was afforded another VA examination to help assess the severity of the service-connected diabetes mellitus and complications. At that time, the VA examiner noted bilateral claudication on walking between 25 to 100 yards on a level grade at 2 miles per hour. The Veteran had diminished peripheral pulses bilaterally. The VA examination did not show any trophic changes in skin, hair, or nails. Ankle/brachial index testing was unable to be performed due to calcification of arterial walls. The Veteran complained of recurrent daily pain, including burning sensations, craping, tingling, and needle sensations in the legs and feet. The Veteran did not complain of persistent coldness of the lower extremities. In October 2015, the Veteran was afforded a VA opinion regarding the severity of the bilateral peripheral vascular disease. While the VA examiner could not opine as to the estimated ankle/brachial index, the VA examiner opined that the peripheral vascular disease is mild based on the Arterial Dupplex studies on December 15, 1997, August 31, 2006, and October 21, 2014, which reported atherosclerotic plaques not causing significant stenosis by velocity criteria and adequate distal leg arterial run off in conjunction with the Veteran's symptoms. Review of VA treatment records for the entire rating period on appeal do not show evidence of trophic changes to the lower extremities. February and November 2013 diabetic foot examinations specifically did not reveal trophic changes to the skin, hair, or nails. March 2013 skin examinations did not reveal trophic changes. VA treatment records are silent for complaints of any type of trophic changes (such as thin skin, absence of hair, dystrophic nails) or complaints of persistent coldness of the bilateral lower extremities, and the Veteran has not alleged any of those symptoms for any portion of the rating period since March 27, 2013. However, as discussed above, for the entire rating period, ankle/brachial index testing was unable to be performed due to the calcification of the arterial walls. After review of the evidence of record, both medical and lay, the Board finds that the criteria for a 40 percent rating for either lower extremity has not been met or more nearly approximated for any period since March 27, 2013. The Board notes that the Veteran experiences bilateral claudication on walking at 25 to 100 yards on level grade at 2 miles per hour, which is a symptom of functional impairment contemplated in the rating schedule for a 40 percent rating. However, in this case, the criteria specifically include the conjunctive "and," so that the symptom of claudication on walking at 25 to 100 yards on level grade at 2 miles per hour must be present in conjunction with either trophic changes (such as thin skin, absence of hair, or dystrophic nails) or ankle/brachial index of 0.7 or less to meet the criteria for a 40 percent rating. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive requirement must be met in order for an increased rating to be assigned). The Veteran has not asserted, and the evidence does not otherwise suggest, trophic changes or persistent coldness in either extremity (to demonstrate symptomatology consistent with a 60 percent rating), and, as discussed above, ankle/brachial index testing is unable to be performed due to calcified arteries, so an opinion cannot be provided as to an estimate of the ankle/brachial index without resorting to speculation. Therefore, the Board finds that the criteria for an increased rating in excess of 20 percent for peripheral vascular disease of the left and right lower extremities has not been met or more nearly approximated for any portion of the increased rating period since March 27, 2013. Extraschedular and TDIU Considerations The Board has considered whether referral for an extraschedular rating would have been warranted for the bilateral peripheral vascular disease for any part of the rating period. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and functional impairment caused by the bilateral peripheral vascular disease are all specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria and Diagnostic Code 7114 specifically provide for disability ratings based on claudication walking between 25 to 100 yards on level grade at 2 miles per hour. Claudication, defined as "limping or lameness," specifically includes symptoms of pain, tension, and weakness in a limb when walking. See Dorland's Illustrated Medical Dictionary at 369 (32nd ed. 2012). These symptoms of pain on walking are expressly considered in rating criteria in 38 C.F.R. § 4.104 and Diagnostic Code 7114. Furthermore, the Veteran is service-connected for peripheral neuropathy of the lower extremities and therefore already compensated for symptoms of numbness, tingling, and needles in the legs and feet. See Esteban v. Brown, 6 Vet. Appl. 259 (1994) (stating the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the bilateral peripheral vascular disease, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court, in Rice v. Shinseki, 22 Vet. App. 447 (2009), held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and may be part of the claim for an increased rating. In this case, the Board has previously granted TDIU in the June 2014 decision, effective the entire rating period currently on appeal. Accordingly, the Board concludes that a claim for TDIU has not been raised by the Veteran or the evidence of record. ORDER An increased rating in excess of 20 percent for right lower extremity peripheral vascular disease is denied. An increased rating in excess of 20 percent for left lower extremity peripheral vascular disease is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs