BVA9503327 DOCKET NO. 93-08 372 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for post-operative peripheral vascular disease with thromboangiitis obliterans and thrombophlebitis, right lower extremity. 2. Entitlement to an evaluation in excess of 20 percent for post-operative peripheral vascular disease with thromboangiitis obliterans and thrombophlebitis, left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from August 1942 to April 1945. This appeal arises from a March 1990 Department of Veterans Affairs (VA) New York, New York, Regional Office (RO) rating action that reported a 40 percent evaluation for the right leg and a 20 percent evaluation for the left leg; the RO indicated that based on the bilateral factor chart for peripheral vascular disease, a combined 40 percent rating was in order, under Diagnostic Code 7114. The rating for the veteran's service- connected post-operative peripheral vascular disease with thromboangiitis obliterans and thrombophlebitis was increased from 30 percent to 40 percent. The veteran, in statements dated in May 1990, and in November 1991, questioned whether the RO had applied the bilateral factor to ratings before March 1990. The veteran was specific about the alleged error (application of the bilateral factor) and even though the words of art, clear and unmistakable error, have not been used, if the bilateral factor was not applied by the RO, the rating results would have been manifestly different. Therefore, statements made by the veteran can be construed as a claim for clear and unmistakable error in rating actions prior to March 1990. Fugo v. Brown, 6 Vet.App. 40 (1993). Additionally, the veteran questioned whether his disability has been rated under the proper diagnostic code. Statements made by the veteran have been construed as a claim for a total rating. The RO's attention is directed to these claims for action deemed appropriate. The veteran's claim was sent to the Board of Veterans' Appeals (Board) in April 1993. Subsequent thereto, he submitted to the Board, via U.S. Mail, additional evidence received by the Board in July 1993. An explanation regarding the information accompanied the evidence. Other records the veteran wished to have considered in support of his claim were faxed to the Board in January 1995. In both cases, the veteran did not waive consideration of these records by the RO. Under 38 C.F.R. § 20.1304(c), any evidence submitted to the Board following notification to the veteran of the transfer of records from the RO to the Board, will not be, except when the appellant demonstrates on motion, that there was good cause for the delay. As to the July 1993 evidence, good cause was shown. The additional evidence will be referred to the agency of original jurisdiction. REMAND By rating action in March 1950 the service-connected thromboangiitis obliterans, previously evaluated at 40 percent, was elevated to 60 percent in September and October 1947, assigned a temporary total rating from October 1947 into December 1947, and a 60 percent evaluation from December 1947 to May 1950. Effective in May 1950 the 60 percent rating was reduced to 30 percent on the basis that thromboangiitis obliterans was not found on last examination, and the post-operative bilateral thrombophlebitis only warranted 30 percent. The applicable Diagnostic Codes were listed as 7121, 7115, and 7116. Since May 1950, the evaluation for the service-connected lower extremity disability has been 30 percent. The RO, in March 1990, reported assignment of a 40 percent evaluation for the right lower extremity and a 20 percent evaluation for the left lower extremity. Then it was reported that based on the bilateral factor for peripheral vascular disease, the combined rating for post-operative peripheral vascular disease with thromboangiitis obliterans and thrombophlebitis was 40 percent under Diagnostic Code 7114, effective July 14, 1989. However, in the April 1990 notice to the veteran, he was informed that an increased rating was denied. The pertinent note for schedular evaluations in excess of 20 percent under 38 C.F.R. § 4.104, Diagnostic Codes 7114, 7115, 7116, and 7117, requires that with bilateral involvement separately meeting the requirement for evaluation in excess of 20 percent, 10 percent will be added to the evaluation for the more severely affected extremity only. In this case only one extremity was evaluated in excess of 20 percent, and 10 percent would therefore not be added to the 40 percent rating for the right leg. However, under 38 C.F.R. § 4.25, Table I, Combined Ratings Table, a 40 percent evaluation combined with a 20 percent evaluation equals a combined 52 percent rating. 38 C.F.R. § 4.26, Bilateral factor, specifies that the ratings for disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added, not combined. In such a situation, the combine rating would be 57 percent, and when rounded up, 60 percent. Clearly there is a problem with the March 1990 evaluation of the veteran's service-connected bilateral post-operative peripheral vascular disease with thromboangiitis obliterans and thrombophlebitis, including the assignment of only Diagnostic Code 7114, as there are no separate rating criteria under this code and it is therefor rated by analogy to codes for intermittent claudication, varicose veins, or phlebitis or thrombophlebitis. It is not clear to the Board just which code was used to rate the service-connected disability. Finally, it is not clear how the combined 40 percent rating was achieved. The Board cannot consider an increased rating issue when the basis for the ratings in question is unknown to the Board. This case is therefore remanded for action as follows: 1. The RO is to consider the evidence submitted by the veteran to the Board without the appropriate waiver of consideration by the RO. 2. The veteran should be examined by a VA vascular specialist. All necessary special studies and tests are to be accomplished. The claims folder is to be made available to the examiner for review prior to the examination. 3. The veteran should be permitted to submit or identify any other evidence in support of his claim. Medical evidence or opinion as to the extent of his disability would be helpful. Evidence identified should be obtained by the RO. Following the above, the Board asks that the RO review the claims folder in its entirety. After such review, the RO should then provide a rating decision in which the right and left lower extremities are evaluated separately, and all diagnostic codes used in evaluating each extremity are shown. Reasons for the assignment of the ratings are to be stated. The bilateral factor, as appropriate, is also to be shown and properly referenced, and the source for the combined rating should be identified. Following the above, if any benefit sought remains denied, the veteran and his representative should be provided with a supplement statement of the case and be given opportunity to respond. The case should then be returned to the Board for further appellate consideration. RENÉE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).