Citation Nr: 21000515 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-24 256 DATE: January 5, 2021 ORDER Entitlement to an evaluation of 40 percent, but no higher, prior to April 22, 2020 for right leg post-phlebotic syndrome is granted. Entitlement to an evaluation of 40 percent, but no higher, prior to April 22, 2020 for left leg post-phlebotic syndrome is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to an increased rating in excess of 20 percent for left ankle, status post excision of osteophytes (left ankle disability) is remanded. Entitlement to an increased rating in excess of 20 percent for right ankle, status post excision of osteophytes (right ankle disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 10, 2019 and from October 1, 2019 is remanded. Entitlement to an effective date prior to December 2, 2014 for the grant of an increased rating of 20 percent for a left ankle disability is remanded. Entitlement to an effective date prior to December 2, 2014 for the grant of an increased rating of 20 percent for a right ankle disability is remanded. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his right and left leg post-phlebotic syndrome manifested in persistent edema and stasis pigmentation without ulceration or massive board-like edema prior to April 22, 2020. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 40 percent, but no higher, prior to April 22, 2020 for right leg post-phlebotic syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code (Code) 7121 (2019). 2. The criteria for entitlement to an evaluation of 40 percent, but no higher, prior to April 22, 2020 for left leg post-phlebotic syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Code 7121 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1986 to October 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015, May 2018, November 2018, and January 2019 rating decisions by the Department of Veterans Affairs (VA). Several issues were remanded by the Board in October 2018; the case has since been re-assigned to the undersigned. The issues of entitlement to increased ratings for right and left ankle disabilities were denied by the Board in a July 2018 Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision for those issues in a July 2019 Memorandum Decision. The Board remanded the issues in December 2019; they are once again before the Board and have been re-assigned to the undersigned. After the Agency of Original Jurisdiction (AOJ) issued a statement of the case (SOC) for the issue of entitlement to service connection for a left hip disability, the Veteran filed a simultaneous VA Form 10182 and substantive appeal (VA Form 9) for that issue in February 2020. VA requested clarification regarding whether the Veteran would like to opt-in that issue to the legal framework created by the Appeals Modernization Act (AMA). See April 2020 VA correspondence. The Veteran did not respond. As a result, the issue remains in the legacy legal framework and the Board will proceed with adjudication. Because the Veteran has been awarded a combined rating of 100 percent and special monthly compensation (SMC) based on housebound status from April 10, 2019 to September 30, 2019, the issue of entitlement to TDIU is moot during that period. The issue has been recharacterized accordingly. In his July 2020 VA Form 9, the Veteran limited his appeal from a July 2020 SOC to the “Effective date for 40% Left and Right Post-Phlebotic Syndrome.” The Board has interpreted his statement to mean that he appealed entitlement to increased ratings prior to April 22, 2020 for right and left leg post-phlebotic syndrome, because entitlement to an earlier effective date for the grant of increased ratings was not an issue originally appealed from a rating decision (rather, the increased ratings of 40 percent were awarded during the course of an ongoing increased rating appeal). As a result, the issues of entitlement to increased ratings in excess of 40 percent for left and right leg post-phlebotic syndrome from April 22, 2020, an earlier effective date for the grants of service connection for left and right leg post-phlebotic syndrome, service connection for shortening of the right leg, and service connection for a skin condition of the feet and legs are not before the Board. Finally, the Board notes that the Veteran’s case has been advanced on the docket since at least July 2018. As a result, his more recent requests to have his case advanced on the docket are moot and the Board will not further respond to them. Entitlement to evaluations in excess of 10 percent prior to April 22, 2020 for right and left leg post- phlebotic syndrome. