Citation Nr: 21031834 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-13 043 DATE: May 24, 2021 ORDER Entitlement to an evaluation in excess of 40 percent for thrombophlebitis of the right leg prior to August 30, 2019, is denied. Entitlement to an increased 60 percent (but no higher) evaluation for thrombophlebitis of the right leg from August 30, 2019, is granted, subject to the regulations governing payment of monetary awards. Entitlement to service connection for thrombophlebitis of the left leg, secondary to thrombophlebitis of the right leg, is granted. REMANDED Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period prior to August 30, 2019, the Veteran's thrombophlebitis of the right leg was manifested by persistent edema, stasis pigmentation, eczema, subcutaneous induration and constant pain at rest; persistent ulceration or massive board-like edema was not shown. 2. For the appeal period from August 30, 2019, the Veteran's thrombophlebitis of the right leg was manifested by claudication on walking less than 25 yards on a level grade at 2 miles per hour and a mottled right foot with cyanotic toes and loss of feeling; thereby, approximating persistent coldness of the right foot. There was no persistent ulceration and, although he had constant pain at rest and ischemic limb pain at rest; massive board-like edema, deep ischemic ulcers or ankle/brachial index of 0.4 or less was not shown. 3. The Veteran's service-connected thrombophlebitis of the right leg has progressed to include thrombophlebitis of the left leg. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for right leg thrombophlebitis prior to August 30, 2019 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code (Code) 7121. 2. The criteria for an increased 60 percent rating (and no higher) for right leg thrombophlebitis from August 30, 2019 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.104, Code 7114. 3. The criteria for service connection for thrombophlebitis of the left leg, secondary to thrombophlebitis of the right leg, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1963 to February 1969. In March 2019, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board sent the Veteran a June 2020 letter in error notifying him that he had been scheduled for a Board hearing in August 2020 (and VA tried unsuccessfully to contact the Veteran regarding this hearing in August 2020), but this hearing was not held. As the Veteran testified at the March 2019 Board hearing regarding the matters addressed herein and the Veteran had not requested a subsequent hearing, the Board will proceed based on the evidence of record. This matter was previously before the Board in May 2020, when it was remanded for additional development. The May 2020 Board remand included the matters of service connection for disorders of each knee, which were granted in a March 2021 rating decision. As this rating decision represents a complete grant of the claims for service connection for disorders of each knee, the appeal as to these claims has been resolved and they are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Regarding the right leg thrombophlebitis increased rating claim, after review of the development accomplished by the Agency of Original Jurisdiction (AOJ), the Board concludes there has been substantial compliance with the May 2020 Board remand. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). A March 2013 Formal Finding on the Unavailability of Federal Records includes the determination that complete original Social Security Administration (SSA) records are unavailable for review. It was stated that all procedures to obtain SSA records had been correctly followed, all efforts to obtain the needed information have been exhausted and further attempts are futile. Notably, a November 2012 response from SSA shows that the requested records could not be sent because they had been destroyed. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. Accordingly, the claims addressed herein will be evaluated based on the evidence of record. A February 2021 VA Artery and Vein Conditions examination report notes that the Veteran's thrombophlebitis of the right leg has progressed and he now has bilateral thrombophlebitis. In Bailey v. Wilkie, 33 Vet. App. 188 (2021), the United States Court of Appeals for Veterans Claims (Court) held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Accordingly, the claim of entitlement to an increased rating for thrombophlebitis of the right leg has been expanded to include the claim of service connection for thrombophlebitis of the left leg under the theory of secondary service connection, and has been characterized as stated on the title pate. See also, Roberson v. Principi, 251 F. 3d 1378, 1384 (2001) ("VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations."). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must consider the evidence of disability during the period one year prior to the application. Hazan v. Gober, 10 Vet. App. 511 (1997). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. 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 or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board observes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Throughout the appeal period since receipt of the Veteran's March 8, 2012 claim for increase, his right leg thrombophlebitis with history of pulmonary emboli and pulmonary infarction has been rated 40 percent under 38 C.F.R. § 4.104, Code 7121. As explained below, the Board finds a rating in excess of 40 percent prior to August 30, 2019 for right leg thrombophlebitis is not warranted; however, the schedular criteria for an increased 60 percent rating (but no higher) under Code 7114 (for arteriosclerosis obliterans) from August 30, 2019 have been met. 1. Thrombophlebitis of the Right Leg Prior to August 30, 2019 Under Code 7121, which addresses post-phlebitic syndrome, a 40 percent rating is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is assigned if there is massive board-like edema with constant pain at rest. These evaluations are for involvement of a single extremity. If more than one extremity is involved, each extremity is to be evaluated separately and combined. In order to warrant the increased 60 percent rating, the evidence must demonstrate that the Veteran's right leg thrombophlebitis has also been productive of persistent ulceration (or, alternatively, massive board-like edema with constant pain at rest, to warrant the 100 percent rating). See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that where the rating criteria are worded in the conjunctive with the use of the word "and," each of the specified criteria must be present to warrant the specified percentage requirements). As discussed below, persistent ulceration or a massive board like edema are not shown at any time during the appeal period so as to warrant an evaluation in excess of the currently assigned 40 percent rating. After a full review of the record, and as discussed below, the Board concludes that a rating in excess of 40 percent for right leg thrombophlebitis prior to August 30, 2019 is not warranted. A September 2012 VA artery and vein conditions examination report shows the Veteran's post-phlebitic syndrome symptoms were aching and fatigue in the right leg after prolonged standing or walking (the symptoms were relieved by elevation of the extremity), persistent stasis pigmentation or eczema, persistent edema and persistent subcutaneous induration. It is noted that the Veteran regularly used a brace and a cane as a normal mode of locomotion (for the knees). The functional impact was that the Veteran's post-phlebitic syndrome with statis and edema of the right leg prevented any prolonged standing or walking. The examiner subsequently reviewed the Veteran's claims file in March 2013 and indicated that no changes to the September 2012 examination report were necessary. An August 2015 VA artery and vein conditions examination report notes right lower extremity varicose veins and post-phlebitic syndrome manifested by aching and fatigue after prolonged standing and walking, beginning eczema, persistent stasis pigmentation, persistent edema incompletely relieved by elevation of the extremity, persistent subcutaneous induration and constant pain at rest. He continued to regularly use a brace and a cane due to his knee disorders. The functional impact was "no prolonged standing or walking." During his March 2019 Board hearing, the Veteran testified that every time he bumps his leg, he gets "a hole in it." In a March 2019 statement, the wife of the Veteran's representative, an APRN (Advanced Practice Registered Nurse), stated that, after review of the Veteran's service and civilian medical records, she noted he experiences pain, persistent edema, leg heaviness, itching, cramping, subcutaneous induration and "brawny hemosiderin staining" in the lower leg. Although VA treatment records include "ulcer of lower extremity" on the Veteran's Current Problem list, with the exception of the March 2014 injury and resulting ulcer, the treatment records throughout the appeal period are silent as to complaints of or treatment for persistent ulceration. A September 2012 VA treatment report shows findings of edema and notes compression stockings had been ordered. VA treatment records include a March 2014 note that the Veteran was injured when his leg was hit by a rock thrown up by the rear discharge of the mower. He had a 1.5 centimeter "shallow ulcer" to the fascia of the anterior right leg and "2+ edema right leg (chronic) +ttp focally only some venous stasis changes but no signs of infection." After a review of all the available evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that an evaluation in excess of 40 percent for the Veteran's right leg thrombophlebitis prior to August 30, 2019 is not warranted. While the evidence shows symptoms of aching and fatigue after prolonged standing and walking, beginning eczema, persistent stasis pigmentation, persistent edema incompletely relieved by elevation of the extremity, persistent subcutaneous induration and constant pain at rest and these symptoms are part of the criteria required for higher ratings; the evidence is silent as to findings of persistent ulceration which is required for the higher 60 percent rating and massive Board-like edema which is required for the higher 100 percent rating. The Board reiterates that the rating criteria are worded in the conjunctive with the use of the word "and." Thus, to establish entitlement to a higher rating, the Veteran must have all of the symptoms listed for the rating criteria. See Camacho, 21 Vet. App. 360; see also 38 C.F.R. § 4.104, Code 7121. In fact, the Federal Circuit has held that if disability rating criteria are written in the conjunctive, "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation" and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Notably, although March 2014 treatment records show the Veteran had a 1.5 centimeter "shallow ulcer" to the fascia of the anterior right leg; this ulcer was attributed to injury sustained when a rock thrown by a mower hit the Veteran's leg. Review of the record shows no other treatment for right leg ulcers that would warrant a higher rating and this single right leg ulcer was not attributed to the Veteran's right leg thrombophlebitis. As there is no evidence of persistent ulceration, as required, a rating in excess of 40 percent prior to August 30, 2019 is not warranted. 2. Thrombophlebitis of the Right Leg from August 30, 2019 VA treatment records include an August 30, 2019 note that the Veteran had fallen the prior week (earlier records show he fell while getting out of his truck) and he reported "he falls several times a month." These records include a January 2020 finding of right foot "decreased protective sensation" and a March 2021 report from the Veteran's wife that "he falls often because of his ataxia (from numbness in his feet." A February 2021 VA artery and vein conditions examination report shows diagnoses of thrombophlebitis and peripheral vascular disease. The Veteran's wife reported his symptoms are so bad "he can hardly get up on his feet and he falls often," he is in constant pain, has "no feeling in the right foot," and gets a "big sore that take a long time to heal" if he hits his leg on something ("up to 3 weeks for a wound to heal.") She stated she has to do everything for him help him bathe, dress, with toileting and cleaning up any accidents when he does not make it to the bathroom. On examination, the Veteran had bilateral varicose veins and post-phlebitic syndrome productive of aching and fatigue after prolonged standing and walking, beginning and persistent stasis pigmentation and intermittent edema. He also had right lower extremity intermittent ulceration and constant pain at rest. The severity of the signs and symptoms were indicated as bilateral claudication on walking less than 25 yards on a level grade at 2 miles per hour and right diminished peripheral pulses, ischemic limb pain at rest and trophic changes (thin skin, absence of hair and dystrophic nails.) The examiner noted constant use of a walker ("to get around at home and in and out of a vehicle because he can't feel his right foot due to his vascular issues") and regular use of a wheelchair ("if he has to go out of the house such as to medical appointments). The examiner also noted an additional pertinent physical finding of "skin breakdown or possibly loss of the 4th toe on the right." This was described as "a small area on the toe that is starting to turn black" and the Veteran was referred to his primary care provider for further evaluation as soon as possible. The Veteran's skin on the right lower leg was "dry, flaky, with chronic pigmentation changes down to the ankles," the right foot was "mottled" and the toes were "slightly cyanotic." Ankle/brachial index testing was 1.13 on the right and 1.10 on the left. Although there is no evidence of persistent ulceration, as required, for a rating in excess of 40 percent under Code 7121, the evidence from August 30, 2019 shows the Veteran had frequent falls as a result of right foot numbness ("he can't feel his right foot due to his vascular issues") and the severity of his right leg symptoms was described on February 2021 VA examination as claudication on walking less than 25 yards on a level grade at 2 miles per hour, diminished peripheral pulses, ischemic limb pain at rest and trophic changes (thin skin, absence of hair and dystrophic nails). As such, the Board finds the Veteran's right leg thrombophlebitis is more accurately evaluated as 60 percent disabling under the Diagnostic Criteria for arteriosclerosis obliterans, Code 7114, rather than under the Diagnostic Criteria for post-phlebitic syndrome, Code 7121. See 38 C.F.R. § 4.20. Under Code 7114, a 40 percent rating is warranted where there is 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 an ABI of 0.7 or less. A 60 percent rating is warranted where 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 an ABI of 0.5 or less. A 100 percent rating is warranted where there is ischemic limb pain at rest and either deep ischemic ulcers or an ABI of 0.4 or less. See 38 C.F.R. § 4.104, Code 7114. Code 7114 is followed by 3 notes. Note (1) states the ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Note (2) states that residuals of aortic and large arterial bypass surgery are evaluated as arteriosclerosis obliterans. Note (3) states that these ratings are for involvement of a single extremity. If more than one extremity is affected, each extremity is evaluated separately and combined under § 4.25, using the bilateral factor (§ 4.26) if applicable. After a review of all the evidence, the Board finds that the Veteran's disability picture for the period beginning on August 30, 2019 at least approximates the criteria for a 60 percent rating for his service-connected right leg thrombophlebitis. In this regard, the Board observes that the record, including the February 2021 VA examination, does not show persistent coldness of the extremity (or ABI score of 0.5 or less); however, review of the record from August 30, 2019 shows right foot numbness resulting in frequent falls and the Veteran being unable to "feel his right foot due to his vascular issues." As such, the Board finds that by analogy the Veteran's symptomatology at least satisfies the criteria for a 60 percent evaluation for his right leg thrombophlebitis for the period beginning on August 30, 2019. Although the Veteran reported in August 30, 2019 that he falls several times a month, the Board does not find that at any time prior to that date it is factually ascertainable that the Veteran's service-connected disability resulted in numbness and frequent falls. Therefore, an even earlier date for the higher rating is not warranted. Although the February 2021 VA examination report includes findings of ischemic limb pain at rest, the record does not show (and it is not claimed otherwise) either deep ischemic ulcers or an ABI of 0.4 or less. Accordingly, a rating in excess of 60 percent (the next higher 100 percent) under Code 7114 is not shown (or approximated) at any time during the appeal period. Similarly, although the February 2021 VA examination report includes findings of constant pain at rest, the record does not show (and it is not claimed otherwise) the Veteran has had massive board-like edema of the right leg. Accordingly, a rating in excess of 60 percent (the next higher 100 percent) is not warranted under Code 7121 at any time during the appeal period. The Board has also considered whether separate or higher ratings under other Codes are applicable. The evidence shows that the Veteran's service-connected right leg thrombophlebitis has been primarily manifested by symptoms of aching and fatigue after prolonged standing and walking, beginning eczema, persistent stasis pigmentation, persistent edema incompletely relieved by elevation of the extremity, persistent subcutaneous induration and constant pain at rest prior to August 30, 2019, and right foot numbness, claudication on walking less than 25 yards on a level grade at 2 miles per hour, diminished peripheral pulses, ischemic limb pain at rest and trophic changes (thin skin, absence of hair and dystrophic nails) from August 30, 2019. These symptoms are clearly accounted for in the 40 percent rating pursuant to Code 7121 prior to August 30, 2019 and in the 60 percent rating pursuant to Code 7114 from that date, service connection for bilateral knee disorder associated with right leg thrombophlebitis was granted in a March 2021 rating decision and the decision below grants service connection for left leg thrombophlebitis as a progression of right leg thrombophlebitis. The Veteran does not have complications of his right leg thrombophlebitis for which separate service connection and disability ratings have not already been awarded. Thus, additional separate or higher ratings under other Codes are not for application. The Board acknowledges the symptomatology related to his right leg thrombophlebitis as described by the Veteran and his spouse. They are competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his right leg symptoms are competent, they do not show that the criteria for a rating in excess of 40 percent prior to August 30, 2019 and in excess of 60 percent from that date have been met at any time during the appeal period. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Thrombophlebitis of the Left Leg As noted above, in Bailey v. Wilkie, 33 Vet. App. 188 (2021), the Court recently held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Service connection may be secondarily established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be awarded secondary service connection, there must be evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As discussed above, the Veteran is service connected for right leg thrombophlebitis. The February 2021 VA Artery and Vein Conditions examination report shows the Veteran has right and left varicose veins and post-phlebitic syndrome and includes the opinion that his thrombophlebitis of the right leg has progressed and he now has bilateral thrombophlebitis. As the record shows that the Veteran has a diagnosis of left leg thrombophlebitis and that this disability is secondary to (a progression of) his right leg thrombophlebitis, all of the requirements for establishing secondary service connection are met; service connection for left leg thrombophlebitis is warranted. REASONS FOR REMAND 4. TDIU As noted in the May 2020 Board remand, the Court has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran submitted an October 2013 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, indicating that his service-connected right leg disability ("DVT's/coumadin therapy 43 years") prevented him from securing or following any substantially gainful occupation. See, also, March 2019 Board hearing transcript. The matters are REMANDED for the following action: The AOJ should review the expanded record, implement the increased 60 percent rating for right leg thrombophlebitis from August 30, 2019 and award of service connection for left leg thrombophlebitis (assigning appropriate disability ratings and effective dates), and readjudicate the claim for a TDIU rating in light of the awards. If TDIU remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.