Citation Nr: 1751789 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-41 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a compensable rating for residuals of thrombosis of the right subclavian vein (vascular disability). 2. Entitlement to a compensable rating for right thoracic outlet syndrome associated with residuals of thrombosis of right subclavian vein. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to September 1967, including combat service in the Republic of Vietnam earning the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that denied entitlement to a compensable rating for the Veteran's vascular disability. This matter was remanded by the Board in May 2013 for further development, including a medical opinion as to whether the Veteran has right thoracic outlet syndrome that is related to the Veteran's service-connected vascular disability. The ordered development was completed, and a positive medical opinion was provided. As such, the RO granted service connection for right thoracic outlet syndrome on a secondary basis in a May 2017 rating decision. As this claim is part of the Veteran's claim for an increased rating for thrombosis of the right subclavian vein, the Board has jurisdiction of both claims on appeal. FINDINGS OF FACT 1. The Veteran's vascular disability is productive of residual swelling that more nearly approximates traumatic arteriovenous fistula with edema of the right upper extremity. 2. The Veteran's right thoracic outlet syndrome is productive of right upper extremity numbness, weakness and painful motion after repetitive use over time. 3. In a July 2015 letter, the Veteran was asked to provide information necessary to adjudicate a claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed and he has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for residuals of thrombosis of the right subclavian vein have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.104, Diagnostic Code 7113 (2017). 2. The criteria for a disability rating of 10 percent for right thoracic outlet syndrome have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). 3. By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate a claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5) (2012); 38 C.F.R. § 3.158(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks a higher rating for his service-connected residuals of thrombosis of the right subclavian vein disability. Throughout the appeal period, his symptoms have included right upper extremity pain, swelling, numbness, weakness and fatigue. He also reported that his right arm disability causes problems with employment. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board finds that the Veteran's vascular disability symptoms warrant a 20 percent rating under the criteria applicable to traumatic arteriovenous fistula. The Veteran's vascular disability in an unlisted condition and has been rated under Diagnostic Code (DC) 7199-7111 relating to aneurysm of a large artery since November 23, 1977. See 38 C.F.R. § 4.27. The Board finds that DC 7113, rather than DC 7111, more accurately reflects the disability and symptomatology exhibited by the Veteran, and thus warrants the change in diagnostic code under which he is rated. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although the Veteran was originally rated under DC 7111, the record shows that the Veteran's disability affects his veins rather than an artery. See July 2016 VA Examination Report. Additionally, as noted above, the Veteran's vascular disability is productive of swelling, which is contemplated under DC 7113. Therefore, the Board finds that the Veteran is more appropriately rated under DC 7113. Under DC 7113, a 20 percent rating is warranted for a traumatic arteriovenous fistula with edema or stasis dermatitis of an upper extremity. A 40 percent rating is warranted without cardiac involvement but with edema, stasis dermatitis and either ulceration or cellulitis of an upper extremity. A 60 percent rating is warranted without heart failure but with enlarged heart, wide pulse pressure and tachycardia. A 100 percent rating is warranted with high output heart failure. In this case, the VA examinations and medical records show that the Veteran's symptoms during the appeal period have included right upper extremity pain, swelling, numbness, weakness and fatigue. See April 2007 and July 2016 VA Examination Reports. The July 2016 VA examiner noted that the Veteran's vascular disability is productive of swelling. There is no evidence that he experienced ulceration, cellulitis, enlarged heart, wide pulse pressure, tachycardia or heart failure during the appeal period. Furthermore, the Veteran's symptoms have affected his right upper extremity, and there is no evidence of symptoms affecting the left upper extremity or lower extremities. Thus, the Board finds that a rating of no more than 20 percent is warranted under DC 7113. The Board further finds that a rating of no more than 10 percent is warranted under DC 5201 for the Veteran's right thoracic outlet syndrome. The Veteran's right thoracic outlet syndrome is rated under DC 5201 relating to limitation of motion of the arm. When applied to a service-connected disability of the major or minor arm, DC 5201 provides for a minimum 20 percent rating for limitation of motion that is at shoulder level. 38 C.F.R. § 4.71a, DC 5201. Higher ratings are warranted for limitation of motion below shoulder level. For VA purposes, normal forward flexion of the shoulder is from zero to 180 degrees and abduction is zero to 180 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to "shoulder level." In this case, the Veteran has demonstrated full range of motion of his right arm during the appeal period. See April 2007 and July 2016 VA Examination Reports. Thus, a compensable rating is not warranted under DC 5201. Nevertheless, the Board finds that Veteran is entitled to a minimum compensable rating of 10 percent for painful motion, numbness, weakness and fatigue of his right arm after repeated use over time. "It is the intention to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. Thus, when the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a claimant may still be entitled to at least the minimum compensable rating for the joint involved if the evidence shows that the disability is productive of pain, instability or malalignment. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Mitchell v. Shinseki, 25 Vet. App. 32, 39 (2011). This section applies whether or not the claimant has been diagnosed with arthritis. The Board notes that a 10 percent rating is applicable for the shoulder joint under DC 5203 relating to dislocation of the clavicle or scapula, and thus the minimum compensable rating for application is 10 percent. Here, the Veteran reported experiencing right upper extremity numbness, weakness, fatigue and cramping throughout the appeal period. See April 2007 and July 2016 VA Examination Reports. The July 2016 VA examiner noted that after repeated use over time the Veteran has additional functional loss caused by weakness that results in pain, and that the additional factors contributing to disability are weakened movement and swelling. Consequently, a minimum compensable rating of 10 percent rating is warranted for his right thoracic outlet syndrome disability for the entire appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that there is no evidence that the Veteran suffers ankylosis of the right shoulder or loss of head, nonunion, malunion, fibrous union or dislocation of the right humerus. As such, DC 5200 (ankylosis) and DC 5202 (other impairment of the humerus) are not for application in this case. Additionally, the Veteran is not entitled to a separate or higher rating under DC 5203 for dislocation of his right clavicle because there is no evidence that the Veteran suffered nonunion or malunion of the clavicle or scapula at any point during the appeal period. Finally, the Board finds that entitlement to a TDIU is not warranted. When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). In May 2013, the Board remanded the issue of entitlement to a TDIU for notice and further development. In a July 2015 letter, the Veteran was asked to provide information necessary to adjudicate a claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940 Application for Increased Compensation Based on Unemployability and a VA Form 21-4192. More than a year has lapsed, and the Veteran has not submitted the requested evidence and information. The Veteran has not provided the information or VA forms necessary to adjudicate a claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, there is insufficient information necessary to adjudicate a claim for a TDIU rating during the relevant appeal period. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of he did not provide the requested information, the Veteran has abandoned his claim. As such, the Board finds that the appeal concerning entitlement to a TDIU must be denied. ORDER A rating of 20 percent for residuals of thrombosis of the right subclavian vein is granted, subject to the law and regulations governing the payment of VA monetary benefits. A rating of 10 percent for right thoracic outlet syndrome is granted, subject to the law and regulations governing the payment of VA monetary benefits. Entitlement to a TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs