Citation Nr: 21011906 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-27 362 DATE: March 3, 2021 ORDER Entitlement to a rating in excess of 20 percent for thrombophlebitis of the left lower extremity (claimed as pain and swelling) is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s thrombophlebitis of the left lower extremity is manifested by aching and fatigue with prolonged standing or walking, beginning eczema and persistent edema that is incompletely relieved by elevating the extremity. 2. The Veteran’s service-connected disabilities do not render him unemployable. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for thrombophlebitis of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Codes 7199-7121. 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1987 to September 1992. In March 2018 and May 2020, the Board remanded the case for further development, which is completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2018, the Veteran testified at a Board hearing. The transcript is of record. 1. Entitlement to a rating in excess of 20 percent for thrombophlebitis of the left lower extremity In April 2012 the Veteran filed a claim requesting an increased rating due to a worsening of symptoms for thrombophlebitis (leg condition). He contends that his symptoms warrant at least a 40 percent rating due to his difficulties with prolonged walking, standing, swelling and frequent infections. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran’s leg condition is rated under DCs 7199-7121. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. While DC 7121 refers to post-phlebitic syndrome, the Board finds this code to be most appropriate. Under DC 7121, a 100 percent rating is assigned for massive board-like edema with constant pain at rest; a 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; a 40 percent evaluation is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; a 20 percent evaluation is assigned for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. 38 C.F.R. § 4.104, DC 7121. The Veteran attended a VA examination in August 2012. The examiner reported aching and fatigue in the leg after prolonged standing or walking and persistent edema that is incompletely relieved by elevation of extremity. His left ankle brachial index was less than 0.89. The Veteran did not require assistive devices for locomotion and his left leg condition did not impact his ability to work. In June 2016 the Veteran underwent another VA examination and reported pain after prolonged walking. The examiner again noted aching and fatigue after prolonged standing or walking and persistent edema. The examiner cited to the 2011 ultrasound of the leg, which yielded negative results. The Veteran went to another VA examination in September 2019 and stated that his leg condition caused a tightness in his heels and pain below his knee. He disclosed that he resigned from his job in August 2019 due to pain and was unemployed. The examiner noted varicose veins, aching in leg after prolonged standing or walking, and persistent edema. The examiner cited past findings of a left ankle brachial index of less than 0.89 with an impression of no hemodynamically significant obstructive vascular disease. Functionally, the Veteran’s condition negatively impacted ambulatory work of prolonged standing, walking, stair climbing, descending and walking on uneven or rough surfaces but did not affect sedentary work. The examiner acknowledged the Veteran’s self-reported bilateral achilles tendinitis and explained that if there was an official diagnosis it would not represent a progression of thrombophlebitis. In November 2019 the Veteran attended another VA examination and again reported that he quit his job due to pain and described foot pain and swelling. The Board notes that the examiner utilized the disability benefits questionnaire for a knee impairment instead of the applicable form for artery and vein conditions. The examiner noted less movement than normal, weakened movement, pain on movement, swelling, deformity, instability of station, disturbance of locomotion and interference with standing. Despite reporting that the knee is not affected, the examiner reported a history of slight joint instability, muscle atrophy and a history of recurrent effusion. Functionally, the Veteran had difficulty with walking and standing. The Board notes that these findings have limited probative value as the examiner conducted an examination based on the criteria for a musculoskeletal issue related to the knee, which is not the issue at hand. The Veteran underwent another VA examination in August 2020 as the prior examination did not adequately address his symptoms related to his leg condition. He reported pain, numbness and swelling with treatment consisting of compression stockings. The examiner found aching and fatigue in the leg after prolonged standing or walking that is relieved by elevation of the extremity and compression hosiery. Additionally, the Veteran displayed the beginning of eczema and persistent edema that is incompletely relieved by elevation of extremity. The Veteran did not require use of an assistive device for locomotion. Functionally, the examiner noted that the Veteran is employed but requires frequent rest periods due to the pain and discomfort as a result of his left leg swelling and numbness. Review of the clinical records reveals minimal complaints or treatments for the Veteran’s left leg condition. In April 2011 the Veteran went to the emergency department for pain and swelling in the left leg. An ultrasound provided negative results and he received a diagnosis of severe cellulitis. A January 2013 appointment noted peripheral edema of the left lower leg and foot. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran testified at a Board hearing in February 2018 and stated that his symptoms worsened since the June 2016 examination, which he described as very brief. He reported symptoms of pain, leg swelling that increases with activity and is relieved by rest, numbness and pale skin. The Veteran also reported he experienced pitting edema and leg stiffness. The Board notes that the Veteran alluded to private treatment at his September 2019 VA examination but did not provide any identifying information. A correspondence dated June 11, 2020 requested that the Veteran identify all treatment from private healthcare providers for his left lower extremity pain and swelling on the provided forms; however, the Veteran did not provide the requested information. As such, the Board finds the duty to assist is met. See Sullivan v. McDonald, 815 F.3d 786, 790 (Fed. Cir. 2016). The rating criteria for the next highest rating of 40 percent is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. The evidence establishes that the Veteran’s left leg condition is manifested by pain, aching and fatigue with prolonged standing or walking, beginning eczema and persistent edema that is incompletely relieved by elevating the extremity. These symptoms are most consistent with the Veteran’s current rating of 20 percent which contemplates persistent edema incompletely relieved by elevation of the extremity, with or without beginning stasis or eczema. The Board considered the Veteran’s allegations regarding the severity of his symptoms. While the Veteran is competent to provide testimony as to the presence of his observable symptoms, the record indicates some inconsistency in reporting. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Specifically, the Veteran alleged quitting his job due to leg pain at the September and November 2019 examinations; however, as discussed in greater detail below, the evidence indicates employment either in the same, or at least a similar position (auto sales) in October 2019. Thus, the Veteran’s report calls into question the reliability of his statements offered in support of his claim for benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence and conflicting statements of the veteran in weighting credibility). Regarding the allegation of experiencing pitting edema the Board finds that if such symptomology was present a health care professional would have noted this and/or the Veteran would have reported the presence of such symptoms. He only reported the presence of pitting edema at the hearing. The Board finds this allegation is undercut by the other evidence of record which is totally silent as to the presence of these symptoms. The Board places greater probative weight on the objective evidence which is silent as to the presence of pitting edema. As such, the Board affords greater weight to the findings of the VA examiners. Accordingly, the claim for a rating in excess of 20 percent is denied. 2. TDIU TDIU 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 as a result of a single service-connected disability or as a result of two or more disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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 the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, but evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board must specifically adjudicate whether to remand a case for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU. Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In order to prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran alleges that his service-connected left lower extremity pain and swelling prevents him from securing and following a substantially gainful occupation. Prior to July 19, 2017 the Veteran does not meet the threshold requirements for entitlement to TDIU on a schedular basis as he only had a combined rating of 40 percent with left lower extremity pain and swelling at 20 percent, right maxillary sinusitis at 10 percent and keloid lesions and scars and umbilical hernia at zero percent. However, the Veteran’s combined rating increased to 70 percent due to the grant of service connection for unspecified depressive disorder at 50 percent effective July 19, 2017; thus, meeting schedular requirements. Nevertheless, the Veteran is not entitled to a TDIU on either a schedular or extraschedular basis. See 38 C.F.R. § 4.16 (a). The Board notes this case was remanded in May 2020 for further development as the Veteran had not completed a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran received a notification dated September 2, 2020 requesting that the application be competed and returned. To date, the Veteran has not provided the requested VA Form 21-8940. As the Veteran has not provided a VA Form 21-8940 with the details of his educational and employment background, the Board will proceed based on available evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims). At a March 2018 VA examination for mental disorders the Veteran disclosed an education level of one year of college and an employment history that included sales at a car dealership for the past four years, security for three years and sales at Verizon for four years. Thus, the evidence indicates that the Veteran has maintained employment from 2012. At the September 2019 VA examination the Veteran stated that he resigned from his job due to his chronic leg pain and was unemployed as he was unable to find a job that did not require lots of standing and walking. However, the VA 21-4192 Request for Employment Information reveals full-time employment in automotive sales effective October 29, 2019 with the ending date annotated as not applicable; thus, indicating continued employment. The form also annotated not applicable for time lost during the last 12 months due to disability and for concession made by reason of age or disability. In addition, the Veteran provided an earnings statement dated September 2020 from Economy Honda Superstore, which revealed gross earnings year to date of $38,256.78. Several VA examiners, as discussed above, noted functional limitations that included difficulty with prolonged standing and walking; however, the September 2019 examiner found sedentary work to be unaffected and the August 2020 examiner provided an individual unemployability statement indicating that the Veteran is capable of light work. Therefore, the evidence does suggest that the Veteran’s service-connected leg condition does cause some difficulty with occupational tasks. However, and most significantly, the evidence indicates that the Veteran maintained employment during the appeal period. The Veteran reported employment in auto sales for the past four years at the March 2018 examination, while he reported quitting his job in September 2019 the available evidence reveals employment in auto sales again with a start date of October 2019. As such, the available evidence regarding the Veteran’s former and current employment calls into question the credibility of his allegation of being unable to work due to his service-connected left leg condition. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record). Therefore, the Board finds that the evidence does not support a finding that the Veteran’s service-connected conditions prevented him from obtaining or sustaining any kind of employment. The claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.