Citation Nr: 1806437 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-03 648 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to a higher (compensable) initial disability rating for deep vein thrombosis (DVT) in the upper right thigh. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served in the United States Army National Guard and had various periods of active duty for training (ACDUTRA) service, including from May 2000 to August 2000, and from April 2003 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the RO in Indianapolis, Indiana, which granted service connection for DVT in the upper right thigh and assigned an initial noncompensable (0 percent) disability rating from March 29, 2011. In October 2017, the Veteran testified at a Travel Board hearing in Indianapolis, Indiana, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic file. The Board has reviewed the electronic file on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDING OF FACT For the entire initial rating period on appeal from March 29, 2011, the Veteran's service-connected DVT in the upper right thigh has been manifested by intermittent edema of the lower right extremity with aching and fatigue in the right leg after prolonged standing or walking, with symptoms relieved by elevation and compression hosiery. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a higher initial disability rating of 10 percent, and no higher, for the service-connected DVT in the upper right thigh have been met for the entire initial rating period from March 29, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7121 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the Agency of Original Jurisdiction's (AOJ) initial unfavorable decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran is challenging the initial disability rating assigned following the award of service connection for DVT in the upper right thigh. Because this issue arises from the Veteran's disagreement with the initial disability rating assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Veterans Appeals (Court) have similarly held that regarding the downstream elements of initial rating and effective dates that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of Notice of Disagreement). Further, the Board is granting a 10 percent initial disability rating for the DVT in the upper right thigh, which, as discussed in detail below, constitutes a full grant of the benefits sought on appeal. As such, no further discussion of VA's duties to notify and assist is necessary. 38 U.S.C. § 7104 (2012). In light of the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. Initial Rating for DVT in the Upper Right Thigh Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In this case, the Board will evaluate the issue of a higher rating following the original award of service connection. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating (effective date of service connection) to the present time. The Board has considered whether a staged rating is warranted with respect to the issue of entitlement to a higher initial rating for DVT in the upper right thigh, and, as explained below, finds that the severity of the DVT in the upper right thigh has not changed during the course of the appeal so as to warrant a staged rating. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2017). For the entire initial rating period on appeal from March 29, 2011, the service-connected DVT in the upper right thigh has been assigned a noncompensable (0 percent) disability rating under 38 C.F.R. § 4.104, Diagnostic Code 7199-7115. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. A designation of a diagnostic code that ends in "99" reflects that the disability is a condition not specifically listed in the Rating Schedule. The Veteran contends that a higher initial 10 percent rating for the DVT is warranted. See October 2017 Board hearing transcript. Under Diagnostic Code 7115, a 20 percent rating will be assigned when there is claudication on walking more than 100 yards, and diminished peripheral pulses or ankle/brachial index of 0.9 or less. A 40 percent rating will be assigned where there is 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. 38 C.F.R. § 4.104. In this case, the Board is changing the use of Diagnostic Code to 7121 because that code is more appropriate and more favorable to the Veteran in this case. The change in Diagnostic Code to 7121 is more appropriate because it recognizes the nature of the artery and vein disease (anatomical location and functional impairment), rates on the symptoms the Veteran has (pain, swelling, fatigue, and use of compression hosiery), and is both potentially and actually more favorable to the Veteran in this case. 38 C.F.R. § 4.20. Under Diagnostic Code 7121, a 10 percent rating is warranted for intermittent edema or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity of compression hosiery. A 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A maximum 100 percent rating is warranted under Diagnostic Code 7121 for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. As noted above, the initial rating was assigned under Diagnostic Code 7115, and the Board is changing the Diagnostic Code to 7121. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. 