Citation Nr: 21042113 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 08-26 498 DATE: July 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of uvulopalatopharyngoplasty (UPPP) is denied. REMANDED Entitlement to service connection for status-post left superficial femoral-posterior tibial bypass graft is remanded. Entitlement to service connection for status-post right superficial femoral-posterior tibial bypass graft is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's residuals of UPPP have been manifested by coughing at meals and nasal regurgitation/velopharyngeal incompetence; they have not been manifested by chronic laryngitis chronic laryngitis with hoarseness, with thickening or nodules of cores, polyps, submucous infiltration, or pre-malignant changes on biopsy; stricture or obstruction of the pharynx or nasopharynx; absence of the soft palate secondary to trauma, chemical burn, or granulomatous disease; or paralysis of the soft palate. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for residuals of a UPPP have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Codes 6521-6516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to December 1997. This matter is before the Board of Veterans' Appeals (Board) following Board remands in January 2012, March 2015, August 2016, and August 2019. In a June 2018 decision, the Board denied a rating in excess of 10 percent for residuals of uvulopalatopharyngoplasty and service connection for status-post left superficial femoral-posterior tibial bypass graft and status-post right superficial femoral-posterior tibial bypass graft. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted the parties' Joint Motion for Remand and remanded the issues back to the Board finding that the claims were inextricably intertwined with claims before the Agency of Original Jurisdiction (AOJ). The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for many years, and as noted above, has already been remanded several times in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claims. 1. Entitlement to a rating in excess of 10 percent for residuals of UPPP 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. If two evaluations are potentially applicable, 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's residuals of UPPP have been rated as 10 percent disabling under Diagnostic Codes 6521-6516. 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. 38 C.F.R. § 4.27. Under Diagnostic Code 6516, a 10 percent is assigned for chronic laryngitis with hoarseness, with inflammation of cords or mucous membrane. A 30 percent evaluation is assigned for chronic laryngitis with hoarseness, with thickening or nodules of cores, polyps, submucous infiltration, or pre-malignant changes on biopsy. 38 C.F.R. § 4.97, Diagnostic Code 6516. Under Diagnostic Code 6521, a rating of 50 percent is warranted with stricture or obstruction of pharynx or nasopharynx, absence of soft palate secondary to trauma, chemical burn, or granulomatous disease, or paralysis of soft palate with swallowing difficulty (nasal regurgitation) and speech impairment. 38 C.F.R. § 4.97, Diagnostic Code 6521 (2017). In March 2012, the Veteran submitted a Report of Consultation and Examination by a private chiropractor who noted that due to failed UPPP, the Veteran developed reflux, gagging, sporadic unpredictable vomiting, voice changes, and persistent coughing. The Veteran underwent VA examination in October 2012 at which time he reported that since his UPPP, he suffered from several issues with the surgery such as food or liquids leaking into his nose when eating or drinking and noted that he would find food such as rice when he blew his nose. He also reported issues with post-nasal drip. The examiner indicated there were no problems with the Veteran nose, throat, larynx, or pharynx, and no evidence of sinusitis or rhinitis. The examiner specifically noted the Veteran did not have laryngitis, tumors, neoplasms, or evidence of laryngeal stenosis and concluded that the physical examination was unremarkable except for the subjective complaints noted by the Veteran. The Veteran underwent VA examination in June 2015 at which time the examiner noted that the Veteran's uvula had been removed, that his gag reflex was sensitive on examination, and that his voice and phonation were within normal ranges. The examiner noted that the Veteran had frequent trouble swallowing where he choked on food or liquids at least once a week more commonly with small particulate food like rice due to his palate. The examiner noted that there were no additional ear, nose, and throat residuals from the Veteran's service connected UPPP noted on examination. The Veteran underwent VA examinations in May 2017 at which time the examiner found that his UPPP resulted in current residual condition of dysphagia. The examiner explained that per medical literature Up to Date, the most common adverse effects of UPPPs are severe transient throat pain in nearly all patients and chronic subjective dysphagia in up to one-third of patients. The examiner noted that symptomatic dysphagia may include coughing at meals, nasal regurgitation/velopharyngeal incompetence, food sticking, and/or a globus sensation. The examiner noted that the Veteran's description of episodes of coughing at meals, nasal regurgitation/velopharyngeal incompetence was at least as likely as not a residual of UPPP. The examiner noted that the Veteran's symptoms of heart burn and nausea were secondary to GERD. The examiner noted that there was no stricture or obstruction of the pharynx or nasopharynx; absence of soft palate; or paralysis of the soft palate or speech impairment. The examiner noted that the Veteran had an esophagogastroduodenoscopy (EGD) in 2000 which was normal and also an upper gastrointestinal (UGI) series that was normal. The Veteran underwent VA examination in October 2019 at which time the examiner noted that current residuals of UPPP included absent uvula, regurgitation of food stuff/liquids through nasal passages, occasional choking, frequent coughing, and sensitive gag reflex. In this case, the record does not show that the Veteran's residuals of UPPP warrants a rating in excess of 10 percent at any point during the pendency of the appeal. A 30 percent rating pursuant to Diagnostic Code 6516 is not warranted as the evidence