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran asserts that his symptoms warrant a rating of 40 percent for left and right leg post-phlebotic syndrome because he stated that he had discoloration in both of his legs and swelling at the time of his application. See July 2020 VA Form 9. The Veteran’s bilateral leg post-phlebotic syndrome is rated pursuant to Code 7121, which is for post-phlebitic syndrome of any etiology. Pursuant to the Code, a 10 percent rating is awarded for intermittent edema of extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is awarded for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is awarded for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is awarded for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Finally, a 100 percent rating is awarded for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Code 7121. During an October 2018 VA examination, the Veteran reported constant increased tightening of the skin, swelling, itching, discoloration, and burning. The examiner opined that the Veteran had aching and fatigue in the leg after prolonged standing and walking. There was persistent stasis pigmentation, but not persistent edema. An April 2020 VA examiner thereafter opined the Veteran also had persistent edema. In a January 2016 letter to his VA treating nurse practitioner that was received in July 2018, the Veteran reported discoloration in both of his legs, with one being more swollen than the other. See July 2018 correspondence. January 2018 private treatment records reflect some increasing edema in the lower extremities. The Board assigns little probative weight to the October 2018 VA examiner’s opinion that the Veteran did not have edema because the examiner did not explain why his opinion is contrary to the Veteran’s contemporaneous report of swelling in his legs. As a result, the examination is outweighed by the April 2020 VA examiner’s opinion that the Veteran had persistent edema, the Veteran’s lay reports of swelling, and private treatment records reflecting increased edema. Thus, after resolving reasonable doubt in the Veteran’s favor, his right and left leg post-phlebotic syndrome manifested in persistent edema with stasis pigmentation prior to April 22, 2020. There is no evidence, including lay statements, that the Veteran has had ulcers due to his post-phlebotic syndrome during the appeal period. Thus, a 60 percent rating is not warranted. Moreover, there is no evidence, including lay statements, that the Veteran’s disability manifested in massive board-like edema. Thus, a 100 percent rating is also not warranted. As a result, evaluations of 40 percent, but no higher, for right and left leg post-phlebotic syndrome are warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left and right knee disability. The Veteran has consistently reported that he fell and injured his right knee during service, despite not seeking treatment for it at the time. See, e.g., October 1989 VA examination. He has also asserted that his knee disabilities are secondary to his service-connected ankle disabilities. See, e.g., April 1991 VA examination. He reported that his surgeon and other doctors informed him that he would have issues with his knees due to his surgery on both ankles. See November 2013 VA Form 21-4142; June 2018 NOD. As noted by the Board in October 2018, the Veteran submitted a private opinion from his treating physician, Dr. D. Cox, DPM, wherein he opined that the Veteran’s service-connected ankle disabilities contributed to the arthritis in both of his knees. See May 2017 private treatment records. This opinion is inadequate because it does not have a rationale. As a result, it is given no probative weight at this time. The Veteran is welcome to obtain an addendum opinion with an adequate rationale, if so desired. Another of the Veteran’s treating physicians opined that the Veteran’s ankle surgeries contributed to his knee issues. See June 2018 Foot Disability Benefits Questionnaire (DQB). This opinion is also inadequate because it does not have a rationale. As a result, it is given no probative weight at this time. The Veteran is welcome to obtain an addendum opinion with an adequate rationale, if so desired. A June 2014 VA examiner diagnosed right degenerative joint disease but did not diagnose a left knee disability. The examiner opined it was less likely than not that the Veteran’s knee disability was related to service and noted that the Veteran frequently reported ankle pain in service and after service but made no simultaneous reports of knee pain. The Veteran also had not reported knee pain at his VA intake screening in September 2009. The opinion is inadequate because the examiner merely provided a factual history of the case rather than a rationale. An October 2018 VA examiner diagnosed bilateral knee joint osteoarthritis but does not appear to have opined as to the cause of the disabilities. A May 2019 VA examiner appears to have originally opined that the Veteran’s left knee arthritis was related to his left ankle surgery, relying on the May 2017 private opinion by Dr. Cox. The examiner thereafter retracted her opinion and noted that the May 2017 private opinion did not have a rationale. The examiner then opined it was less likely than not that the Veteran’s knee disabilities were due to service. The examiner noted that the May 2017 private opinion did not have a rationale and that the record was silent for right knee complaints from 1989 to 2012, including during the Veteran’s VA intake screening in 2009. The examiner’s opinion is inadequate because it merely provides a factual background and is conclusory. Indeed, the examiner stated that the 1989 x-ray showing a small osteophyte is not an early manifestation of the Veteran’s current right knee disability, without further explanation. The examiner also relied on the absence of medical evidence showing chronicity of care after 1989, while the Veteran reported ankle pain that goes up to his knees during an April 1991 VA examination. The Board notes that the May 2019 VA examiner only provided an opinion regarding direct service connection and used the same opinion for secondary service connection. Thus, to the extent that the May 2019 VA examiner opined that the Veteran’s knee disabilities are not related to his ankle disabilities, the opinions are inadequate. A December 2019 VA examiner appears to have submitted several negative opinions. Most of the opinions reflect that the examiner believed it was less likely than not that the Veteran’s knee disabilities were related to his ankle disabilities but relied on medical literature without further explanation for the specifics of the Veteran’s case. The examiner also provided that the disabilities “are not medically related” and noted that the Veteran would need to have major muscle or nerve damage causing partial or complete paralysis of the damaged leg and/or shortening of the injured lower extremity resulting in limb length discrepancy resulting in an altered gait. The examiner did not discuss that the Veteran reported he had an antalgic gait in his February 2019 NOD. As a result, the opinions are inadequate. Because the opinions of record are inadequate, remand for a new opinion is necessary. 2. Entitlement to service connection for a left hip disability. The Veteran asserts that he has left hip pain that is due to an altered gait resulting from his service-connected ankle disabilities. See February 2019 NOD. He has not been diagnosed with a left hip disability and a December 2018 VA examiner opined that the Veteran did not have a disability. However, pain with functional impairment can be a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). It is unclear whether the Veteran has any functional impairment due to his left hip. He described radiating pain down the left leg which has been attributed to radiculopathy. See December 2018 VA examination. While he had limited range of motion, the examiner attributed this to his knee condition and obesity. Id. Because it is unclear whether the Veteran has functional impairment resulting from his left hip pain, remand for a new opinion is necessary. The Board notes that, in private treatment records, the Veteran reported that he has left hip pain due to an altered gait from his ankles, see January 2018 private treatment records, but there is no actual opinion from the physician about a relationship. The Veteran is welcome to obtain such an opinion with a detailed rationale from his treating physician, if so desired. 3. Entitlement to service connection for a heart disability. The Veteran reported that he has chest pain when under personal stress and that he had discomfort shortly after discharge from service. See May 2019 VA examination. During a September 1989 VA examination, the Veteran was diagnosed with an enlarged heart. A May 2019 VA examiner diagnosed coronary artery disease, congestive heart failure, cardiomyopathy, and non-ischemic cardiomyopathy. An October 2019 letter from the Veteran’s private psychologist, Dr. T. Jefferson, PhD, reflects that the Veteran experiences an increased heart rate when stressed. See October 2019 correspondence. To the extent that this is an opinion regarding the Veteran’s heart disabilities, the opinion is inadequate because it only discusses an increased heart rate rather than the Veteran’s diagnosed heart disabilities. The May 2019 VA examiner opined it was less likely than not that the Veteran’s heart disabilities were related to service but relied on the absence of medical evidence from 1989 to the current appeal period. As a result, the opinion is inadequate. The examiner also opined it was less likely as not that the Veteran’s disabilities were related to his service-connected hypertension but similarly relied on the absence of evidence of record. Moreover, the examiner did not discuss the letter from Dr. Jefferson. Thus, the secondary service connection opinions are also inadequate. The Veteran’s report that he has chest pain when stressed and Dr. Jefferson’s letter raise the issue of whether his heart disabilities are related to his service-connected generalized anxiety disorder. Because there are no adequate opinions of record, remand for new opinions is necessary. 4. Entitlement to increased ratings in excess of 20 percent for a left ankle and right ankle disability. As discussed below, an SOC must be issued for the issues of entitlement to an effective date prior to December 2, 2014 for the grants of increased ratings for a left ankle and right ankle disability. If that issue is properly appealed, the appeal period for the issues of increased ratings for a left ankle and right ankle disability may change. Thus, at this time, these increased rating issues are inextricably intertwined with the earlier effective date issues. 