Citation Nr: 1800116 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-19 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an evaluation in excess of 20 percent for deep vein thrombosis (DVT), recurrent, right lower extremity, associated with Protein-S functional deficiency. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and her son ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1993 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A notice of disagreement (NOD) was received in February 2014, a statement of the case (SOC) was issued in April 2014, and a substantive appeal was timely received in May 2014. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing has been associated with the Veteran's electronic claims file. During her hearing, the Veteran testified that her DVT of the right lower extremity has psychologically impacted her. To the extent that she is claiming secondary service connection for an acquired psychiatric disorder secondary to DVT, the Board does not have jurisdiction over it. The matter is referred to the AOJ for any appropriate action, to include informing the Veteran and her representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (2017) (providing for furnishing of appropriate application form upon request for VA benefits). FINDING OF FACT Throughout the appeal period, the Veteran's DVT of the right lower extremity has been manifested by symptoms consistent with persistent edema and stasis pigmentation, without intermittent ulceration. CONCLUSION OF LAW The criteria for a 40 percent rating, but no higher, for DVT of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7121 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Rules and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. §1155; 38 C.F.R. §4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire appeal period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In addition, the U.S. Court of Appeals for Veterans Claims (Court) has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Veteran's DVT of the right lower extremity has been assigned a 20 percent rating under 38 C.F.R. § 4.104, DCs 7199-7121. The hyphenated codes are intended to show that the Veteran's service-connected disability is rated by analogy as a post-phlebetic syndrome of any etiology under DC 7121. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). Under Diagnostic Code 7121, a 10 percent rating is warranted when there is intermittent edema of the extremity or aching and fatigue in the legs after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is warranted when there is persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted when there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted when there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is warranted when there is massive board-like edema with constant pain at rest that is attributed to the effects of varicose veins. Factual Background The Veteran contends that her DVT of the right lower extremity is more severe than what is represented by a 20 percent rating. Specifically, the Veteran claims that she has aching in her right leg after prolonged standing and walking, and that she has been impacted emotionally by her condition due the chronic pain over the years. For the reasons discussed below, the Board finds that the Veteran symptoms most nearly approximate those associated with a 40 percent rating, but no higher, for her right leg DVT. The Veteran was provided with an Artery and Vein Conditions examination through the VA in December 2012. At the examination, the Veteran reported that the date of onset of symptoms was in 1997. She reported taking pain medications to control the pain and having to elevate her legs at work as much as possible. She stated that she wears compression stockings and cannot walk or stand for too long. The examiner provided a diagnosis of chronic DVT secondary to Protein-S deficiency, coagulopathy secondary to Protein-S deficiency, and superficial thrombophlebitis of the lower extremities. The examiner noted varicose veins or post-phlebitic syndrome of any etiology, with symptoms of aching and fatigue in leg after prolonged standing or walking, intermittent edema of extremity, persistent edema that is incompletely relieved by elevation of extremity, and constant pain at rest. No persistent stasis pigmentation, eczema, or intermittent ulceration was found. The Veteran was not diagnosed with an aortic aneurysm, an aneurysm of a small artery, Raynaud's Syndrome, AV fistula, angioneurotic edema, or erythromelalgia. The functional impact noted by the examiner was partial impairment with prolonged periods of sedentary employment, physical activities such as running, walking long distances, prolonged standing due to chronic DVT, and superficial thrombophlebitis. The Veteran's private treatment records show treatment for her DVT of the right lower extremity. In March 2012, the Veteran reported feeling cold when others in the same environment are comfortable. In October 2012, the Veteran denied any lower extremity swelling. The Veteran was most recently provided with a VA Artery and Vein Conditions examination in January 2017. The Veteran reported a progressive increase in right lower extremity pain and swelling as the day goes on. She reported trying to be as active as possible to promote venous return from the right lower extremity, and stated she avoids prolonged sitting and standing. The VA examiner provided a diagnosis of post-thrombotic syndrome of the right lower extremity due to recurrent deep vein thrombosis associated with Protein-S deficiency. The examiner noted post-phlebetic syndrome of any etiology with symptoms of aching in leg after prolonged standing and walking, fatigue in leg after prolonged standing and walking, symptoms relieved by elevation of extremity and compression hosiery, and intermittent edema of the right lower extremity. The Veteran was noted to use a cane on an occasional basis. The functional impact noted by the examiner was that the Veteran has to take a break every hour to stand and walk at her job in order to avoid worsening pain and swelling in her right lower extremity. At the July 2017 Board hearing, the Veteran testified that she experiences swelling in her right leg every day, with no change in coloring and no extra dryness. She stated that she has knots that come up under her skin and she usually wears compression hosiery. The Veteran reported that she is on anticoagulants for the rest of her life, and has to take blood thinners every night. The Veteran's son testified at the Board hearing that the Veteran's leg turns black and blue, and she gets irritable when in pain. Analysis Based on the VA examinations mentioned above that found symptoms of persistent edema, and the Veteran's son's testimony at the Board hearing that the Veteran's leg turns black and blue, the Board finds that the Veteran is entitled to a 40 percent disability rating, but no higher, for her DVT of the right lower extremity. In forming this decision, the Board has considered the Veteran's complaints that the swelling and pain in her right lower extremity is constant and causes her emotional distress. In other words, the Board finds all reasonable doubt in the Veteran's favor and assigns her a 40 percent rating for her service-connected right lower extremity DVT. The most probative evidence (the VA examination reports) does not show that any point during the appeal period, the Veteran's symptoms resulted in additional functional limitation to the extent that her disability warrants a higher disability rating under Diagnostic Code 7121. Specifically, the Veteran's medical record and lay testimony do not contain any reports of intermittent ulceration in order to warrant a higher disability rating of 60 percent. The Board notes that there are instances during the appeal period where the Veteran's DVT of the right lower extremity appear to be less severe than currently noted. The Board notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). The Board is persuaded that the symptoms displayed by the Veteran establish that since her claim for an increased rating for her DVT of the right lower extremity in March 2012, her symptoms more nearly approximated persistent edema and stasis pigmentation without intermittent ulceration and, as such, warrants a 40 percent disability rating. The Board finds that the service-connected DVT of the right lower extremity did not show persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Accordingly, the Board finds that a schedular rating of 40 percent, but no higher, is warranted for the Veteran's service connected DVT of the right lower extremity. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation of 40 percent for DVT, recurrent, right lower extremity, associated with Protein-S functional deficiency is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs