Citation Nr: 21031776 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 08-35 715 DATE: May 24, 2021 ORDER Entitlement to an initial 40 percent rating prior to November 18, 2011 for peripheral arterial disease (PAD) of the right extremity is granted. [The applicable diagnostic code (DC) has been changed to 7111]. Entitlement to an initial 40 percent rating prior to November 18, 2011 for PAD of the left extremity is granted. [The applicable DC has been changed to 7111]. Entitlement to an initial compensable rating for PAD after November 18, 2011 is denied. [The applicable DC has been changed to 7111]. FINDINGS OF FACTS 1. Resolving reasonable doubt in the Appellant's favor, the Veteran's PAD affecting the right extremity was manifested by claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes, such as dystrophic toenails prior to November 18, 2011. 2. Resolving reasonable doubt in the Appellant's favor, the Veteran's PAD affecting the left extremity was manifested by claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour and trophic changes, such as dystrophic toenails prior to November 18, 2011. 3. After November 18, 2011, the Veteran's PAD symptoms are contemplated by the disability ratings assigned for his peripheral vascular disease (PVD) of the bilateral legs. CONCLUSIONS OF LAW 1. Prior to November 18, 2011, the criteria for an initial 40 percent rating for PAD affecting right lower extremity is met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.104, DC 7111. 2. Prior to November 18, 2011, the criteria for an initial 40 percent rating for PAD affecting left lower extremity is met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.104, DC 7111. 3. The criteria for separate ratings for PAD from November 18, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14, 4.1, 4.104, DC 7111. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to August 1966. He died in April 2018 and the Appellant is his surviving spouse, who has been substituted for the purposes of this appeal. This matter was appealed from a June 2007 rating decision, where the Agency of Original Jurisdiction (AOJ) granted service connection for PAD and assigned a noncompensable rating. The Veteran disagreed with the rating assigned. The claims were appealed to the Board of Veteran's Appeals (Board), which denied a compensable rating by way of a November 2015 decision. The Veteran appealed the claims to the United States Court of Appeals for Veterans Claims, which granted a Joint Motion for Partial Remand in June 2016. The claims were returned to the Board and remanded to the AOJ for further development twice in December 2016 and August 2019. 1. Entitlement to an initial 40 percent rating prior to November 18, 2011 for PAD of the right extremity is granted. 2. Entitlement to an initial 40 percent rating prior to November 18, 2011 for PAD of the left extremity is granted. As noted above, in June 2007, the AOJ granted service connection for PAD and assigned a noncompensable rating under DC 7112, effective May 2006. DC 7112 is applicable to aneurysm of any small artery. Review of the medical evidence of record, particularly, VA examinations from December 2011, September 2013, and January 2016 all show that the Veteran had aneurysm of any large artery. Accordingly, the Board finds that DC 7111, which is applicable to aneurysm of any large artery is the appropriate DC. The change in the applicable DC does not constitute a severance of the service-connected disability. Rather, DC 7111 more accurately captures the Veteran's service-connected symptoms. Under DC 7111, claudication on walking more than 100 yards and diminished peripheral pulses or ankle/brachial index of 0.9 or less is rated 20 percent. 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 is rated 40 percent. Claudication on walking less than 25 yards on a level grade at 2 miles per hour and persistent coldness of the extremity, one or more deep ischemic ulcers, or ankle/brachial index of 0.5 or less is rated 60 percent. 38 C.F.R. § 4.104. Note (2) provides that if more than one extremity is affected, each affected extremity is to be evaluated separately and combined using bilateral factor, if applicable. The criteria under DC 7111 are conjunctive, not disjunctive. Thus, all criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all the conditions listed in the provision must be met). In this case, resolving reasonable doubt in the Appellant's favor, a 40 percent rating, but no higher, for each of the right and left extremities is warranted for the appeal period prior to November 18, 2011. In reaching this conclusion, the Board recognizes that the record does not have medical evidence from the appeal period prior to November 18, 2011 addressing all the tests that are part of the rating criteria under DC 7111. Nor is there clear evidence that shows that the severity of the Veteran's condition significantly changed throughout the appeal period. Under these circumstances, the Board has opted to afford the Appellant the benefit of the doubt and find that the VA examinations conducted after November 18, 2011 also reflect the severity of the Veteran's condition prior to November 18, 2011. To that end, the Veteran for the first time underwent VA artery and vein conditions examination in December 2011, where it was noted that he had claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour that affects both extremities. In September 2013, it was found that the Veteran had claudication on walking more than 100 yards and both extremities were affected. These two examinations, however, did not include testing for diminished peripheral pulses or an ankle /brachial index. In fact, a January 2016 VA examination is the first time the record reflects testing for diminished peripheral pulses or an ankle/brachial index. That examination found claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour that affects both extremities, diminished peripheral pulse, 1 right ankle/brachial index, and 0.8 left ankle/brachial index. VA treatment records from January and February 2010, as well as October 2011 reflect that the Veteran had dystrophic toenails. Thus, when viewed holistically, the medical evidence of record reflects that the Veteran's PAD affected both extremities, and it caused claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, as well as trophic changes, such as dystrophic toenails. Therefore, reviewing the evidence in light most favorable to the Appellant and affording her the benefit of the doubt, the Board finds that the severity of the Veteran's PAD in both the right and left extremities approximated a level contemplated by a 40 percent rating under DC 7111 for each extremity. However, there is no evidence that the Veteran had claudication on walking less than 25 yards on a level grade at 2 miles per hour, and persistent coldness, one or more deep ischemic ulcers, or ankle/brachial index of 0.5 or less to warrant a 60 percent rating. In sum, reviewing the evidence in light most favorable to the Appellant and affording her the benefit of the doubt, the Board awards a 40 percent rating for PAD of the right extremity, and a 40 percent rating for PAD of the left extremity. 3. Entitlement to separate ratings for PAD from November 18, 2011 is denied. Beginning November 18, 2011, the Board finds that the Veteran's symptoms were fully contemplated by the 20 percent and 40 percent ratings assigned to the right and left leg peripheral vascular disease (PVD), respectively. A March 2020 Board decision denied higher ratings for PVD. That decision was not appealed and is final. The appellant has not asserted or argued that ratings higher than 20 percent and 40 percent are warranted for PAD of the right and left lower extremities, respectively, from November 18, 2011. While VA's rating schedule recognizes that a single disability may result from more than one distinct injury or disease, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14. The critical element in permitting the assignment of several evaluations under various DCs is that none of the symptomatology for any one of the disorders is duplicative or overlapping with the symptomatology of the other disorder. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, the Veteran's right and left leg PVD were assigned 20 percent and 40 percent ratings under DC 7114, respectively. The rating criteria under DC 7114 and 7111 are identical. Accordingly, the rating assigned to the Veteran's PVD contemplates claudication on walking, diminished peripheral pulses or an ankle /brachial index, and trophic changes. Assigning a separate disability rating under DC 7111 for the identical symptoms and labeling them due to PAD would result in pyramiding. Therefore, the Board denies separate ratings for PAD from November 18, 2011. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.