5. Entitlement to TDIU prior to April 10, 2019 and from October 1, 2019. The matter of entitlement to TDIU is inextricably intertwined with the Veteran’s other remanded increased rating issues; accordingly, it must be remanded as well. 6. Entitlement to an effective date prior to December 2, 2014 for the grants of an increased rating of 20 percent for a left and right ankle disability. The Board granted increased ratings of 20 percent for the Veteran’s left and right ankle disabilities in a July 2018 Board decision. In a July 2018 rating decision, the AOJ assigned effective dates of December 2, 2014 for the grant of the increased ratings for both disabilities. Notably, there is no evidence in the record that the AOJ ever notified the Veteran of this rating decision. In November 2018, the Veteran submitted an NOD disagreeing with the effective date assigned in an August 9, 2018 rating decision. There is no evidence in the record of VA issuing any correspondence on August 9, 2018, let alone a rating decision. The Veteran did not ever state the word “ankle,” in the NOD, however, it is clear he was referencing the Board’s July 2018 grant of increased ratings for his ankle disabilities. The Board is unsure why he referenced an effective date of July 28, 2018 because it does not appear any service-connected disability is assigned an effective date of that day. Nonetheless, it is clear he was disagreeing with an effective date assigned for the increased ratings associated with his ankle disabilities. After resolving reasonable doubt in his favor, the Board finds that the Veteran was disagreeing with the effective date assigned for the grants of increased ratings for his service-connected ankle disabilities. It appears that the July 2018 rating decision may have been issued on August 9, 2018 and there is simply no record of the notification letter. Thus, the Board finds that the November 2018 NOD is a valid NOD to the effective dates assigned in the July 2018 rating decision. Because an SOC has not been issued adjudicating these issues, remand for an SOC is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from October 2020 to the present. 2. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For the Veteran’s bilateral knee joint osteoarthritis, degenerative arthritis, and bursitis, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected ankle disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner may not solely rely on the absence of medical evidence. The examiner may not cite to medical literature without further discussing the specific facts of the Veteran’s case. The examiner must discuss private opinions, such as Dr. Cox’s May 2017 private opinion, that describe a relation. (b.) For the Veteran’s bilateral knee joint osteoarthritis, degenerative arthritis, and bursitis, is it at least as likely as not (50% or greater probability) that the disabilities are related to the Veteran’s military service? Please explain why. The examiner may not solely rely on the absence of medical evidence for any period of time. The examiner may not cite to medical literature without further discussing the specific facts of the Veteran’s case. 3. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left hip disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left disabilities present during the appeal period (from November 2018). If no left hip disability is diagnosed, the examiner must provide any functional impairment that results from the Veteran’s left hip pain. (b.) For each left hip disability diagnosed, or for pain with functional impairment, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected ankle disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss the Veteran’s report of an altered gait due to his ankles. 4. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any heart disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For the Veteran’s coronary artery disease, congestive heart failure, cardiomyopathy, and non-ischemic cardiomyopathy, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected generalized anxiety disorder or hypertension? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss generalized anxiety disorder and hypertension. The examiner may not solely rely on the absence of evidence and must discuss Dr. Jefferson’s October 2019 letter, as appropriate. (b.) For the Veteran’s coronary artery disease, congestive heart failure, cardiomyopathy, and non-ischemic cardiomyopathy, is it at least as likely as not (50% or greater probability) that the disability was incurred in or related to the Veteran’s military service? Please explain why. The examiner must discuss the notation of an enlarged heart shortly after service and may not rely solely on the absence of medical evidence in the years immediately after service. 5. The AOJ should send the Veteran and his representative an SOC that addresses entitlement to an effective date prior to December 2, 2014 for the grants of an increased rating of 20 percent for a left and right ankle disability. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration as appropriate. CONTINUED ON NEXT PAGE 6. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, Associate 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.