Citation Nr: 21072510 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-48 311 DATE: December 3, 2021 ORDER Entitlement to a rating in excess of 0 percent prior to February 23, 2021, and in excess of 20 percent as of February 23, 2021, for right lower extremity peripheral arterial occlusive disease is denied. Entitlement to a rating in excess of 0 percent prior to February 23, 2021, and in excess of 20 percent as of February 23, 2021, for left lower extremity peripheral arterial occlusive disease is denied. Entitlement to a rating in excess of 20 percent for a back disability is denied. FINDINGS OF FACT 1. Prior to February 23, 2021, the preponderance of the evidence shows that the Veteran had right and left ankle/brachial index above 0.9, normal peripheral pulses, and no objective evidence of claudication on walking more than 100 yards. 2. As of February 23, 2021, the preponderance of the evidence shows that the Veteran does not have 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. 3. A service-connected back disability was not manifested by thoracolumbar spine flexion limited to 30 degrees or less, ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. The criteria for entitlement to initial compensable ratings, prior to February 23, 2021, for right and left lower extremity peripheral arterial occlusive disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7114. 2. The criteria for entitlement to an rating in excess of 20 percent, as of February 23, 2021, for right and left lower extremity peripheral arterial occlusive disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7114. 3. The criteria for entitlement to a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2015 and May 2015 rating decisions issued by Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In December 2018, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). During the course of the appeal, an August 2020 rating decision established service connection for sciatic diabetic peripheral neuropathy and lumbar radiculopathy of the right and left lower extremities and assigned each a 10 percent rating, effective April 30, 2014. The August 2020 rating decision also established entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), effective April 30, 2014. The August 2020 decision represents a full grant of benefits sought regarding those issues. Therefore, the issues of entitlement to service connection for sciatic diabetic peripheral neuropathy and lumbar radiculopathy of the right and left lower extremities and entitlement to TDIU are no longer on appeal. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to an initial compensable rating for right lower extremity peripheral arterial occlusive disease 2. Entitlement to an initial compensable rating for left lower extremity peripheral arterial occlusive disease The Veteran's bilateral lower extremity peripheral arterial occlusive disease was rated 0 percent for each extremity under Diagnostic Code 7114 for arteriosclerosis obliterans prior to February 23, 2021, and 20 percent as of February 23, 2021. Under Diagnostic Code 7114, a 20 percent rating is warranted for arteriosclerosis obliterans with claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. A 40 percent rating is warranted for arteriosclerosis obliterans with 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 is assigned for arteriosclerosis obliterans with 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 is assigned for arteriosclerosis obliterans 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, Diagnostic Code 7114. 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. 38 C.F.R. § 4.104, Diagnostic Code 7114, Note (1). The criteria listed in Diagnostic Code 7114 are conjunctive, as evidenced by the use of the word "and." Use of the conjunctive "and" in rating criteria means that entitlement to that rating requires all listed criteria be met Melson v. Derwinski, 1 Vet. App. 334 (1991); Camacho v. Nicholson, 21 Vet. App. 360 (2007). In order to satisfy the criteria for a 20 percent rating, the evidence must show that the Veteran has claudication on walking more than 100 yards and diminished peripheral pulses, or claudication on walking more than 100 yards and ankle/brachial index of 0.9 or less. The Veteran asserts that service-connected peripheral vascular disease of the right and left lower extremities is more severe than contemplated by the 0 percent ratings assigned. An April 2015 VA examination diagnosed bilateral lower extremity peripheral arterial occlusive disease and varicose veins. The Veteran reported leg cramps which occurred at night and with standing and walking. The Veteran denied claudication when walking. The examiner noted claudication on walking more than 100 yards. The right and left ankle/brachial indexes were 1.33 each. The results of a March 2015 arterial doppler of the lower extremities showed mild atherosclerosis of the bilateral common femoral arteries and right distal superficial femoral artery. At a December 2018 VA examination, the Veteran reported claudication pain in both legs with prolonged walking. The symptoms were relieved by elevation of the legs. The examiner noted that there were mild varicose veins at the back of the legs or calf areas. The examiner noted claudication on walking more than 100 yards. The right ankle/brachial index was 1.14 and left ankle/brachial index was 1.13. In July 2019 and February 2020, the Veteran's doctor noted varicosities in both legs with full peripheral pulses, no edema, and no cyanosis. An August 2021 VA examination diagnosed bilateral peripheral arterial disease. The condition had worsened and the Veteran experienced cramps and pedal edema. The Veteran had diminished peripheral pulses on both sides. An arterial duplex scan found lower extremity artery disease, atherosclerotic, with insignificant stenosis (less than 50 percent) in the bilateral distal external iliac arteries, common femoral artery, deep femoral artery, superficial femoral artery, popliteal artery, tibio peroneal trunk, posterior tibial artery, peroneal artery, anterior tibial artery, and dorsalis pedis artery. The Veteran could not tolerate prolonged standing or walking. After careful review of the record, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for peripheral vascular disease of the right or left lower extremity prior to February 23, 2021. Specifically, the evidence shows that the Veteran's ankle/brachial index was at the worst 1.14 for the right lower extremity and 1.13 for the left lower extremity during the appeal period. In addition, the peripheral pulses were noted as normal. The Board finds that peripheral vascular disease has not more nearly approximated the criteria for a compensable rating, for the right or left lower extremity, prior to February 23, 2021. The evidence does not show that the Veteran has claudication on walking more than 100 yards and diminished peripheral pulses, or claudication on walking more than 100 yards and ankle/brachial index of 0.9 or less. The evidence does not show that the Veteran has diminished peripheral pulses or an ankle/brachial index of 0.9 or less. As of February 23, 2021, the Board finds that the criteria for a rating greater than 20 percent have not been met. The evidence does not show 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. The evidence of record also does not show persistent coldness of the extremity, ischemic limb pain at rest, or deep ischemic ulcers to support the assignment of any higher rating during the appeal period. The Veteran is competent to report observable symptoms such as pain in the legs and difficulty walking. