Citation Nr: 1757519	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  14-19 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an initial compensable rating for residuals of pulmonary embolism.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Roya Bahrami, Counsel


INTRODUCTION

The Veteran served on active duty from February 1992 to June 1998.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  In that decision, the RO granted service connection for pulmonary embolism and assigned an initial noncompensable rating effective February 27, 2009.  The Veteran timely appealed the initial rating assigned.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in January 2017, and a copy of the hearing transcript is of record.


FINDING OF FACT

Throughout the time period on appeal, residuals of pulmonary embolism required management with anticoagulant therapy.


CONCLUSION OF LAW

The criteria for a 60 percent disability rating for residuals of pulmonary embolisms have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6817 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the appeal given the fully favorable nature of the Board's decision.

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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.

Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board may, however, grant different levels of compensation effective from different dates based on the evidence, throughout the period since service connection was awarded. See Hart v. Mansfield, 121 Vet. App. 505 (2007).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's residuals of pulmonary embolism are rated as 0 percent disabling since February 27, 2009. It is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6817. The Veteran seeks a 60 percent rating throughout the appeal period and indicated that he would be satisfied with this rating. See Board Hearing Transcript, p. 4 ("And if you were granted 60 percent, you [would be] satisfied with that[?].  "I would be satisfied, correct").

DC 6817 is used to rate pulmonary vascular disease. A noncompensable (0 percent) rating contemplates being asymptomatic, following resolution of pulmonary thromboembolism. A 30 percent rating is assigned for being symptomatic, following resolution of acute pulmonary embolism. A 60 percent rating contemplates chronic pulmonary thromboembolism requiring anticoagulant therapy, or; following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction. A 100 percent rating contemplates primary pulmonary hypertension, or; chronic pulmonary thromboembolism with evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale, or; pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. 

In this case, the evidence of record reflects that the Veteran continuously took a prescribed anticoagulant medication, Coumadin, throughout the appeal period. However, in denying a higher rating, the RO found that the Coumadin therapy was used for the Veteran's service-connected thrombophlebitis of the bilateral lower extremities and the right upper extremity (both rated as noncompensably disabling). See, e.g., September 2010 rating decision.

To the contrary, the Veteran maintains that his residuals of pulmonary embolism require lifelong anticoagulant therapy. See, e.g., April 2009 statement.

In support of his claim, the Veteran has submitted several letters from his private treating physician, Dr. L.G. A March 2012 letter from Dr. L.G. indicates that he had treated the Veteran for the past 10 years, and that the Veteran is on lifelong anticoagulant therapy due to chronic pulmonary embolisms. A January 5, 2017 letter from Dr. L.G. indicates that the Veteran has been taking Coumadin the entire time that he has been under Dr. L.G.'s care. Finally, a January 10, 2017 letter from Dr. L.G. indicates that removing the Veteran from lifelong anticoagulation therapy will more likely than not cause him to suffer from pulmonary embolisms as he did prior to therapy.

The dispositive issue in this case is therefore whether the Veteran's anticoagulant therapy is for his pulmonary embolism residuals or for his other service connected disabilities.  The above evidence reflects that the evidence is at least evenly balanced as to whether the anticoagulant therapy is required for the pulmonary embolism.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 60 percent rating is warranted throughout the appeal period.  38 U.S.C. § 5107; 38 C.F.R. § 4.3.  Cf. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability).

Because the benefit sought is being granted in full, no additional discussion of entitlement to a rating higher than 60 percent on a schedular or extraschedular basis is necessary.


ORDER

Entitlement to an initial 60 percent rating for residuals of pulmonary embolism is granted from February 27, 2009, subject to the rules and regulations governing payment of monetary benefits.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs