Citation Nr: 18140468 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-08 878A DATE: October 4, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for emboli to both lungs, and the request to reopen is granted. Entitlement to service connection for major depressive disorder with anxiety and panic attacks, as secondary to service-connected peripheral vascular disease of the lower extremities, is granted. Entitlement to service connection for a back disability is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to service connection for a heart condition that was formerly diagnosed as cardiomegaly is denied. Entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to service connection for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is denied. Entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to a 20 percent rating for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is denied. Entitlement to an increased rating for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity, rated as 20 percent disabling prior to October 31, 2016, is denied. Entitlement to an increased rating for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity, rated as 20 percent disabling prior to October 31, 2016, is denied. From October 31, 2016, through April 2, 2017, entitlement to an increased rating from 20 percent to 40 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is granted. From October 31, 2016, through April 2, 2017, entitlement to an increased rating from 20 percent to 40 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is granted. From April 3, 2017, through May 8, 2018, entitlement to a rating in excess of 40 percent for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is denied. From April 3, 2017, through May 8, 2018, entitlement to a rating in excess of 40 percent for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is denied. Effective May 9, 2018, entitlement to a rating of 60 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is granted. Effective May 9, 2018, entitlement to a rating of 60 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is granted. Entitlement to an initial rating of 10 percent, but no higher, for a heart condition that was formerly diagnosed as cardiomegaly is granted. REMANDED Entitlement to service connection for emboli to both lungs is remanded. Entitlement to service connection for a skin and scar disease is remanded. Entitlement to service connection for scars on the bilateral lower extremities, to include as secondary to service-connected post-phlebitic syndrome with peripheral vascular disease of the left and right lower extremities, is remanded. Entitlement to service connection for contact dermatitis with right leg scarring is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for emboli to both lungs. 2. The Veteran’s major depressive disorder with anxiety and panic attacks is proximately due to his service-connected peripheral vascular disease of the lower extremities. 3. The preponderance of the evidence is against finding that the Veteran has a current back disability that began during active service or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that the Veteran has a current sleep apnea that began during active service or is otherwise related to an in-service injury, event, or disease. 5. The RO received the Veteran’s claim of entitlement to service connection for cardiomegaly on February 28, 2013, and no other earlier claim is either alleged or demonstrated by the record. 6. The RO received the Veteran’s claim of entitlement to service connection for deep venous thrombosis of the right lower extremity on February 28, 2013, and no other earlier claim is either alleged or demonstrated by the record. 7. The RO received the Veteran’s claim of entitlement to a rating in excess of 20 percent for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity on February 28, 2013, no other earlier claim is either alleged or demonstrated by the record, and it is not factually ascertainable that an increase in this disability occurred within the one-year period preceding the date of receipt of the claim. 8. From February 28, 2013, through October 30, 2016, the Veteran’s post-phlebitic syndrome with peripheral vascular disease of the left lower extremity was manifested by persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. 9. From February 28, 2013, through October 30, 2016, the Veteran’s post-phlebitic syndrome with peripheral vascular disease of the right lower extremity was manifested by persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. 10. From October 31, 2016, through May 8, 2018, the Veteran’s post-phlebitic syndrome with peripheral vascular disease of the left lower extremity was manifested by persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. 11. From October 31, 2016, through May 8, 2018, the Veteran’s post-phlebitic syndrome with peripheral vascular disease of the right lower extremity was manifested by persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. 12. From May 9, 2018, the Veteran’s post-phlebitic syndrome with peripheral vascular disease of the left lower extremity was manifested by persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. 13. From May 9, 2018, the Veteran’s post-phlebitic syndrome with peripheral vascular disease of the right lower extremity was manifested by persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. 14. Throughout the appeals period, the Veteran’s heart condition, which was formerly diagnosed as cardiomegaly, has manifested in a workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for emboli to both lungs. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to secondary service connection for major depressive disorder with anxiety and panic attacks are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to service connection for a heart condition that was formerly diagnosed as cardiomegaly are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to service connection for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to a 20 percent rating for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 8. From February 28, 2013, through October 30, 2016, the criteria for entitlement to a rating in excess of 20 percent for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 9. From February 28, 2013, through October 30, 2016, the criteria for entitlement to a rating in excess of 20 percent for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 10. From October 31, 2016, through April 2, 2017, the criteria for entitlement to a rating of 40 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 11. From October 31, 2016, through April 2, 2017, the criteria for entitlement to a rating of 40 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 12. From April 3, 2017, through May 8, 2018, the criteria for entitlement to a rating in excess of 40 percent for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 13. From April 3, 2017, through May 8, 2018, the criteria for entitlement to a rating in excess of 40 percent for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 14. From May 9, 2018, the criteria for entitlement to a rating of 60 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 15. From May 9, 2018, the criteria for entitlement to a rating of 60 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7121. 16. Throughout the appeals period, the criteria for entitlement to a rating of 10 percent, but no higher, for a heart condition that was formerly diagnosed as cardiomegaly have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7020. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to May 2009. This matter comes before the Board on appeal from March 2014 and September 2014 Regional Office (RO) rating decisions. Service Connection Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). New and material evidence has been received to reopen the claim of entitlement to service connection for emboli to both lungs. The Veteran’s claim of entitlement to service connection for emboli to both lungs was originally denied in a November 2009 rating decision. The rating decision noted that medical records from Cypress Fairbanks Medical Center showed the Veteran was seen on June 8, 2009, because he had been having shortness of breath on exertion for two weeks. CT chest findings revealed acute bilateral pulmonary arterial emboli. Service treatment records showed no evidence that the Veteran had a respiratory condition or an emboli to the lungs in service. The Veteran was notified of this decision later that month, but he did not appeal. Therefore, this decision became final, and new and material evidence is required in order to reopen it. At the time of the November 2009 rating decision, the Veteran’s service treatment records had been associated with the claims file, as had post-service medical evidence reflecting that the Veteran had sought treatment for acute bilateral pulmonary arterial emboli. A June 2009 VA medical record notes that the physician was unsure of the cause of his deep venous thrombosis/pulmonary embolism, but noted that the Veteran had a history of recent travel. (The Veteran had recently made a 24-hour car drive while in service.) A September 2009 VA examination report diagnosed emboli to the bilateral lungs based on the subjective factor of history of pulmonary emboli and the objective factor that the Veteran was currently on Coumadin. It notes that the Veteran reported that emboli to the bilateral lungs had existed for five months. Since the November 2009 rating decision, VA and private treatment records have been added to the claims file. These records show that the Veteran’s pulmonary emboli had resolved as of the time of a December 2009 radiology report, and a December 2013 CT scan of the chest with contrast expressly showed no evidence of pulmonary embolism. However, an October 2016 private medical opinion notes that the Veteran “had blood clots in his lung and legs in the past. He still has partial clots which will not completely go away now which will require life-long blood thinner.” The Board finds that the October 2016 letter is new and material evidence, as it was not of record at the time of the November 2009 denial and it pertains to establishing the existence of a current chronic disability. Therefore, new and material evidence having been received, the claim of entitlement to service connection for emboli to both lungs is reopened. Entitlement to service connection for major depressive disorder with anxiety and panic attacks, to include as secondary to service-connected peripheral vascular disease of the lower extremities, is granted. The claims file contains an examination report from a psychiatrist that diagnoses major depressive disorder, recurrent episode, moderate with anxious distress, and panic attacks. (See May 2018 Mental Disorders Disability Benefits Questionnaire (DBQ).) The psychiatrist expressly links these diagnoses to his service-connected peripheral vascular disease, noting that the Veteran’s medical condition is one of the prominent factors perpetuating depressed mood and panic attacks. (See May 2018 nexus statement.) She also noted that the Veteran continues to have difficulty coping with and adjusting to his limitations. The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It indicates interview and examination of the Veteran and contains an etiology opinion that includes citation to the facts of the Veteran’s case. Based on the above, the