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not shown to have the requisite education, experience, and training to determine the severity level of service-connected peripheral vascular disease of the lower extremities as it applies to the rating schedule. Therefore, the clinical findings reported by medical professionals are more probative. Accordingly, as the preponderance of the evidence is against the assignment of a compensable rating for peripheral vascular disease of the right or left lower extremity, and the claims for increased ratings must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.104; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an increased rating in excess of 20 percent for a back disability Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion may be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. 38 C.F.R. § 4.59; Powell v. West, 13 Vet. App. 31 (1999); Hicks v. Brown, 8 Vet. App. 417 (1995). VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. The spine has no opposite joint. The Veteran asserts that a service-connected low back disability is more severe than contemplated by the 20 percent rating assigned. A March 2015 VA examination diagnosed degenerative arthritis of the lumbar spine and intervertebral disc syndrome (IVDS). The Veteran reported back pain which decreased mobility and caused problems with carrying, lifting, and using the stairs. The Veteran reported a flare up in 2000 but denied any current flare ups. Objectively, forward flexion was measured to 80 degrees; extension was measured to 20 degrees; right and left lateral flexion were measured to 20 degrees; and right and left lateral rotation were measured to 20 degrees. Pain with weight bearing and pain which caused functional loss was noted on examination. Pain significantly limited functional ability with repeated use over time and was described in terms of forward flexion measured to 90 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 15 degrees. Ankylosis and muscle spasms were not noted. There was guarding which resulted in abnormal gait or spinal contour. The examiner noted IVDS with no incapacitating episodes. During an April 2019 VA examination, the Veteran reported back pain and numbness in the lower extremities. The Veteran reported flare ups which caused difficulty with twisting, turning, bending, carrying, lifting, and using the stairs. Objectively, forward flexion was measured to 65 degrees; extension was measured to 10 degrees; right and left lateral flexion were measured to 15 degrees; and right and left lateral rotation were measured to 20 degrees. There was pain with all ranges of motion, pain with weight bearing, and pain caused functional loss. Pain significantly limited functional ability with repeated use over time and was described in terms of forward flexion measured to 60 degrees; extension to 5 degrees; right and left lateral flexion to 10 degrees; and right and left lateral rotation to 15 degrees. Ankylosis and muscle spasms were not noted. There was guarding which resulted in abnormal gait or spinal contour. The examiner noted IVDS with no incapacitating episodes. The Board finds that a service-connected back disability has not more nearly approximated a rating in excess of 20 percent at any time during the course of the appeal. The next higher rating requires forward flexion of the thoracolumbar spine limited to 30 degree or less; or favorable ankylosis of the entire thoracolumbar spine, which are not shown. At no time has forward flexion of the lumbar spine limited to 30 degrees or less. Forward flexion, at worst, was estimated to 60 degrees during flare ups. The evidence does not show ankylosis. The evidence shows continued complaints of back pain and functional impairment. However, there is no evidence which shows functional impairment that more nearly approximates the range of motion criteria to support a higher rating under the General Rating Formula, even considering the Veteran's subjective complaints. Even considering additional limitation of motion or function of the spine due to pain on both active and passive motion, in weight-bearing and non-weight-bearing, or other symptoms such as weakness, fatigability, or incoordination, the evidence still does not show that any additional factors approximate thoracolumbar flexion to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. The Board finds that the Veteran's symptoms are fully contemplated in the current 20 percent rating assigned. The Board notes findings of IVDS. However, the Board finds that there is no evidence of incapacitating episodes of IVDS as defined by VA regulation. Specifically, incapacitating episodes are not shown to result in prescribed bed rest and treatment by a physician. Therefore, the IVDS Formula is not for application. The Veteran has established service connection for bilateral lower extremity radiculopathy. The Board has considered whether the service-connected back disability manifests with any other associated objective neurologic abnormalities so as to warrant a separate rating under an appropriate diagnostic code. There is no evidence, medical or lay, that shows any neurologic abnormalities other than bilateral lower extremity radiculopathy. Therefore, a separate rating for other neurological abnormalities is not warranted. The Board has considered the Veteran's statements. The Veteran is competent to report observable symptoms such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Determining the nature and severity of a back disability, the range of motion of the spine, and the prescription for bed rest require medical training and expertise that the Veteran has not shown he possesses. Determining whether a back disability meets the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the severity of a service-connected back disability has been provided by medical professionals who have examined the Veteran during the current appeal, reviewed the claims file, considered the Veteran's reports and medical history, and made pertinent clinical findings. The Board finds the objective medical evidence to be the most persuasive and outweighs the Veteran's statements in support of the claim. Accordingly, the Board finds that a rating in excess of 20 percent for a low back disability is not warranted. The Board finds that the preponderance of the evidence is against the claim for increase and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.