does not show chronic laryngitis with hoarseness, with thickening or nodules of cores, polyps, submucous infiltration, or pre-malignant changes on biopsy. Further, a 50 percent rating pursuant to Diagnostic Code 6521 is not warranted as although the evidence indicates that the Veteran has had swallowing difficulty (nasal regurgitation), there is no evidence of stricture or obstruction of pharynx or nasopharynx, absence of soft palate secondary to trauma, chemical burn, or granulomatous disease, or paralysis of soft palate. In addition, although the private chiropractor noted that due to failed UPPP, the Veteran developed voice changes, speech impairment has not been demonstrated. The June 2015 VA examiner noted that the Veteran's voice and phonation were within normal ranges, and the 2017 VA examiner specifically indicated that there was no speech impairment. The Board has also considered the other rating criteria for diseases of the nose and throat; however, there is no evidence of a total laryngectomy (Diagnostic Code 6518), aphonia (Diagnostic Code 6519), stenosis of the larynx (Diagnostic Code 6520). REASONS FOR REMAND 2. Entitlement to service connection for status-post left superficial femoral-posterior tibial bypass graft 3. Entitlement to service connection for status-post right superficial femoral-posterior tibial bypass graft The Veteran was seen on March 6, 2000, with complaint that he was sitting at his computer when he felt a cramp in his left leg and then left foot paresthesia with increasing intensity. He presented to the emergency room and was given ibuprofen and discharged. He returned the following day and given a shot of Demerol and advised to see his primary care physician. He was seen by his primary care physician who sent him to the vascular laboratory at which time he had results of ankle brachial index of greater than 1.0 and toe pressure of 150 on the right and ankle brachial index of 0.52 and a toe pressure of zero on the left indicating occlusion of the popliteal artery on the left, distal to the knee but no evidence of popliteal aneurysm. He was admitted secondary to critical limb and underwent a left above the knee popliteal to posterior tibial artery bypass graft with non-reversible transposed greater saphenous vein graft as well as 24-hour period of Dextran followed by three days of intravenous heparinization. He was discharged on March 15, 2000. A neurology consultation the day before surgery, it was noted that he reported that during the prior two years complained of bilateral lower extremity "weakness," "pain," and "cramps" when he walked more than two blocks. In July 2002, the Veteran was diagnosed as having right popliteal thrombus, etiology unknown, and underwent right femoral popliteal vein bypass due to occlusion of right popliteal artery. In November 2000, it was noted that the Veteran would be treated as though he had established atherosclerosis although the precise cause of his peripheral vascular disease occlusion was unknown. The Veteran underwent excision and interposition bypass graft of right femoral to posterior tibial artery bypass with vein on May 17, 2018 and graft occlusion surgery on June 15, 2018. VA has obtained numerous opinions regarding the etiology of the Veteran's peripheral vascular disease. In October 2012, the VA examiner opined that peripheral vascular disease was less likely as not caused by or a result of the Veteran's time in service. The examiner noted that there was no evidence within the service treatment records which indicated an onset of peripheral vascular disease while in service and that the initial presentation and diagnosis of peripheral vascular disease was in March 2000. The examiner also found that the Veteran's peripheral vascular disease was not due to or a result of any of the Veteran's service-connected conditions and noted that risk factors for peripheral vascular disease included tobacco use, diabetes, hypertension, and dyslipidemia. The examiner also noted that there was no medically recognized connection/correlation/associated risk with lumbosacral disk disease, ankle sprains, history of UPPP, or pseudofolliculitis barbae. In June 2014, the VA examiner opined that there was no objective evidence that the Veteran's peripheral vascular disease was caused by or aggravated to any degree by any of his service-connected conditions or his military service. The examiner noted that the service treatment records were silent for any peripheral vascular disease symptoms, treatments or diagnoses and that although the service treatment records did report numbness of the lower extremities, that his numbness was consistent with his service-connected lumbar spine disease, and that there was no objective evidence such as diminished peripheral pulses, decreased ankle-brachial index (ABI), or arteriographic evidence recorded at that time or within one to two years after discharge to support the presence of peripheral vascular disease at that time. The examiner noted that therefore, there was no current objective evidence that the reported leg numbness, pain, and other symptoms were related to the Veteran's eventual peripheral vascular disease some four years later. The examiner also noted that the current medical literature did not support a cause and effect relationship between lumbar spine disease, ankle joint disease, pseudofolliculitis barbae (PFB), or any ear, nose, or throat conditions and the development of peripheral vascular disease. In May 2017, the VA examiner essentially opined that the Veteran's left and right leg popliteal to posterior tibial reversed saphenous vein graft bypasses was not incurred in or caused by service and that the Veteran did not have the condition until 2000. The examiner noted that the Veteran's service treatment records were positive for complaints of numbness in the lower extremities, but that electromyography (EMG) and nerve conduction studies done for the very same complaint was positive for lumbar radiculopathy. The examiner noted that numbness was not a common symptom of peripheral vascular disease which causes claudication pain and foot discoloration before any symptomatology of nerve damage. The examiner also noted that neuropathy described in peripheral vascular disease was usually of paresthesias, none of which were symptoms noted in the service treatment records. The