Board finds that entitlement to service connection for major depressive disorder with anxiety and panic attacks as secondary to his service-connected peripheral vascular disease is warranted. Entitlement to service connection for a back disability is denied. The Veteran has claimed entitlement to service connection for a back disability. He essentially contends that he “threw my back out while in the navy as well and it still hurts me and prevents me from [performing] certain task[s]. This is in my navy military record as well.” (See July 2013 personal statement.) The Board has reviewed the Veteran’s service treatment records, but it can find no evidence of the Veteran having reported or sought treatment for a back injury in service. The Veteran denied a history of, or current, recurrent back pain or any back problems in his February 2009 separation medical history report. Nor do the Veteran’s current medical records reflect that he has complained of, or been treated for, symptoms associated with his back following his separation from service. The Board notes that the Veteran, as a layperson, is competent to report having injured his back in service and having current back symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995). The Board further notes, however, that the Veteran’s report of having sought treatment for a back injury during service is contradicted by his express denial of having recurrent back pain or any back problems in his February 2009 separation medical history report. Therefore, the preponderance of the evidence of record weighs against finding that the Veteran has a current back disability that began during or is otherwise related to his military service. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. Entitlement to service connection for sleep apnea is denied. The Veteran has also claimed entitlement to service connection for sleep apnea. The Veteran has not made any specific contentions regarding his sleep apnea, however, and he has not presented medical records reflecting that he complained of, was diagnosed with, or sought treatment for symptoms associated with sleep apnea during service. Nor do current medical records reflect a sleep apnea suspicion or diagnosis. Therefore, entitlement to service connection for sleep apnea is not warranted. Earlier Effective Date for the Grant of Service Connection Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b). There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability, and the mere presence of medical evidence of a condition does not establish intent on the part of the Veteran to seek service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998). Entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to service connection for a heart condition formerly diagnosed as cardiomegaly is denied. In the March 2014 rating decision, the RO granted entitlement to service connection for cardiomegaly and assigned a 0 percent rating effective February 28, 2013. The Veteran disagreed with the assigned effective date in his October 2014 notice of disagreement. However, he has not provided a basis for requesting an earlier effective date. The current effective date corresponds to the date of receipt of the Veteran’s service connection claim. The record does not contain an earlier claim of entitlement to service connection for a heart condition, and the Veteran does not allege the existence of any such claim. Therefore, the Board finds that entitlement to an earlier effective date for the grant of entitlement to service connection for a heart condition formerly diagnosed as cardiomegaly is not warranted. Entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to service connection for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is denied. In the March 2014 rating decision, the RO also granted entitlement to service connection for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity and assigned a 20 percent rating effective February 28, 2013. Again, the Veteran disagreed with the assigned effective date in his October 2014 notice of disagreement. However, he has not provided a basis for requesting an earlier effective date. The Board’s review of the record reveals that the Veteran talked to a VA employee on the phone in June 2009 “and stated he would like to file a claim for … numbness and swelling of left and right legs.” He requested that this phone call be accepted as an informal claim for benefits. Later that month, the Veteran was sent a letter with a VA Form 21-526. He was notified that he must complete this form and return it within one year of the date of his informal claim in order to preserve the date of the informal claim for effective date purposes. The Veteran completed and returned this form later that month, and he did not state that he was claiming a disability of the right lower extremity. The informal claim was not sufficient to initiate a claim for benefits for the numbness and swelling of the right lower extremity, and the Veteran was subsequently notified of how to file a formal claim. He did not file a formal claim with respect to the issue of entitlement to service connection for a disability of the right lower extremity. There is no other communication from the Veteran that may be interpreted as a claim for entitlement to service connection for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity. Therefore, the Board finds that entitlement to an effective date prior to February 28, 2013, must be denied. Increased Rating and Earlier Effective Date for the Grant of Increased Rating Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran in this case has been service connected for post-phlebitic syndrome with peripheral vascular disease of the left and right lower extremities. This disability is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7121. Under Diagnostic Code 7121, a 10 percent rating is warranted where 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 where 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 where there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted where there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is warranted where there is massive board-like edema with constant pain at rest that is attributed to the effects of varicose veins. A note added to this Diagnostic Code directs that these evaluations are for involvement of a single extremity; if more than one extremity is involved, evaluate each extremity separately and combine (under § 4.25), using the bilateral factor (§ 4.26), if applicable. 38 C.F.R. § 4.104. Entitlement to an effective date prior to February 28, 2013, for the grant of entitlement to a 20 percent rating for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is denied. In general, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); see also 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). In a November 2009 rating decision, the Veteran was granted entitlement to service connection for deep venous thrombosis of the left lower extremity and was assigned a 10 percent rating effective May 9, 2009. The Veteran was notified of this decision in a November 2009 letter, but he did not appeal the assigned effective date and did not submit new and material evidence within one year of the notification letter to prevent the appeal from becoming final. The Veteran next claimed entitlement to an increased rating on February 28, 2013. In the March 2014 rating decision, the RO increased the disability rating of what had been recharacterized as post-phlebitic syndrome with peripheral vascular disease of the left lower extremity from 10 percent to 20 percent, effective February 28, 2013. Again, the Veteran disagreed with the assigned effective date in his October 2014 notice of disagreement. Again, however, he has not provided a basis for requesting an earlier effective date. The Veteran does not contend that he submitted an earlier communication to serve as a formal or informal claim, and the Board can find no such document of record. The Board therefore concludes that the date of claim in this case is February 28, 2013. The Board will next evaluate whether it is factually ascertainable that the Veteran’s disability underwent an increase during the one-year period prior to the date of claim. Review of the evidence of record reveals that there are no medical records from the one-year period ranging from February 28, 2012, through February 27, 2013, and there are no lay statements from the Veteran concerning his left lower extremity that are dated within that range. Therefore, entitlement to an effective date prior to February 28, 2013, for an increased rating for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is not warranted. Entitlement to an increased rating for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity, rated as 20 percent disabling prior to October 31, 2016, is denied. Entitlement to an increased rating for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity, rated as 20 percent disabling prior to October 31, 2016, is denied. In a July 2013 statement, the Veteran reported that “there are more … brown spots and veins that pop out of my legs that are from edema caused from the [deep venous thrombosis].” The Veteran underwent a VA examination in connection with these claims on December 4, 2013. The examiner found “[a]ching and fatigue in the leg after prolonged standing or walking” for both legs. He did not find any of the other enumerated rating criteria in either lower extremity. He noted that both lower extremities had claudication on walking more than 100 yards and diminished peripheral pulses. It was noted that the Veteran does not use any assistive devices as a normal mode of locomotion. Ankle/brachial index testing was performed, with an ankle/brachial index of .92 in the right lower extremity and an ankle/brachial index of .94 in the left lower extremity. With respect to the impact of this condition on his ability to work, the examiner noted that the Veteran is not able to walk a very long distance due to poor circulation. In a December 2013 statement, the Veteran reported that he was hospitalized for the second time for his deep venous thrombosis on December 24, 2013. He reported that he now has to take Coumadin and Lovenox shots, along with going to the doctor and getting blood work done every week. He reported that “the doctor stated that this clot is a direct result from the previous clot which is a service connected disability.” The December 24, 2013, emergency room record notes that the Veteran presented to the emergency room with right calf pain. Real-time ultrasound imaging of the deep venous anatomy was performed. The impression was that deep venous thrombosis was suspected in the right lower extremity venous anatomy. The venous anatomy was not completely occluded, and it was noted that the findings may represent a chronic deep venous thrombosis. Based on the above, the Board finds that the criteria for a rating in excess of 20 percent are not met for the period from February 28, 2013, through October 30, 2016. This evidence includes no findings of persistent edema and stasis pigmentation to support the assignment of a 40 percent rating. Nor did the evidence from this period reflect a finding of the optional symptom of intermittent ulceration. From October 31, 2016, through April 2, 2017, entitlement to an increased rating from 20 percent to 40 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is granted. From October 31, 