Citation Nr: 21031286 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 13-16 357 DATE: May 21, 2021 ORDER Entitlement to an initial rating in excess of 60 percent for peripheral vascular disease of the left lower extremity is denied. Entitlement to an initial rating in excess of 60 percent for peripheral vascular disease of the right lower extremity is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due solely to service-connected peripheral vascular disease of the right lower extremity, effective August 31, 2009, is granted. Entitlement to special monthly compensation (SMC) at the housebound rate (other than the period from August 17, 2010 to March 1, 2011), effective August 31, 2009, is granted. REMANDED Entitlement to SMC based on the need for aid and attendance of another person is remanded. FINDINGS OF FACT 1. From the date of award of service connection, the Veteran's peripheral vascular disease of the left lower extremity has not been productive of ischemic limb pain at rest, and: either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 2. From the date of award of service connection, the Veteran's peripheral vascular disease of the right lower extremity has not been productive of ischemic limb pain at rest, and: either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 3. From the date of award of service connection for peripheral vascular disease of the right lower extremity, when resolving the benefit of the doubt in favor of the Veteran, his service-connected peripheral vascular disease of the right lower extremity renders him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. 4. From the date of award of service connection for peripheral vascular disease of the right lower extremity, the Veteran is now in receipt of TDIU based solely on his service-connected peripheral vascular disease of the right lower extremity, and he has additional service-connected disabilities independently rated at 60 percent disabling or more. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 60 percent for peripheral vascular disease of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7114. 2. The criteria for an initial disability rating in excess of 60 percent for peripheral vascular disease of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7114. 3. The criteria for TDIU based solely on peripheral vascular disease of the right lower extremity have been met, effective August 31, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. The criteria for SMC at the housebound rate (other than period from August 17, 2010 to March 1, 2011) have been met, effective August 31, 2009. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1967 to June 1969. Most recently, in July 2020, the Board remanded this matter for a VA examination, which was done in October 2020. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). With respect to the issue of entitlement to SMC at the housebound rate, the Veteran has already been awarded SMC at this rate from August 17, 2010 to March 1, 2011. As such, this issue is rendered moot during this period. Entitlement to initial ratings in excess of 60 percent for peripheral vascular disease of the left lower extremity and right lower extremity The Veteran is seeking initial higher ratings for his peripheral vascular disease of the left and right lower extremities. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126 The Veteran's peripheral vascular disease has been rated under Diagnostic Code 7114 for arteriosclerosis obliterans. Under this code, a maximum 100 percent evaluation is awarded for ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.104, Diagnostic Code 7114. A note to this diagnostic code provides that the evaluations under 7114 are for the involvement of a single extremity and that, if more than one extremity is affected, each extremity is to be separately evaluated and combined using the appropriate regulations. Id. n. 3. The question before the Board is whether the evidence of record meets the criteria for a 100 percent disability rating: ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of.04 or less. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7114. Based on the evidence of record, the Board concludes that the criteria for the next higher disability rating are not met. As the December 2018 VA examiner failed to address the criteria for a higher rating, this case was most recently remanded to specifically determine whether the Veteran suffered from ischemic limb pain at rest to warrant the maximum 100 percent rating. Significantly, after reviewing the record and examining the Veteran, the October 2020 VA examiner clearly found that there was no reported, claimed or documented ischemic limb pain at rest. The examiner also noted that the Veteran thoroughly denied such symptoms. Importantly, the prior March 2015 and August 2013 VA examiners also found no ischemic limb pain at rest. Consequently, the Board finds that disability ratings in excess of 60 percent are not warranted. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his peripheral vascular disease. The Board acknowledges that the Veteran, in advancing this appeal, believe that the disabilities on appeal have been more severe than the assigned disability ratings reflect. Moreover, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Again, at the most recent VA examination, the Veteran expressly denied ischemic limb pain at rest. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's peripheral vascular disease; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for initial ratings in excess of 60 percent for his peripheral vascular disease of the left and right lower extremities. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a TDIU Although the Veteran is already in receipt of a combined schedular rating of 100 percent throughout the period on appeal, the issue of entitlement to a TDIU is still on appeal. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (the receipt of a 100 percent schedular rating does not necessarily render moot a claim for TDIU, as a separate award of TDIU predicated on another single disability may serve as the basis for an award of SMC). VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16 (a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Throughout the appeal period, the Veteran's service-connected peripheral vascular disease of the right lower extremity has been rated as 60 percent disabling. Therefore, the schedular criteria for entitlement to TDIU based on this disability alone have been met. Based on review of the record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds the Veteran's service-connected peripheral vascular disease renders him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. The evidence of record shows that the Veteran last worked in May 2009 as a truck driver. He has a high school education. Importantly, the October 2020 VA examiner found that the Veteran's peripheral vascular disease did impact his ability to work. The Veteran could not walk more than 50 feet at a time. He was unable to run, jog, exercise, or do household chores. He also could not do any yard work at all. The Veteran was only able to stand for 3-5 minutes and had very limited driving. He cannot have his legs elevated at all and experienced near constant cramping in his legs. He also had very limited sensation in the feet and lower legs due to peripheral vascular disease. The Veteran required assistance to get pants and socks on and his spouse also assisted with bathing. Prior VA examinations in March 2015 and August 2013 also showed that the Veteran's vascular condition impacted his ability to work. The March 2015 examiner noted that claudication limited mobility. Further, the August 2013 examiner indicated that the Veteran's ability to work was limited due to decreased capacity for walking without pain. In sum, when considering the totality of the functional impairment caused by his service-connected peripheral vascular disease as described by the medical evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, the Veteran would be precluded from substantially gainful employment due to his service-connected peripheral vascular disease of the right lower extremity. The Board recognizes that the VA examiners were discussing both lower extremities; however, it is clear from the description that the functional impairment described can also be attributed solely to the right lower extremity. The Board finds that the functional impairment caused by this peripheral vascular disease of the right lower extremity has been consistent since the award of service connection, August 31, 2009. In conclusion, based on the analysis above, the Board finds that a TDIU based solely on peripheral vascular disease of the right lower extremity is warranted, effective August 31, 2009. 38 U.S.C. § 5107 (b). The Board recognizes that a TDIU based solely on the Veteran's left lower extremity peripheral vascular disease is also arguably warranted. However, as discussed further below, the Veteran has been granted herein an award of SMC based on a total schedular rating for peripheral vascular disease of the right lower extremity and additional service-connected disabilities independently ratable at 60 percent or more. As the Veteran has already been awarded SMC throughout the appeal period, there is no longer a need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C. § 1114 (s). In turn, the holding in Bradley is no longer applicable in this case. Therefore, any additional TDIU claim is rendered moot. Entitlement to SMC SMC may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). An award of TDIU predicated solely on one disability qualifies as a single service-connected disability rated as total for purposes of establishing entitlement to SMC. See Bradley, 22 Vet. App. at 293. With the grant of TDIU based solely on peripheral vascular disease of the right lower extremity, the Veteran meets the statutory requirements for entitlement to SMC at the housebound rate. Throughout the course of the appeal from August 31, 2009, service connection has also been in effect for peripheral vascular disease of the left lower extremity, rated as 60 percent disabling; diabetes mellitus type II, rated as 20 percent disabling, peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; and peripheral neuropathy of the right lower extremity, rated as 20 percent disabling. From August 31, 2009, the combined rating for the Veteran's service-connected disabilities other than peripheral vascular disease of the right lower extremity was at least 60 percent. See 38 C.F.R. § 4.25. As the criteria for SMC under the provisions of 38 U.S.C. § 1114 (s) have been met throughout the appeal period, SMC at the housebound rate is granted, effective August 31, 2009. Again, the Veteran has already been awarded this rate during the period from August 17, 2010 to March 1, 2011 so this matter is rendered moot during this period. REASONS FOR REMAND Entitlement to SMC based on the need for aid and attendance of another person is remanded. In light of the October 2020 VA examiner's statements indicating that the Veteran requires assistance dressing and bathing, the Board finds that the issue of entitlement to SMC based on the need of aid and attendance of another person has been raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim). Accordingly, the Board finds the agency of original jurisdiction should undertake any necessary development of this matter, including obtaining a VA examination, to determine whether the Veteran needs regular aid and attendance of another person due to his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain additional VA clinical records dated from October 2020 to the present. 2. Take any other appropriate development necessary concerning the matter of entitlement to SMC based on the need of aid and attendance of another person, to include scheduling the Veteran for an appropriate VA medical examination to determine the need for special monthly compensation based on the need for regular aid and attendance due to his service-connected disabilities. The examiner must review the claims file. The examiner must opine whether the Veteran has a permanent need for regular aid and attendance due to his service-connected disabilities. The examiner should determine whether, as a result of the service connected disabilities, the Veteran requires assistance on a regular basis to: dress or undress himself, or keep himself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed himself due to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect himself from the hazards or dangers incident to his daily environment. All functional impairments caused by the service-connected disorders should be reported. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.