Citation Nr: 21009228 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 14-19 352 DATE: February 19, 2021 ORDER The reduction in the rating for peripheral vascular disease (PVD) of the left lower extremity was proper. A higher rating for PVD of the left lower extremity, currently rated as 20 percent disabling, is denied. The reduction in the rating for PVD of the right lower extremity was proper. A higher rating for PVD of the right lower extremity, currently rated as 20 percent disabling, is denied. For the period prior to March 3, 2013, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s PVD of the left lower extremity manifested a sustained improvement. 2. During the period on appeal, the Veteran’s PVD of the left lower extremity has been manifested by symptoms more nearly approximating claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. 3. The preponderance of the evidence shows that the Veteran’s PVD of the right lower extremity manifested a sustained improvement. 4. During the period on appeal, the Veteran’s PVD of the right lower extremity has been manifested by symptoms more nearly approximating claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. 5. For the period prior to March 3, 2013, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities were as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction in the rating for PVD of the left lower extremity, from 40 percent, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.10, 4.104, Diagnostic Code (DC) 7114. 2. The criteria for a higher rating for PVD of the left lower extremity, currently rated as 20 percent disabling, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.104, DC 7114. 3. The reduction in the rating for PVD of the right lower extremity, from 40 percent, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.10, 4.104, Diagnostic Code (DC) 7114. 4. The criteria for a higher rating for PVD of the right lower extremity, currently rated as 20 percent disabling, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.104, DC 7114. 5. For the period prior to March 3, 2013, the criteria for an award of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to June 1994. These matters come before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision. In a November 2018 statement, the Veteran withdrew his pending Board hearing request. 38 C.F.R. § 20.704(e). In March 2019, the Board remanded the Veteran’s appeal for additional development. The Board’s March 2019 remand included the issue of service connection for a mental health disability. Since then, an October 2020 rating decision granted service connection for major depressive disorder. As such, the issue of service connection for a mental health disability is no longer on appellate status. 1. Entitlement to a higher rating for PVD of the left lower extremity, currently rated as 20 percent disabling, to include the propriety of the reduction in rating from 40 percent, effective July 1, 2012. 2. Entitlement to a higher rating for PVD of the right lower extremity, currently rated as 20 percent disabling, to include the propriety of the reduction in rating from 40 percent, effective July 1, 2012. Service connection for bilateral PVD was established via a final June 2009 rating decision. In a supplemental claim received in November 2010, the Veteran requested a higher rating for this disability. 11/03/2010, VA 21-526b, Veteran Supplemental Claim. This resulted in a proposed reduction in the rating for PVD from 40 percent to noncompensable, bilaterally. 06/29/2011, Rating Decision. A subsequent April 2012 rating decision implemented the proposed reduction, effective July 1, 2012. 04/06/2012, Rating Decision. The Veteran is appealing this decision. 05/01/2012, NOD. Finally, the Board notes that an October 2020 rating decision assigned a higher rating of 20 percent for PVD, bilaterally, effective July 1, 2012. 10/15/2020, Rating decision. *** In any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). VA regulations provide for specific notice requirements in instances where a reduction in disability rating is considered. 38 C.F.R. § 3.105(e). When a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. 38 C.F.R. § 3.105(e). This proposed rating should set forth all of the material facts and reasons for the proposed reduction. Id. The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. Id. Here, the RO issued a rating reduction proposal in June 2011, which set forth the material facts and reasons for the proposed reduction. The Veteran was given more than 60 days to respond and present additional evidence. In April 2012, the RO issued a rating decision effectuating the reduction. Therefore, the notice requirements for the rating reduction were satisfied. See 38 C.F.R. § 3.105(e). At the time the reduction became effective, the 40 percent rating for the Veteran’s PVD had been in effect for less than 5 years (since February 5, 2009). As such, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. Under 38 C.F.R. § 3.344(c), which applies to ratings in effect for less than 5 years, re-examinations disclosing improvement, physical or mental, will warrant reduction in rating. The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. See Brown, 5 Vet. App. at 421 (stating that in a reduction case the issue is whether the RO was justified in reducing the veteran’s 30 percent rating, rather than whether the veteran was entitled to “reinstatement” of the 30 percent rating, and the Board was required to establish, by a preponderance of evidence and in compliance with 38 C.F.R. § 3.344(a), that a rating reduction was warranted). The Veteran’s PVD is rated under Diagnostic Code (DC) 7114. Under DC 7114, a rating of 20 percent is warranted for disability manifesting as claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. A rating of 40 percent is warranted for disability manifesting as 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 rating of 60 percent is warranted for disability manifesting as 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 total rating of 100 percent is warranted for disability manifesting as 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, DC 7114. The ankle/brachial index 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. Id., Note (1). These evaluations are for involvement of a single extremity. If more than one extremity is affected, each extremity is to be evaluated separately. Id., Note (3). *** At the time of the Veteran’s November 2010 claim for a higher rating, his PVD was rated as 40 percent disabling, bilaterally. This rating was based on an April 2009 VA examination. At the time, the Veteran reported symptoms of claudication after walking 50 yards on a level ground at two miles per hour, and a Doppler study revealed an ankle/brachial index of 0.59/0.72 on the right side and 0.58/0.59 on the left side. See 06/03/2009, C&P Exam; see also 01/21/2020, C&P Exam (discussing results from 2009). These findings approximate the criteria for a rating of 40 percent under DC 7114. During the appeal period, the Veteran has undergone two VA examinations. First, a January 2011 VA examination reflects that the Veteran reported leg cramping and pain after walking 400 yards on level ground at two miles per hour. Per a Doppler test, the ankle/brachial index was 1.16/1.24 on the right side and 1.24/1.30 on the left side. A January 2020 VA examination describes these results from January 2011 as normal and indicates that a subsequent ABI in 2015 had shown normal digital pressures and that a treatment visit in October 2019 had shown normal pulses and a denial of claudication. Regarding symptoms, the Veteran reported throbbing in his legs that is relieved with rest. He stated that he was able to walk at the mall for several minutes before having to stop. The examiner described these symptoms as bilateral claudication on walking more than 100 yards and persistent coldness of both extremities. The examiner concluded that the Veteran’s PVD did not impact his ability to work. As mentioned above, a rating reduction must be supported by a preponderance of the evidence. In other words, a preponderance of the evidence must show an improvement in the severity of the veteran’s disability, to include consideration of his ability to function under the ordinary conditions of life and work. In this case, however, the preponderance of the evidence demonstrates that re-examination of the Veteran’s bilateral PVD has disclosed improvement. As detailed above, the January 2011 VA examination shows an improvement in comparison to the April 2009 VA examination that provided the basis for the 40 percent rating. Notably, the January 2011 VA examination shows that claudication symptoms manifested after 400 yards, as opposed to the 50 yards reported in April 2009. Additionally, a comparison of Doppler test results from April 2009 to those in January 2011 provide objective evidence of an improvement. Equally as important, the evidence establishes that the improvement in veteran’s ability to function under the ordinary conditions of life and work has been sustained, as evidenced by the January 2020 VA examination. In this regard, the Board is particularly persuaded by the January 2020 VA examiner’s interpretation of the Veteran’s history, indicating that the Veteran’s symptoms have remained stable since January 2011. Additionally, the 2009 and 2011 VA examination tend to show the same level of thoroughness as they note the Veteran’s symptoms, his claudication on walking, and contain Doppler studies. Based on the above, the Board concludes there has been an actual change in his PVD when viewed in light of its medical history. Therefore, the rating reduction for PVD, from 40 percent to currently assigned 20 percent, was appropriate. The Board has considered whether higher ratings are warranted during the appeal period. The evidence of record, however, does not support either a rating higher than 40 percent for the period prior to July 1, 2012, or a rating higher than 20 percent thereafter. As discussed above, the evidence of record fails to show symptoms approximating the criteria for a rating of 40 percent at any time during the appeal period. Rather, the January 2011 VA examination shows symptoms approximating the criteria for a rating of 20 percent (claudication after walking 100 yards or more), with no indication of more severe symptoms since then. As such, the competent and probative evidence tends to weigh against a rating in excess of the currently assigned 20 percent. 3. Entitlement to a TDIU. The issue of entitlement to a TDIU has been raised by the record as part and parcel of the increased rating claim on appeal. 09/20/2011, NOD; Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).   The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C.. § 1114(s)). *** In this case, the Veteran has had a combined rating of 100 percent since March 3, 2013. Since that date, he has also been in receipt of SMC under 38 U.S.C. § 1114(s), based on a rating of 100 percent for diabetes mellitus type 2 and additional separate and distinct service-connected disabilities independently ratable at 60 percent or more. This represents the maximum benefit available to the Veteran. As such, the Board will only focus on whether a TDIU is warranted for the period prior to March 3, 2013. For the period prior to March 3, 2013, the Veteran has a combined rating of at least 70 percent, based on the following disabilities: diabetes mellitus type 2 (20 percent from February 5, 2009), traumatic arthritis of the right shoulder, knee, and ankles (20 percent from June 2, 1994), PVD (40 percent from February 5, 2009 and then 20 percent from July 1, 2012 for each lower extremity), tinnitus (10 percent from November 3, 2010), major depressive disorder (10 percent from August 24, 2011), hearing loss (noncompensable), erectile dysfunction (noncompensable), and bilateral diabetic retinopathy (noncompensable). Based on these ratings, the Veteran meets the percentage threshold for consideration of a TDIU on a schedular basis from February 5, 2009. 38 C.F.R. § 4.16(a). Pursuant to the Board’s March 2019 remand, the Agency of Original Jurisdiction (AOJ), in October 2019, sent a letter to the Veteran, asking him to submit the relevant forms and evidence to substantiate his TDIU claim. 10/18/2019, Subsequent Development Letter. There is, however, no indication that the Veteran has responded to this request, to include submitting a TDIU application form, information regarding his employment, or any other relevant evidence. Notwithstanding the above, the evidence of record indicates that the Veteran retired in 2014 and that he worked for a major telecommunications company as a customer service representative. 01/16/2020, C&P Exam, at 5. From this evidence, which is based on information reported by the Veteran during a VA mental health examination, it is reasonable to deduce that the Veteran was employed during the period prior to March 3, 2013 from the report at the 2020 VA mental disorder examination. There is no argument to the contrary or indication that the Veteran’s employment during that period was marginal and the Veteran has not submitted evidence tending to show that it was. 38 U.S.C. § 5107(a). As the competent and credible evidence tends to show that the Veteran was fully and gainfully employed during the period prior to March 3, 2013, entitlement to a TDIU is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.