2016, through April 2, 2017, entitlement to an increased rating from 20 percent to 40 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is granted. An October 31, 2016, letter from the Veteran’s private physician notes that he had blood clots in his leg in the past and still has partial clots that will not completely go away which will require lifelong blood thinners. He developed edema and ulcers in the legs consistent with venous stasis and varicose veins from chronic deep venous thrombosis. It was noted that the Veteran has, and will continue to have, leg pain and swelling with prolonged standing more than 10 minutes. The doctor recommended lymphedema clinical referral, sequential compression device to use, and support stockings to wear daily, especially when he has to be on his feet for long durations. A December 13, 2016, private medical record notes that the Veteran has moderate lower extremity symptoms. He had stage II, 4+ pitting and non-pitting, bilateral lower extremity lymphedema. His skin was of a soft, spongy, consistency and hard with mild fibrosis with discoloration. He had mild to moderate to severe pain described as a sharp, shooting pain with intermittent dull ache and/or intermittent burning or pins and needles sensation with numbness, tingling, heaviness, and pressure. He had limited range of motion, average strength, and limited functional capacity and/or functional impairment. It was previously controlled with compression wear, elevation, and range of motion remedial exercise. It was noted that four weeks of more conservative treatment had been tried and failed, so a more comprehensive course of complex decongestive physiotherapy was needed. The Board finds that the evidence of ulceration in the October 31, 2016, private medical letter warrants an increase in the Veteran’s disability ratings for both legs from 20 percent to 40 percent, effective from that date. Given that the April 3, 2017, VA examination report notes that the ulceration is intermittent rather than persistent, the Board finds that ratings in excess of 40 percent are not warranted for this period. From April 3, 2017, through May 8, 2018, entitlement to a rating in excess of 40 percent for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is denied. From April 3, 2017, through May 8, 2018, entitlement to a rating in excess of 40 percent for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is denied. The April 3, 2017, VA examination report notes findings of aching and fatigue in the Veteran’s left and right legs after prolonged standing and prolonged walking. Persistent stasis pigmentation, intermittent ulceration, persistent edema that is incompletely relieved by elevation of the extremity, and constant pain at rest in both legs were also noted. Findings of the 60 percent criteria of persistent edema and persistent subcutaneous induration and the 100 percent criterion of massive board-like edema were not found. The Board finds that the findings of persistent edema and stasis pigmentation with intermittent ulceration satisfy the criteria for 40 percent ratings. The Board further finds that the criteria for ratings in excess of 40 percent are not met. Effective May 9, 2018, entitlement to a rating of 60 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the left lower extremity is granted. Effective May 9, 2018, entitlement to a rating of 60 percent, but no higher, for post-phlebitic syndrome with peripheral vascular disease of the right lower extremity is granted. The Veteran has submitted a disability benefits questionnaire (DBQ) dated May 9, 2018, that was completed by his treatment provider. This record notes findings of persistent edema with persistent stasis pigmentation and persistent ulceration of both lower extremities. These findings satisfy the criteria for entitlement to 60 percent ratings for the bilateral lower extremities. In the absence of a finding of the 100 percent criterion of massive board-like edema, the Board finds that ratings in excess of 60 percent are not warranted. Entitlement to an initial rating of 10 percent, but no higher, for a heart condition that was formerly diagnosed as cardiomegaly is granted. The Veteran has also claimed entitlement to an initial compensable rating for cardiomegaly. This disability is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7020. Under this diagnostic code, a 10 percent evaluation is assigned for coronary artery disease with a workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is assigned for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram (ECG or EKG), echocardiogram (echo) or X-ray. A 60 percent evaluation is assigned for more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent evaluation is assigned for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). The Board notes that the Veteran underwent a VA heart conditions examination in April 2017. The interview-based METs testing produced a workload of greater than 5 METs but not greater than 7 METs that results in angina. The examiner noted that the METs level was due solely to the heart conditions that the Veteran was claiming in the diagnosis section. However, in the diagnosis section, the examiner opined that the Veteran does not have or has never been diagnosed with a heart condition. In the remarks section, the examiner noted, in pertinent part, that “[f]or the VA established diagnosis of CARDIOMEGALY, there is a change in the diagnosis and it is a correction. The diagnosis is no heart condition diagnosis, as 2D echocardiogram dated 04.07.17 is within normal limits.” In June 2017, the RO sought a clarification of the April 2017 findings, noting that the April 2017 examiner had determined that the Veteran had a reduced METs capacity due to