Citation Nr: 21010045 Decision Date: 02/24/21 Archive Date: 02/23/21 DOCKET NO. 14-24 635A DATE: February 24, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of vascular surgeries of the bilateral lower extremities is denied. Entitlement to a TDIU is denied. FINDINGS OF FACT 1. The Veteran's claimed disabilities of peripheral vascular disease of the right and left lower extremities are natural progressions of the condition he underwent surgery for in October 2010 and December 2010 and not the result of VA medical or surgical treatment or failure to treat the Veteran’s peripheral vascular disease such that it was allowed to progress. 2. The Veteran's service-connected disabilities do not meet the minimum threshold for the award of a schedular TDIU, and the evidence does not show that the Veteran's service-connected disabilities rendered him unable to obtain or maintain gainful employment such that referral for extraschedular TDIU is warranted. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C.§ 1151 for residuals of vascular surgeries of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1151, 5103, 5107; 38 C.F.R. §§ 3.159, 3.361. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1973 to September 1976. In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. In October 2020, the case was remanded to obtain private treatment records. The Veteran did not submit any new authorization for medical records. 1. Compensation under 38 U.S.C. § 1151 for residuals of vascular surgeries of the bilateral lower extremities The Veteran contends that he has vascular disabilities of his lower extremities due to negligent treatment at a VA facility. The Veteran testified that bypass surgery on his lower extremities was performed incorrectly, causing additional disabilities, including blood clots and syncope. He further contends that he has additional disability of his left leg due to VA’s failure to put a stent in his leg. The Veteran testified that he had a stent put in his right leg, and his doctor tried to put a stent in his left leg. A Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701 (3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran's condition after such care, treatment, or examination has stopped. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. 38 C.F.R. § 3.361 (b). Compensation will not be payable for the continuance or natural progress of a disease or injury for which the hospitalization, medical or surgical treatment was furnished, unless VA’s failure to exercise reasonable skill and care in the diagnosis or treatment of the disease or injury caused additional disability that could have been prevented by proper diagnosis or treatment. 38 C.F.R. § 3.358(b)(2). VA treatment records dated in July 2010 reflect that the Veteran reported chronic leg pain. A physician noted that it sounded like claudication. Arterial brachial index (ABI) testing was ordered. In August 2010, a lower extremity arterial study was completed. A vascular lab report dated in August 2010 noted right and left claudication. A physician diagnosed mild right lower extremity occlusive disease and moderate left lower extremity occlusive disease. A September 2010 VA record noted bilateral claudication, right greater than left. It was suspected that the Veteran would need a right femoral endarterectomy and iliac stent. The record indicated that a right and left leg angiogram would be scheduled. In October 2010, the Veteran underwent angiography for right greater than left claudication. Severe right iliac stenosis was identified, which was successfully treated with a stent. He was advised to follow up one month after the procedure, at which time the left lower extremity was to be addressed. It was noted that the left lower extremity would be addressed at that time with either an attempt at percutaneous therapy or arrange for vein mapping for a left fem-above knee popliteal bypass depending on the severity of his symptoms. The Veteran was discharged the same day of the procedure, and the records noted that the Veteran met discharge criteria and ambulated well. In November 2010, the Veteran was seen by a vascular surgeon for follow-up. The record noted that he underwent a stent placement in October 2010 for a right iliac stent and now complained of left leg symptoms with ambulation. The option of left lower extremity angiography and possible stenting for his superficial femoral artery (SFA) occlusion was discussed, and the Veteran indicated that he wanted to proceed with the procedure. In December 2010, the Veteran underwent a left lower extremity arteriography. It was noted that there was an occluded segment of the SFA. Preliminary findings included occluded segment of the SFA; unable to cross occlusion with large collateral arising at site. A December 2010 entry in the medical records indicates that the Veteran called to ask what to do about the blocked left SFA. The record indicated that vascular surgery would follow up to determine whether a bypass would be beneficial. A January 2011 VA treatment record noted that the risks and benefits of a bypass procedure were discussed with the Veteran, and it was agreed that conservative management was the best approach at this time. The record indicated that the Veteran would continue to exercise, attempt to quit smoking, and maintain medical compliance. It was noted that Cilostazol might offer the Veteran the ability to ambulate for longer distances without pain, and Cilostazol was prescribed. In September 2012, the Veteran had a left lower extremity angiogram. The Veteran was to follow up in several weeks. If his symptoms were deteriorating and he remained limited, he would be a candidate for above the knee popliteal bypass. A March 2013 VA treatment record noted a diagnosis of mild right lower extremity arterial occlusive disease and mild to moderate left lower extremity arterial occlusive disease. The record reflects a diagnostic impression of “stable claudication symptoms.” It was noted that the Veteran wished to defer intervention and understood that his limb was not in jeopardy. He was advised to return in six months for ABI testing. A September 2013 VA treatment record reflects that the Veteran was seen for follow up of left and right extremity claudication. An arterial study showed mild occlusive arterial disease of the lower extremities. There was significant improvement in posterior tibial (PT) ABI with no significant change in dorsalis pedalis (DP) ABI compared to the previous study in March 2013. A physician noted that his symptoms were inconsistent with pure vascular claudication and may be neurogenic or orthopedic in nature. His ABI studies were mild and had improved. The Veteran was advised to follow up in six months. A VA orthopedic treatment record dated in January 2014 