examiner also essentially opined that the condition was not caused by or aggravated by his service-connected disabilities. The examiner noted that per medical literature there was no cause and effect relationship between degenerative joint disease and peripheral vascular disease. In November 2017, the Veteran submitted a private medical opinion that it was at least as likely as not that the Veteran's peripheral vascular disease status post right and left leg popliteal to posterior tibial reversed saphenous vein graft bypass was secondary to, related to, and/or aggravated by his service related obstructive sleep apnea. The private physician noted that the medical literature supported a nexus between peripheral vascular disease and obstructive sleep apnea and that obstructive sleep apnea increased the risk of blood clotting and increased blood viscosity. In support of the opinion, the physician noted numerous studies; however, none of the studies conclusively determined that obstructive sleep apnea caused or aggravated peripheral vascular disease. In November 2017, VA obtained a medical opinion as to whether the Veteran's right/left leg popliteal to posterior tibial reversed saphenous vein graft bypass were caused by or aggravated by service-connected disabilities or related to a period of active service. The examiner found that it was less likely as not related to service-connected disabilities or active duty service or aggravated by service-connected disabilities. The examiner stated that per medical literature, there was no cause and effect relationship between the Veteran's service-connected conditions and peripheral vascular disease; that peripheral vascular disease is due to atherosclerosis of the arteries which had nothing to do with service-connected conditions. The examiner noted that service treatment records were positive for complaints of numbness in the lower extremities, but that EMG and nerve conduction studies done for the very same complaint was positive for lumbar radiculopathy which explained the numbness. The examiner also noted that numbness was not a common symptom of peripheral vascular disease, that it caused claudication pain and foot discoloration before any symptomatology of nerve damage, and that neuropathy described in peripheral vascular disease was usually of paresthesias, none of which were noted in service treatment records. As service connection has been established for obstructive sleep apnea, the Board finds that an addendum medical opinion should be obtained which addresses the relationship between obstructive sleep apnea and his residuals of superficial femoral-posterior tibial bypass grafts. 4. Entitlement to a TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. A Social Security Administration (SSA) Disability Determination and Transmittal indicates that the Veteran became disabled on May 13, 2018, that the primary diagnosis was other diseases of circulatory system (venous insufficiency), and that the secondary diagnosis was disorders of back (discogenic and degenerative). On SSA evaluation in November 2019, the Veteran reported that he had earned a Bachelor's Degree and that his last job was a technical lead supervisor for MacDill Air Force Base from October 2015 to May 2018 when he stopped working due to surgeries to the right leg with complications. VA treatment records indicate that in December 2017, the Veteran reported working as a technical lead doing computer analysis at MacDill. In February 2018, the Veteran reported that he lived with his family and worked full time. In March 2018, the Veteran reported that he worked full time in IT/computers. In April 2018, the Veteran reported that he was working full time in event management at night. The Veteran underwent excision and interposition bypass graft of right femoral to posterior tibial artery bypass with vein on May 17, 2018 and graft occlusion surgery on June 15, 2018. The record indicates that he was on medical leave until October 2018. In February 2020, the Veteran reported that he had not been able to work for two years and that he was going through the process of obtaining Social Security Administration (SSA) benefits. As such, the Board finds that the Veteran has not been working since May 2018. The evidence also indicates that the Veteran's service-connected musculoskeletal symptoms would make it difficult for him to walk or stand for prolonged periods. His psychological symptoms make it difficult to concentrate and focus and establish work relationships. The Veteran has been in receipt of a 100 percent rating since May 11, 2017. Specifically, the Veteran has been in receipt of a 50 percent rating for adjustment disorder with depressive symptoms, a 50 percent rating for obstructive sleep apnea, a 40 percent rating for lumbosacral disc disease, a 30 percent rating for gastroesophageal reflux disease, and 10 percent ratings for pseudofolliculitis barbae, left ankle sprain, residuals of UPPP, cervical spondylosis, left lower extremity radiculopathy, and right lower extremity radiculopathy. The Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). A grant of a 100 percent disability, however, does not always render the issue of TDIU moot. VA has a duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. As the Board has remanded the issues of entitlement to service connection for status-post right and left superficial femoral-posterior tibial bypass grafts, which could result in the award of additional disability compensation. Such an award could, in turn, lead to increased compensation pursuant to 38 U.S.C. § 1114 and the Bradley case. Thus, the issue of entitlement to a TDIU remains on appeal. As the issue of entitlement to a TDIU is inextricably intertwined with the issues remanded above, it must also be remanded. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, preferably a vascular specialist, regarding whether the Veteran's residuals of superficial femoral-posterior tibial bypass grafts are at least as likely as not (i) proximately due to service-connected obstructive sleep apnea or (ii) aggravated, i.e., worsened beyond its natural progression, by service-connected obstructive sleep apnea. The clinician is requested to address the numerous studies identified by the private physician in November 2017. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.