Citation Nr: 18131271
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-39 742
DATE:	August 31, 2018
ORDER
For the period prior to February 2, 2010, entitlement to an initial rating of 20 percent, but not higher, for left lower extremity peripheral vascular disease is granted, subject to the laws and regulations controlling the award of monetary benefits.
For the period prior to February 2, 2010, entitlement to an initial rating of 20 percent, but not higher, for right lower extremity peripheral vascular disease is granted, subject to the laws and regulations controlling the award of monetary benefits.
For the period from February 2, 2010 to June 6, 2011, entitlement to a rating higher than 20 percent for left lower extremity peripheral vascular disease is denied.
For the period from February 2, 2010 to July 14, 2010, entitlement to a 40 percent rating, but not higher, for right lower extremity peripheral vascular disease is granted, subject to the laws and regulations controlling the award of monetary benefits.
For the period from June 7, 2011, entitlement to a rating of 60 percent, but not higher for left lower extremity peripheral vascular disease is granted, subject to the laws and regulations controlling the award of monetary benefits.
For the period from July 15, 2010, entitlement to a rating of 60 percent, but not higher for right lower extremity peripheral vascular disease is granted, subject to the laws and regulations controlling the award of monetary benefits.
FINDINGS OF FACT
1. For the period prior to February 2, 2010, the Veteran’s left and right peripheral vascular disease symptoms have more nearly approximated claudication on walking more than 100 yards and an ankle-brachial index (ABI) of 0.9 or less.  
2. For the period from February 2, 2010 to June 6, 2011, the Veteran’s left lower extremity peripheral vascular disease symptoms do not more nearly approximate claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and trophic changes or an ABI of 0.7 or less. 
3. For the period from February 2, 2010 to July 14, 2010, the Veteran’s right lower extremity peripheral vascular disease symptoms more nearly approximate claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and an ABI of 0.7 or less.
4. For the period from June 7, 2011, the evidence is at least evenly balanced as to whether the Veteran’s left lower extremity peripheral vascular disease symptoms more nearly approximate 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, but at no time does his symptomatology more nearly approximate ischemic limb pain at rest, and either deep ischemic ulcers or an ABI of 0.4 or less.
5. For the period from July 15, 2010, the evidence is at least evenly balanced as to whether the Veteran’s right lower extremity peripheral vascular disease symptoms more nearly approximate 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, but at no time does his symptomatology more nearly approximate ischemic limb pain at rest, and either deep ischemic ulcers or an ABI of 0.4 or less.
CONCLUSIONS OF LAW
1. For the period prior to February 2, 2010, the criteria for a rating of 20 percent, but not higher, for left lower extremity peripheral vascular disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, diagnostic code (DC) 7114. 
2. For the period prior to February 2, 2010, the criteria for a rating of 20 percent, but not higher, for right lower peripheral vascular disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, DC 7114. 
3. For the period from February 2, 2010 to June 6, 2011, the criteria for a rating higher than 20 percent for left lower extremity peripheral vascular disease have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, DC 7114. 
4. For the period from February 2, 2010 to July 14, 2010, the criteria for a rating of 40 percent, but not higher, for right lower peripheral vascular disease have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, DC 7114. 
5. Resolving reasonable doubt in favor of the Veteran, for the period from June 7, 2011, the criteria for a rating of 60 percent, but not higher, for left lower extremity peripheral vascular disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, DC 7114. 
6. Resolving reasonable doubt in favor of the Veteran, for the period from July 15, 2010, the criteria for a rating of 60 percent, but not higher, for right lower peripheral vascular disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, DC 7114. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1967 to May 1970.
This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, among other things, granted service connection for right and left lower extremity peripheral vascular disease, rating them both separately as noncompensable from December 22, 2006, and 20 percent disabling from February 2, 2010.  Additionally, the RO rated right lower extremity peripheral vascular disease as 40 percent disabling from July 15, 2010.
In October 2011, the Veteran filed his notice of disagreement with the ratings assigned for his right and left lower extremity peripheral vascular disease.  A January 2013 rating decision increased the rating for the Veteran’s left lower extremity peripheral vascular disease, evaluating it as 40 percent disabling from June 7, 2011.  The Veteran was issued a statement of the case in September 2014, and in November 2014 perfected his appeal to the Board.
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.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).
Ratings
The Veteran’s peripheral vascular disease is rated under DC 7199-7114. Such hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code, in this case arteriosclerosis obliterans under 38 C.F.R. § 4.104, DC 7114, to identify the basis for the rating. See 38 C.F.R. § 4.27. 
Under DC 7114, a 20 percent disability rating is assigned for claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less.  A rating of 40 percent is assigned for claudication on walking between 25 and 100 yards on a level grade at two miles per hour; and, trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index (ABI) of 0.7 or less.  A rating of 60 percent is assigned for claudication on walking less than 25 yards on a level grade at two miles per hour; and, either persistent coldness of the extremity or ABI of 0.5 or less.  A rating of 100 percent is assigned for ischemic limb pain at rest; and, either deep ischemic ulcers or ABI of 0.4 or less. 38 C.F.R. § 4.114, DC 7114.
Note (1) to DC 7114 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.
January 2010 private treatment records report the Veteran complained of “rubber” feeling in right and left legs and feet, and right calf cramps triggered by walking a certain distance with relief with rest, then returning with walking again.
February 2010 private treatment notes indicate decreased blood flow to the legs worse on the right than the left due to narrowing of blood vessels to the legs which can cause fatigue and funny feeling in the legs. They also indicated moderate to severe right aortoiliac disease and mild to moderate left aortoiliac disease with resting ankle brachial index of 0.58 on the right and 0.85 on the left.
A March 2010 private physician letter indicated the Veteran developed lower extremity peripheral artery disease by segmental limb pressure study resulting in activity limiting claudication.
A June 2010 examination report noted the Veteran reported a 2-year history of numbness and occasional needle-like sensation in his toes with the symptoms more intense on the right than the left. The Veteran was very limited in his activities because of his severe peripheral vascular disease.  His leg claudication limited his walking to about 50 to 60 yards.  ABI in the past documented peripheral arterial disease of both lower extremities with the right worse than the left, but the Veteran has had some progression of his symptoms of his feet.  The examiner noted vascular pulses of: femoral left 1+, right 2+, popliteal: 0 bilaterally, posterior tibialis 0 bilaterally, dorsalis pedis 1+ left, 0 right.  Deep tendon reflexes 2+ patella, 2+ achilles.  Sensory examination was intact on the plantar surface of both feet, and vibratory sensation was normal on the right and decreased in the left toe.  Motor strength was normal, sensory examination showed decreased sharp sensation on all toes of the right foot, but intact on the toes of the left foot.  There was loss of sharp sensation on the plantar surface of both feet, and proprioception loss of both feet.
June 2012 VA treatment records note the Veteran complained of bilateral calf pain when walking, stating he has to stop once walking in from the parking lot, but the condition does not keep him from playing golf.  He does not suffer tissue loss or rest pain. His ABI readings were 0.82 on the right, and 0.75 on the left with mild to moderate peripheral artery disease with claudication.  The condition was found to not be significantly lifestyle-limiting.
The Veteran was afforded a VA examination in December 2012.  The examination report noted varicose veins or post-phlebitic syndrome and constant pain at rest.  The report noted claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour on both legs, no aortic aneurysm, no aneurysm of a small artery, no Raynaud’s syndrome, and no arteriovenous fistula, angioneurotic edema or erythromelalgia.  The examination report noted the June 2012 ABI’s of 0.82 on the right, and 0.75 on the left.
Based on the foregoing, for the period prior to February 2, 2010, the Board finds that the Veteran’s left and right peripheral vascular disease symptoms more closely approximated a symptomatology contemplated by a 20 percent rating under DC 7114.  While the January 2010 private records did not specifically quantify the Veteran’s symptoms, the Veteran discussed a rubber feeling in his right and left legs and feet, and cramping in the right calf when walking an unspecified distance. The Veteran is competent to report the observable manifestations of his disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, considering the Veteran’s competent lay evidence of cramping and a “rubber feeling”, the evidence is at least evenly balanced that the Veteran’s left and right peripheral vascular disease symptoms more closely approximate a symptomatology contemplated by a 20 percent rating under DC 7114.  However, there is no evidence for the period prior to February 2, 2010 that the Veteran’s left and right peripheral vascular disease resulted in an ABI of 0.7 or less, or claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour.  Therefore, a rating higher than 40 percent under DC 7114 is not warranted for the period prior to February 2, 2010 for right and left peripheral vascular disease.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 20 percent rating, but not higher, for right and left peripheral vascular disease is warranted for the period prior to February 2, 2010. U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 
For the period from February 2, 2010, the Veteran’s left peripheral vascular disease symptomatology does not more nearly approximate those contemplated by a 40 percent rating under DC 7114.  However, for the period from February 2, 2010, the Veteran’s right peripheral vascular disease symptomatology more nearly approximates those contemplated by a 40 percent rating under DC 7114. The February 2010 and March 2010 private treatment notes indicate the Veteran has fatigue and funny feelings in his legs.  The March 2010 private treatment notes also note ABI readings of 0.58 on the right and 0.85 on the left.  As the evidence of record notes an ABI of greater 0.85 and there is no evidence of trophic changes on the left leg, a rating higher than 20 percent for the Veteran’s left peripheral vascular disease is not warranted.  However, the evidence indicates ABI readings of 0.58 on the right and as previously mentioned the Veteran has suffered cramping in the right calf when walking an unspecified distance.  Therefore, for the period from February 2, 2010, the Veteran’s right peripheral vascular disease more nearly approximates a symptomatology contemplated by a 40 percent rating. There is no reasonable doubt to be resolved as to these issues.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
For the period from June 7, 2011, the Veteran’s left peripheral vascular disease more nearly approximated a symptomatology contemplated by a 60 percent rating under DC 7114, and for the period from July 15, 2010, the Veteran’s right peripheral vascular disease more closely approximated a symptomatology contemplated by a 60 percent rating under DC 7114.  While the July 2012 examination report noted right and left ABIs of 0.82 and 0.75 respectively and the December 2012 examination report did not note claudication on walking less than 25 yards on a level grade at 2 miles per hour, the December 2012 examination report did note constant pain at rest.  Additionally, the Veteran’s June 2012 VA treatment records note that the Veteran has to stop once when walking in from the parking lot due to bilateral calf pain.  While the Veteran did not specify the distance from the parking lot, it is reasonable to conclude that the distance is not so great that a person without severe symptomatology would be required to stop once due to claudication.  Taking into consideration the Veteran’s reports of constant pain at rest, and bilateral claudication upon walking an unspecified distance, the evidence is at least evenly balanced that for the period from July 15, 2010, the Veteran’s right peripheral vascular disease, and from June 7, 2011 the Veteran’s left peripheral vascular disease more nearly approximated a symptomatology contemplated by a 60 percent rating under DC 7114.  However, at no time during the period on appeal did the Veteran’s bilateral peripheral vascular disease more closely approximate a symptomatology contemplated by a 100 percent rating.  There is no evidence of record that the Veteran suffered from or complained of ischemic limb pain at rest and either deep ischemic ulcers or an ABI of 0.4 or less.  Thus, a 100 percent rating under DC 7114 is not warranted.
As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 60 percent rating, but not higher, for the period from June 7, 2011 for the Veteran’s left peripheral vascular disease, and for the period from July 15, 2010 for the Veteran’s right peripheral vascular disease is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Maddox, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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