Citation Nr: 21010360 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-23 859 DATE: February 24, 2021 ORDER A rating in excess of 20 percent for peripheral artery disease of the right lower extremity is denied. A rating in excess of 20 percent for peripheral artery disease of the left lower extremity is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s peripheral artery disease of the right lower extremity has been manifested by an ankle/brachial index (ABI) of 1.1 at worst, without diminished peripheral pulses, claudication on walking short distances tantamount to 25 to 100 yards (or less), trophic changes, persistent coldness of the right leg, ischemic limb pain at rest, or deep ulcers. 2. For the entire appeal period, the Veteran’s peripheral artery disease of the left lower extremity has been manifested by an ABI of 1.2 at worst, without diminished peripheral pulses, claudication on walking short distances tantamount to 25 to 100 yards (or less), trophic changes, persistent coldness of the left leg, ischemic limb pain at rest, or deep ulcers. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for peripheral artery disease of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Code (DC) 7114. 2. The criteria for a rating in excess of 20 percent for peripheral artery disease of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.104, DC 7114. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from August 2007 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, February 2018, and December 2019, the Board remanded the instant claims for additional development, and they now return for further appellate review. Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to a rating in excess of 20 percent for peripheral artery disease of the right lower extremity. 2. Entitlement to a rating in excess of 20 percent for peripheral artery disease of the left lower extremity. For the entire appeal period, the Veteran’s peripheral artery disease of the bilateral lower extremities have been rated as 20 percent disabling. He contends that such disabilities are more severe than as reflected by the currently assigned ratings and, thus, increased ratings are warranted. By way of background, the Board notes that an April 2009 rating decision awarded service connection for such disorders and assigned initial 20 percent ratings, effective September 26, 2008. While the January 2011 rating decision on appeal reduced the ratings assigned for the Veteran’s peripheral artery disease of the bilateral lower extremities from 20 percent to noncompensable, effective April 1, 2011, the 20 percent ratings were reinstated in a June 2015 rating decision pursuant to a May 2015 Board decision. The appeal period before the Board begins on June 8, 2010, the date VA received the June 2010 VA examination report, plus the one-year look-back period. See 38 C.F.R. § 3.157; Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s peripheral artery disease of the bilateral lower extremities are rated as 20 percent disabling pursuant to DC 7114. Under DC 7114, a 20 percent rating is warranted when there is claudication on walking more than 100 yards and diminished peripheral pulses or ABI of 0.9 or less. A 40 percent rating requires 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 ABI of 0.7 or less. A 60 percent rating is assigned if there is claudication on walking less than 25 yards on a level grade at 2 miles per hour and either persistent coldness of the extremity or ABI of 0.5 or less. A 100 percent rating is warranted when there is ischemic limb pain at rest and either ischemic ulcers or ABI index of 0.4 or less. See 38 C.F.R. § 4.104, DC 7114. As an initial matter, the Board notes that the evidence of record contains conflicting medical opinions as to whether the Veteran’s peripheral artery disease of the bilateral lower extremities was misdiagnosed. In this regard, in an October 2011 private treatment record, Dr. MW stated that, when he saw the Veteran, he found no direct evidence of peripheral vascular disease, and he believed the Veteran was misdiagnosed with peripheral vascular disease due to his multitude of symptoms; he noted a diagnosis of definite sural positive rheumatoid arthritis. In contrast, a February 2013 VA examiner found that the Veteran’s diagnosis of peripheral artery disease was less likely than not a misdiagnosis of rheumatoid arthritis. Notably, the examiner determined that there were no symptoms or objective findings documented consistent with a diagnosis of peripheral artery disease from between December 2008 and June 2012. Similarly, a September 2017 specialist examiner stated that she agreed with the February 2013 VA examination report in which the examiner opined that Veteran’s diagnosis of peripheral artery disease was less likely than not a misdiagnosis of rheumatoid arthritis. Significantly, the examiner determined that Dr. MW’s October 2011 report appeared to utilize opinion that was not supported by data (he did identify the titer of the rheumatoid factor he used to establish a diagnosis of rheumatoid arthritis or supply ABI test measurements to quantitatively refuse the diagnosis of peripheral artery disease). Further, a December 2019 VA examiner found that the Veteran’s peripheral artery disease was not likely to be related to his rheumatoid arthritis or mistaken for the said condition. Based on the foregoing, the Board finds that (1) the preponderance of the evidence of record is against a finding that the Veteran was misdiagnosed with peripheral artery disease, and (2) such disorder is separate and distinct from his rheumatoid arthritis. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Board notes that in a July 2020 rating decision, the AOJ awarded service connection for the Veteran’s rheumatoid arthritis of the right foot, left foot, right hand, and left hand. Turning to the pertinent evidence of record, at the June 2010 VA examination, the Veteran described symptoms of claudication after walking 50 to 100 feet on level ground at two miles per hour, calf pain at rest, and persistent coldness of the extremities. However, the examiner determined that the Veteran’s reported symptoms were subjective without objective evidence on which to base a diagnosis. Here, the examiner indicated there was no evidence to support a diagnosis of peripheral artery disease of the right and/or left lower extremities. She noted that the peripheral pulse and doppler study of the lower extremities were normal; and that the Veteran’s subjective symptom of pain with walking was likely due to his plantar fasciitis. Further, examination of the extremities did not reveal atrophic skin changes, ulceration, ischemic limb pain, or persistent coldness. The Veteran’s ABI was 1.1 on the right and 1.2 on the left. The Board acknowledges the Veteran’s representative’s February 2015 argument that the June 2010 VA examination is inadequate for rating purposes; however, find such argument to be without merit. Specifically, he argues that the examiner did not determine whether walking produced diminished peripheral pulses, ABI, or claudication. To the contrary, the examination report includes descriptions of the Veteran’s report of functional impairment and symptoms; as well as objective findings following examination of the Veteran’s lower extremities, to specifically include a peripheral pulse study and his current ABI. Further, the examiner determined that the Veteran’s subjective symptom of pain/claudication with walking was likely due to his plantar fasciitis. Therefore, the Board finds that the Veteran’s representative’s argument is without merit, and the June 2010 VA examination is adequate for rating purposes. An October 2010 private treatment record reflects the Veteran’s complaint of lower leg pain (aching) for the previous two years. Such record further included a notation of peripheral vascular disease. Examination of the Veteran’s extremities revealed that his dorsalis pedis and posterior tibial pulses were present, his feet looked fine; and a monofilament sensory examination was within normal limits. Pursuant to the May 2015 Board remand, the Veteran was scheduled for a VA examination in April 2016 to determine the current nature and severity of his peripheral artery disease of the bilateral lower extremities; however, while he failed to report to the scheduled examination, as noted in the December 2019 Board remand, a review of the record revealed no evidence of notification or correspondence that was sent to him informing him of such. Accordingly, the Veteran was scheduled for an additional VA examination in August 2020, and he appeared for the scheduled examination. However, the examiner reported that she was not able to complete the vascular disability benefits questionnaire. Here, she stated that multiple attempts were made to do the examination; however, the Veteran was very upset upon arrival as he said he should be having a knee examination, not a vascular examination. The examiner further stated that she tried many times to redirect the Veteran to attempt to do the examination, but the Veteran would not allow it. The Board acknowledges the Veteran’s representative’s December 2020 argument that because the Veteran refused to be examined, the August 2020 VA examination was inadequate and did not accurately reflect his current symptoms; however, find such argument to be without merit. In this regard, the Board notes that failure to cooperate during VA examinations “subject[s claimants] to the risk of an adverse adjudication based on an incomplete and underdeveloped record,” Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). The Board further notes that, absent a showing of good cause, a Veteran’s refusal to participate or cooperate during a VA examination is akin to a failure to report for VA examination for purposes of VA regulations under 38 C.F.R. § 3.655. Here, under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). To date, the Veteran has not presented good cause for his refusal to participate or cooperate or expressed a willingness to do so at a later examination. Therefore, the Board finds that the Veteran’s representative’s argument is without merit. Consequently, any evidence expected to be obtained in connection with the August 2020 VA examination cannot be considered in the adjudication of the claims. Based on the foregoing, the Board finds that the Veteran’s symptomatology of record is adequately compensated by the currently assigned 20 percent ratings for his peripheral artery disease of the bilateral lower extremities. In the present case, the Veteran’s ABI has been shown to be 1.1 on the right and 1.2 on the left, at worst; and there is no evidence of diminished peripheral pulses, claudication on walking short distances tantamount to 25 to 100 yards (or less), trophic changes, persistent coldness of the legs, ischemic limb pain at rest, or deep ulcers attributable to his peripheral artery disease. 38 C.F.R. § 4.104, DC 7114. Thus, there is no basis to assign a rating higher than 20 percent for the entire appeal period. In reaching the foregoing determination, the Board recognizes the Veteran’s sincerely held belief that his peripheral artery disease of the bilateral lower extremities is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is no competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disorders. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected peripheral artery disease of the bilateral lower extremities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased ratings claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus, the Board finds that ratings in excess of 20 percent for the Veteran’s peripheral artery disease of the bilateral lower extremities is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against his claims, that doctrine is not applicable in the instant appeal, and his increased rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.