noted a diagnosis of mild to moderate lower extremity occlusive disease, right and moderate lower extremity occlusive disease, left. He was taking Cilostazol for claudication. A May 2014 VA treatment record noted that the Veteran’s vascular disease was stable, but his legs ached. He was advised to follow up in one year or as needed. The are no treatment records after May 2014 pertaining to treatment of peripheral vascular disease of the lower extremities. The Veteran had a VA examination in March 2020. The examiner noted a diagnosis of lower extremity claudication, with onset in September 2010. It was noted that the Veteran developed pain in his lower extremities with ambulation in September 2010 and was diagnosed with bilateral lower extremity claudication. His condition required surgical management. He underwent a right iliac stent placement in October 2010. His left leg pain was exacerbated after the surgery, so he followed up with his VA doctor. A left lower extremity runoff obtained during that visit revealed a short mid-segment SFA total occlusion with reconstitution above the left knee. His physician suggesting stenting of the left SFA occlusion. In December 2010, he returned to the hospital for left stenting, but the surgery was unsuccessful. A vascular surgery note dated in January 2012 noted lower extremity claudication, left greater than right. The report noted mild to moderate lower extremity arterial occlusive disease. The examiner opined that the condition has stayed the same since onset. His current symptoms included sharp, cutting pain in the bilateral lower extremities with prolonged activity or inactivity. The examiner noted a history of symptomatic peripheral vascular disease with painful ambulation. The examiner opined that, from 2010 to 2013, his condition went from mild to moderate, which is the normal progression of the disease. The examiner opined that the progression was not associated with a failed surgery. The examiner opined that it is less likely than not that a stent placement and the failed placement caused additional disability. The examiner opined that it makes sense that the Veteran complained of more pain on the left since he had stents placed on the right, and the right leg was able to bring more blood to the muscles. However, the examiner opined that that does not justify an additional disability. The Board notes the Veteran’s testimony that he had blood clots and syncope due to the surgical treatment for peripheral vascular disease. The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is competent to relate the symptoms that he experiences, but he is not competent to opine on whether blood clots or syncope were caused by VA medical treatment because such conclusions require specific, highly specialized, medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). While VA treatment records reflect current therapeutic anticoagulation treatment, there is no competent evidence showing that blood clots or syncope are additional disabilities that were caused by VA medical treatment for lower extremity peripheral vascular disease. The Board finds that the preponderance of the evidence is against the claim for compensation under 38 U.S.C. § 1151 for peripheral vascular disease of the lower extremities. A competent medical opinion concluded that the Veteran’s peripheral vascular disease of the lower extremities underwent a normal progression from 2010 to 2013. Thus, the evidence does not establish that there is an additional disability of the lower extremities that was caused by carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA, or failure to timely treat the Veteran's peripheral vascular disease such that it was allowed to progress. Accordingly, the claim for compensation under § 1151 for peripheral vascular disease of the lower extremities is denied. 2. Entitlement to a TDIU In a July 2014 claim, the Veteran stated that he is unemployable due to his ears, arms, legs, hands and shoulders, indicating that he last worked in September 2010 and that he had a high school education. At the Board hearing, the Veteran testified that he has a history of working with heavy machinery. He indicated that his vascular condition of the lower extremities renders him unable to work. The Veteran’s representative stated that the Veteran’s work history is comprised of physical labor, which he cannot do anymore, particularly with his leg injuries. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). If the schedular criteria are not met, a TDIU may still be granted on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Rating boards are required to submit to the Director of Compensation and Pension Service, for extraschedular consideration, all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a); see 38 C.F.R. § 4.16 (b). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. A formal claim for TDIU was received in July 2014. The Veteran’s service-connected disabilities include: right thumb strain (10 percent); tinnitus associated with perforated left eardrum (10 percent); dizziness associated with bilateral otitis media (10 percent); bilateral otitis media (10 percent); perforated left eardrum (0 percent); scar, occipital region (0 percent); right eardrum perforation (0 percent); and bilateral hearing loss (0 percent). The combined rating for his service-connected disabilities was 30 percent for the appeal period. The percentage criteria of § 4.16(a) are not met. August 2020 correspondence from the Veteran’s representative indicated that the Veteran is in receipt of Social Security disability. June 2020 correspondence from SSA indicated that the Veteran’s SSA records were destroyed. A September 2011 VA treatment record reflects that the Veteran was unemployed. The record noted that his prior employment included construction and logging. The Veteran submitted employment information indicating that he was employed as a heavy metal recycling worker. A VA examination dated in June 2014 reflects that the Veteran reported that he was employed until June 2014, when his legs stopped working. The Board finds that the criteria for entitlement to TDIU are not met. The Veteran does not meet the percentage standards for a TDIU set forth in 38 C.F.R. § 4.16 (a). Referral for extraschedular consideration is not warranted, as the Veteran is not shown to be unable to secure and follow a substantially gainful occupation due to service-connected disabilities. While the Veteran listed all of his service-connected disabilities on his TDIU claim, his medical records and testimony indicate that he stopped working due to his peripheral vascular disabilities of his legs, which are not service-connected disabilities. The claim for entitlement to TDIU must be denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.