Citation Nr: 20021703 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-29 868 DATE: March 26, 2020 ORDER Entitlement to an initial 20 percent disability evaluation for right leg deep vein thrombosis, for the rating period prior to May 16, 2014, is granted. Entitlement to an increased, 40 percent disability evaluation for right leg deep vein thrombosis, for the rating period since May 16, 2014, is granted. REMANDED Entitlement to an increased disability evaluation for lumbar spine degenerative joint and disc disease, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability evaluation for bronchitis with pulmonary vascular disease, currently rated as noncompensable, is remanded. Entitlement to an initial disability evaluation in excess of 20 percent for right leg deep vein thrombosis. Entitlement to an increased disability evaluation for right leg deep vein thrombosis, rated as 40 percent disabling since May 16, 2014, is remanded FINDINGS OF FACT 1. For the rating period prior to May 16, 2014, the Veteran’s right leg deep vein thrombosis was productive of persistent edema, incompletely resolved by elevation of the right lower extremity, without stasis pigmentation or eczema. 2. For the rating period since May 16, 2014, the Veteran’s right leg deep vein thrombosis was productive of right ankle brachial index of .66. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 20 percent disability rating, but no higher, for right leg deep vein thrombosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7121 (2019). 2. The criteria for entitlement to a 40 percent disability rating for right leg deep vein thrombosis, but no higher, for the rating period since May 16, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7114 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1983 to September 1993, April 1991 to July 1991, November 2001 to November 2003, October 2004 to September 2007, and October 2009 to August 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal of April 2012 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The April 2012 rating decision granted the Veteran’s claims of entitlement to service connection for her right leg deep vein thrombosis and lumbar spine degenerative joint and disc disease, and assigned noncompensable disability evaluations for each, effective September 1, 2011. The January 2013 rating decision granted the Veteran’s claim of entitlement to service connection for bronchitis with pulmonary vascular disease; a noncompensable disability evaluation was assigned, effective September 1, 2011. A September 2013 rating decision granted the Veteran an increased, 10 percent disability evaluation for her lumbar spine degenerative joint and disc disease, effective September 1, 2011. An April 2015 rating decision granted the Veteran an increased disability evaluation for her right leg deep vein thrombosis, effective May 16, 2014. Nonetheless, as the Veteran has not been granted the maximum benefits allowed, the claims for increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). These matters were remanded in June 2016 for additional development and due process considerations. A supplemental statement of the case was most recently issued in October 2019. The case was returned to the Board for appellate consideration. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor her representative has 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). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Initially, the Board notes that this portion of the decision only addresses whether the Veteran’s right leg deep vein thrombosis is entitled to an initial compensable disability rating for the rating period prior to May 16, 2014 and a disability rating in excess of 20 percent for the rating period since May 16, 2014. Entitlement to a higher rating for the overall appeal period is addressed in the remand portion of the decision. As will be discussed, the Board notes, that, based on the current evidence of record, it is not clear whether a higher rating is warranted for any part of the appeal period; the failure of the RO to comply with the Board’s directives in the prior, June 2016 remand, prevents the Board from making such a determination. The Board bifurcated the decision this way so that the Veteran does not have to wait for the award of the higher disability ratings while the remand for higher disability evaluations is adjudicated. 1. Entitlement to an initial compensable disability evaluation for right leg deep vein thrombosis. For the period prior to May 16, 2014, the Veteran's right leg deep vein thrombosis has been evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7121. See 38 C.F.R. § 4.20. Under Diagnostic Code 7121, a noncompensable, 0 percent disability rating is warranted for asymptomatic palpable or visible varicose veins. A 10 percent disability rating is warranted for intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent disability rating is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent disability rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent disability rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. After a review of all the available evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that a 20 percent disability evaluation, but no higher, is warranted for the Veteran’s right leg deep vein thrombosis for the initial rating period prior to May 16, 2014. The Veteran’s right leg deep vein thrombosis has been described as at least intermittent since her separating from service. The Board notes that a June 2011 VA general medical examination reflects that the Veteran reported that the Veteran reported intermittent pain and swelling, occurring at least every 2 – 3 weeks. A May 2012 VA respiratory examination report indicates that the Veteran experienced intermittent swelling, resolved after 2- 4 days of elevation of her right leg; she had decreased pedal pulses upon evaluation. In addition, the May 2014 VA examination report indicates that the Veteran reported a history of persistent edema, incompletely alleviated with elevation of her right leg; there was no evidence of stasis pigmentation or eczema. The Board acknowledges that the Veteran’s right leg edema was described as intermittent prior to May 2014; however, given the frequency and duration of the Veteran’s right leg edema, the Board finds that the Veteran’s symptomatology most closely approximates the criteria for a 20 percent disability evaluation. A higher rating is not warranted as there is no evidence during this period of stasis pigmentation or eczema, as required for a higher rating. 2. Entitlement to a disability evaluation in excess of 40 percent for right leg deep vein thrombosis. The Board observes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See 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 diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Following the May 2014 VA examination, the RO amended the Diagnostic Code assigned for the Veteran’s right leg deep vein thrombosis to reflect that the Veteran has an ankle/brachial index of .66 upon resting doppler arterial flow testing, and is more accurately evaluated under the Diagnostic Criteria for arteriosclerosis obliterans (Diagnostic Code 7114), versus the Diagnostic Criteria for post-phlebotic syndrome (Diagnostic Code 7121). See 38 C.F.R. § 4.20. Under Diagnostic Code 7114, a 20 percent rating is warranted for each extremity where there is claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index (ABI) of 0.9 or less. A 40 percent rating is warranted 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 an ABI of 0.7 or less. A 60 percent rating is warranted where there is claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or an ABI of 0.5 or less. A 100 percent rating is warranted where there is ischemic limb pain at rest, and either deep ischemic ulcers or an ABI of 0.4 or less. See 38 C.F.R. § 4.104, DC 7114 (2019). Note (1) states the ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Note (2) states that residuals of aortic and large arterial bypass surgery are evaluated as arteriosclerosis obliterans. Note (3) to DC 7114 states that these ratings are for involvement of a single extremity. If more than one extremity is affected, each extremity is evaluated separately and combined under § 4.25, using the bilateral factor (§ 4.26) if applicable. After a review of all the evidence, the Board finds that the Veteran’s disability picture for the period beginning on May 16, 2014 at least approximates the criteria for a 40 percent disability rating for her service-connected right leg deep vein thrombosis. In this regard, the Board observes that the May 2014 VA examination report indicates that the Veteran has an ankle/brachial index of .66 upon resting doppler arterial flow testing due to her service-connected right leg deep vein thrombosis. The Board notes that the RO, in denying the Veteran a 40 percent disability rating, found that the Veteran was not entitled to such a disability evaluation because she did not have claudication on walking 25 to 100 yards on a level grade at 2 miles per hour and trophic changes. However, the Board points out that rating criteria indicates that the Veteran has to have an ankle/brachial index of .7 or less OR claudication on walking and trophic changes to warrant a 40 percent disability evaluation. As such, the Board finds that the Veteran's symptomatology at least satisfies the criteria for a 40 percent disability evaluation for her service-connected right leg deep vein thrombosis for the period beginning on May 16, 2014. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for lumbar spine degenerative joint and disc disease, currently rated as 10 percent disabling, is remanded. 2. Entitlement to an increased disability evaluation for bronchitis with pulmonary vascular disease, currently rated as noncompensable, is remanded. 3. Entitlement to an initial disability evaluation in excess of 20 percent for right leg deep vein thrombosis is remanded. 4. Entitlement to an increased disability evaluation for right leg deep vein thrombosis, rated as 40 percent disabling since May 16, 2014, is remanded The Veteran asserts that the symptoms of her service-connected lumbar spine degenerative joint and disc disease, bronchitis with pulmonary vascular disease, and right leg deep vein thrombosis are more severe than presently evaluated. The Board observes that Veteran was most recently afforded VA examinations in June 2011, May 2012, and May 2014, and that her claims were previously remanded by the Board in June 2016 so that the current severity of the Veteran’s service-connected disabilities on appeal could be evaluated. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board acknowledges that the Veteran’s claims file indicates that VA examinations were requested by the RO in July 2016, and that the Veteran failed to report; the RO was informed that the Veteran was residing overseas and was provided with her mailing address in Germany. Nonetheless, the RO appears to have recorded a Colorado address for the Veteran. The claims file reflects that VA examination were requested in October 2018 and August 2019; however, the requests are not dated, and no notice of the examinations was associated with the claims file; no date or time for the VA examinations were noted on either request. August 2019 VA examination cancellation notices show that the Veteran “refused” to report; however, it is unclear whether the Veteran was sent notice of the VA examinations or to what address; there is also no email correspondence or report of contact indicating the Veteran refused to report to any scheduled VA examinations. A January 2020 VA Form 21-4138 (Statement in Support of Claim) indicates that the Veteran had relocated to a Maryland address and that she requested that she be afforded VA examinations in connection with her claims for increased disability ratings. The Board is cognizant of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination “when entitlement to a benefit cannot be established” without the scheduled examination. 38 C.F.R. §§ 3.655(a), (b). Nevertheless, in this case, it is unclear whether the Veteran was properly notified, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). To this point, there is no report of contact confirming that the RO scheduled the Veteran for VA examinations with regard to her claims for increased disability ratings. Likewise, no written notice to the Veteran of the actual date and time of the VA examinations is of record, and it is unclear whether any such notice was mailed to the Veteran by the RO. To this point, the Board also observes that the claims file does not reflect any record of a date and time for the scheduled VA examination, including on the report indicating that the Veteran “refused” to appear for her scheduled VA examinations. Therefore, in order to ensure compliance with the directive in the June 2016 Board remand, the Veteran’s claims must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). See also Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claims on appeal for the rating period should be associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. Contact the Veteran and request that she identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated her for her service-connected disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected right leg deep vein thrombosis. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 3. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected bronchitis with pulmonary vascular disease. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 4. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran’s service-connected lumbar spine degenerative joint and disc disease. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected lumbar spine degenerative joint and disc disease on her occupational functioning and daily activities. In particular, the VA examination must include range of motion testing for the thoracolumbar spine in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing The VA examiner is requested to provide an estimate as to functional loss due to flare-ups of the Veteran’s service-connected lumbar spine degenerative joint and disc disease. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 5. After completing all indicated development, the RO should readjudicate the remaining claims on appeal, in light of all of the evidence of record. If the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The case should be returned to the Board after compliance with requisite appellate procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Brokowsky, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.