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, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Because the Board is changing the use of Diagnostic Code and granting a 10 percent rating under Diagnostic Code 7121, the initial noncompensable rating under Diagnostic Code 7115 will be superceded by the 10 percent rating under Diagnostic Code 7121. This change in Diagnostic Code does not amount to a reduction, as the initial rating of the Veteran's DVT in the upper right thigh changes from 0 percent to 10 percent as a result of this decision to rate the Veteran's disability under Diagnostic Code 7121 instead of under Diagnostic Code 7115. 38 C.F.R. §§ 4.20, 4.21, 4.27. After a review of all the evidence of record, the Board finds that, for the entire initial rating period on appeal from March 29, 2011, the service-connected DVT in the upper right thigh has been manifested by intermittent edema of the lower right extremity with aching and fatigue in the right leg after prolonged standing or walking, with symptoms relieved by elevation and compression hosiery to warrant a 10 percent rating under Diagnostic Code 7121 (for post-phlebitic syndrome of any etiology). The evidence includes a July 2011 VA examination report that shows the Veteran conveyed having pain in the right upper thigh and calf since developing DVT. The Veteran endorsed pain and swelling of the right leg when running or following prolonged standing. A February 2014 private treatment record reflects a lower extremity venous imaging examination was done due to the Veteran's complaints of pain, swelling, and varicose veins and DVT in the right leg. The Veteran underwent additional VA examinations in April 2017 and August 2017. The April 2017 VA examination report shows the Veteran reported swelling in the right lower calf and aching in the right upper calf following prolonged standing, which is relieved by sitting and elevating the right leg. The August 2017 VA examination report reflects a positive finding of post-phlebitic syndrome in the right lower extremity with aching in the leg after prolonged standing and with symptoms relieved by elevation of the right lower extremity. During the October 2017 Board hearing, the Veteran testified to having pain and swelling in the right leg, and that he constantly wears a support hose except when sleeping. The Veteran also testified to symptoms of fatigue in the right leg due to painful varicose veins. Based on the foregoing evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that a higher initial disability rating of 10 percent under Diagnostic Code 7121 for the service-connected DVT in the upper right thigh is warranted for the entire initial rating period from March 29, 2011. 38 C.F.R. §§ 4.3, 4.7, 4.104. As such, the appeal for a higher initial rating for DVT in the upper right thigh is fully granted in the Board's instant decision. During the October 2017 Board hearing, the Veteran's representative conveyed that a 10 percent disability rating would satisfy the appeal as to this issue. See October 2017 Board hearing transcript, pg. 10. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the Veteran's waiver of the remaining aspects of the appeal for a higher initial rating for DVT in the upper right thigh in excess of the 10 percent granted was knowing and intelligent, was made with representation and in the presence of the representative, and was supported by the Veteran's testimony and other evidence of record. Because a higher 10 percent initial rating for DVT in the upper right thigh is granted for the entire initial rating period on appeal from March 29, 2011, which the Veteran represented would fully satisfy the initial rating issue on appeal, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating than 10 percent for the entire initial rating period and any questions of extraschedular referral or rating. See 38 C.F.R. § 20.204 (2017) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of higher disability rating for DVT in the right upper thigh is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service-connected DVT in the upper right thigh more closely approximates the criteria for a 10 percent rating under Diagnostic Code 7121 for the entire initial rating period on appeal from March 29, 2011; therefore, the appeal is fully granted, leaving no remaining rating questions, including questions of referral for extraschedular rating under 38 C.F.R. § 3.321(b) (2017). 38 C.F.R. §§ 4.3, 4.7. Finally, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, as distinguished from the facts in Rice, the evidence of record does not indicate that the Veteran is unemployable due to the service-connected DVT in the upper right thigh. A July 2017 VA treatment record reflects the Veteran is gainfully employed as a police officer, and the Veteran testified during the October 2017 Board hearing to being employed. Further, in an August 2017 correspondence, the Veteran states that he is not seeking a TDIU. As such, the Board finds that the issue of entitlement to a TDIU has not been raised and, therefore, the issue of TDIU is not before the Board on appeal. ORDER For the entire initial rating period on appeal from March 29, 2011, a higher initial rating of 10 percent, but no higher, for DVT in the upper right thigh is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs