07-02 039
07-02 039
| Board of Vet. App. | Mar 17, 2017Background
- Veteran served 1960–1964; appealed initial VA ratings after service connection for peripheral vascular disease (PVD) of both lower extremities was granted effective May 1998.
- RO originally assigned 20% for each leg (May 1998); record contains ABI and exam data across 1998–2011 including ABIs: 0.75/0.73 (May 1998), 0.57/0.47 (May 11, 2000), 0.94/0.76 (Aug 9, 2006), and 0.94/0.76 or 0.91/0.71 in later testing.
- Stent placed in left femoral artery in Nov 2000 with symptom improvement thereafter.
- VA increased ratings after remands; Board applied “staged” ratings: 20% each leg (May 1998–May 10, 2000), 40% each (May 11, 2000–Aug 8, 2006), 20% each (Aug 9, 2006–Dec 18, 2011), and 60% each from Dec 19, 2011.
- Veteran has coronary artery disease (10% → 30%); combined rating reached 90% as of Dec 19, 2011.
- Veteran has limited education (four years HS) and manual-construction work history; Board found TDIU warranted effective Dec 19, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Initial rating >20% for right/left leg prior to May 11, 2000 | PVD symptoms/ABIs justify >20% earlier | RO: evidence does not meet higher criteria before May 11, 2000 | Denied — >20% not warranted before May 11, 2000 |
| Increased rating 40% from May 11, 2000 to Aug 8, 2006 | May 11, 2000 ABIs (0.57/0.47) and severe claudication support 40% | RO previously awarded only 20% initially | Granted — 40% for both legs for May 11, 2000–Aug 8, 2006 |
| Rating >20% between Aug 9, 2006 and Dec 18, 2011 | Veteran’s symptoms still severe enough for >20% | VA points to improved ABIs (0.94/0.76) and exams showing less severe signs | Denied — evidence shows improvement; >20% not met in this interval |
| Rating >60% and extraschedular relief from Dec 19, 2011 | 60% may be inadequate given functional impact; possible extraschedular referral | VA: Dec 19, 2011 exam meets 60% criteria (claudication <25 yards, trophic changes) but not criteria for >60% or extraschedular | Denied for >60% and for extraschedular; 60% assigned from Dec 19, 2011 |
| TDIU effective date | Veteran: unemployable due to combined service disabilities earlier | VA: employment history and prior function may not place him outside the norm until later | Granted — TDIU awarded effective Dec 19, 2011 (not earlier) |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA duty-to-notify standard)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (adequacy of medical opinion)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (consideration of bases/competence of examiner)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (lay evidence competency limits)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App.) (three-step extraschedular inquiry)
- Van Hoose v. Brown, 4 Vet. App. 361 (Vet. App.) (TDIU—what shows inability to perform work)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (extraschedular ratings based on combined effects)