Citation Nr: A21017889 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 191226-57929 DATE: November 4, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected atherosclerosis of right lower extremity with intermittent claudication right leg is remanded. Entitlement to an initial compensable rating for service-connected atherosclerosis of left lower extremity with intermittent claudication left leg is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1953 to August 1956. The rating decision on appeal was issued in December 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the March 2021 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board notes that the Veteran also appealed a May 2020 rating decision that denied service connection for squamous cell carcinoma, left lung, and that he participated in a March 2021 hearing before the undersigned Veterans Law Judge on that issue. That appeal will be addressed in a separate decision. As will be explained, the issues on appeal must be remanded to correct a duty to assist error that occurred prior to the December 2019 rating decision on appeal. 38 C.F.R. § 20.802. In the December 2019 rating decision, the Veteran's service-connected atherosclerosis of bilateral lower extremities with intermittent claudication was rated by analogy under Diagnostic Code 7114, arteriosclerosis obliterans, and his right lower extremity was assigned an initial 20 percent disability rating, while his left lower extremity was assigned a noncompensable rating. See 38 C.F.R. § 4.104. In doing so, the AOJ noted that its decision was based on an August 2019 VA examination report. Unfortunately, the August 2019 VA examination report appears to be incomplete in addressing the pertinent rating criteria, and it also fails to reflect consideration of pertinent evidence of record. First, as noted above, the AOJ assigned the Veteran's current disability ratings under Diagnostic Code 7114, arteriosclerosis obliterans. However, under Section IV of the examination report that addresses the pertinent rating criteria, the examiner merely noted that the Veteran did not suffer from peripheral vascular disease, arteriosclerosis obliterans, thrombo-angiitis obliterans, and/or aneurysm of any large artery. None of the signs and/or symptoms pertinent to Diagnostic Code 7114 were indicated. While that could mean that the Veteran experiences none of the symptoms listed, the Board also notes that the examiner also indicated in the examination report that the Veteran experienced intermittent claudication in his bilateral lower extremities, and that he had difficulty walking and was a liability due to frequent falls. Furthermore, the rating criteria in Diagnostic Code 7114 contemplates the presence of ischemic ulcers and, while the examiner did not indicate the presence of ischemic ulcers, a May 2019 private treatment record noted a diagnosis of critical limb ischemia with ulcer of the right foot. The Board also notes that, while the VA examiner noted that ankle/brachial index testing was performed in March 2018, and that the right ankle/brachial index was .4, and the left ankle/brachial index was 1.6, review of the Veteran's private treatment records reflect that those results were from a May 2019 ankle/brachial index test. Furthermore, the March 2018 ankle/brachial index testing revealed a right ankle/brachial index of .85 and a left ankle/brachial index of 1; however, the private treatment provider indicated that the results were falsely elevated and, thus, potentially unreliable for rating purposes. Because the August 2019 VA examination report is seemingly inconsistent with itself and the other evidence of record, because that the pertinent rating criteria was not addressed fully, the Board finds that the AOJ relied on an inadequate VA examination report in assigning the initial ratings to the Veteran's service-connected atherosclerosis of bilateral lower extremities with intermittent claudication of the bilateral legs. As such, a remand is necessary so that the Veteran can be afforded a new VA examination. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected atherosclerosis of bilateral lower extremities with intermittent claudication. The entire record must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted, to include ankle/brachial index testing. The examiner should identify the nature and severity of all current manifestations of his service-connected bilateral lower extremities with intermittent claudication, to specifically include the ankle/brachial index for each extremity. The examiner should also note whether any of the following are present for either extremity: ischemic limb pain at rest; deep ischemic ulcers; claudication on walking less than 25 yards on a level grade at 2 miles per hour; persistent coldness of the extremity; claudication on walking between 25 yards and 100 yards on a level grade a 2 miles per house; trophic changes (thin skin, absence of hair, dystrophic nails) claudication on walking more than 100 yards; and/or diminished pulses. If possible, the examiner should describe the progression of the Veteran's disability since the effective date of the award of service connection, since March 2018. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.