a heart condition, even though there was no diagnosed heart condition. The June 2017 VA examiner found that, “because the EKG, Chest x-ray, and echocardiogram were all normal and the LVEF is 60% the METs level of (>5-7 METs) is in error and should have been stated as (>7-10 METs) because all the diagnostics are normal and the Veteran does not have a diagnosis of Cardiomegaly.” Based on the above, the Board finds the estimate of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope is the more probative of the findings. This reading corresponds with a 10 percent rating. Therefore, even though the Veteran has been found not to have a cardiomegaly diagnosis, the Board will assign a rating of 10 percent based on functional impairment throughout the appeals period. See generally Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board has considered whether a rating in excess of 10 percent is warranted. The Board notes, however, that the remaining evidence from the current appeals period does not include a cardiomegaly diagnosis. Nor does it indicate that the criteria for a higher disability rating are satisfied by any such condition. Therefore, entitlement to a rating in excess of 10 percent for a heart condition that was formerly diagnosed as cardiomegaly must be denied. REASONS FOR REMAND Entitlement to service connection for emboli to both lungs is remanded. Having found that new and material evidence has been received to reopen the claim of entitlement to service connection for emboli to both lungs, the Board will remand this claim so that the Veteran may undergo an examination to determine the nature and etiology of any current pulmonary emboli. Entitlement to service connection for a skin and scar disease is remanded. Entitlement to service connection for scars on the bilateral lower extremities, to include as secondary to service-connected post-phlebitic syndrome with peripheral vascular disease of the left and right lower extremities, is remanded. Entitlement to service connection for contact dermatitis with right leg scarring is remanded. In a July 2013 statement, the Veteran reported that he has scars on his lower extremities. He reported that he has “lots of deep disfiguring scars on my legs from my ankles all the way to my knees on both legs. This is related to allergic reaction to jet fuel.” The Board notes that the Veteran’s service treatment records reflect that he was treated in service for dermatitis on multiple occasions and that he has “contact dermatitis due to oils/greases.” (See March 2007, March 2008, and November 2008 service treatment records.) The March 2008 record notes that the Veteran has had recurrent dermatitis for two years. In the March 2008 record, he was assessed as having contact dermatitis due to solvents, and it was noted that the Veteran has had “two previous episodes during extended underways with flights operations. Symptoms resolved with persistent hyperpigmentation between recurrences.” Post-service, a November 2009 VA medical record notes that the Veteran “reports contact eczema for over 4-5 yrs now chronic.” Given that there is evidence of in-service dermatitis and that the Veteran contends that he still experiences dermatitis, the Board will remand this claim so that the Veteran may undergo an examination and an etiology opinion may be obtained. With respect to the scarring, the December 2013 and April 2017 VA examination reports note that the Veteran does not have any scars related to any conditions of the lower extremities. However, the May 2018 private DBQ notes findings of painful scarring related to the service-connected conditions of the lower extremities. A remand of these issues is required in order to determine whether the Veteran has scars on his lower extremities and the nature and etiology of any scars that are found. Entitlement to a TDIU is remanded. The Veteran’s claim of entitlement to a TDIU is inextricably intertwined with the claims that are being remanded. Therefore, the Board must defer adjudication of the TDIU claim until the development of the remaining claims is completed. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained in March 2018. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current embolism of the Veteran’s lungs. The Veteran’s file should be made available for review by the examiner. The examiner should review the file and this fact should be noted in the accompanying medical report. The examiner should diagnose any current disability and must opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disability began during or is otherwise related to his military service. The Board notes that service connection is in effect for post-phlebitic syndrome with peripheral vascular disease of the left and right lower extremities, and that the Veteran’s left lower extremity disability was previously characterized as deep venous thrombosis. The deep venous thrombosis was determined to have arisen in May 2009 following the Veteran’s 24-hour drive between California and Texas prior to his separation from service. The examiner should consider the evidence from 2009 that indicates the Veteran also experienced emboli of both lungs as a result of this event. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current lower extremity scarring and dermatitis. The Veteran’s file should be made available for review by the examiner to include the May 2018 private DBQ. The examiner should review the file and this fact should be noted in the accompanying medical report. The examiner should diagnose any current disability and must opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disability began during or is otherwise related to his military service. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel