Citation Nr: 0001946 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 96-33 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for a scar on the left knee. 2. Entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability to include lymphedema with deep vein thrombosis claimed to be the result of Department of Veterans Affairs (VA) surgical treatment in February and March 1995. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from October 1949 to August 1953. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from February 1996 and May 1997 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The February 1996 rating decision, in part, denied service connection for lymphedema and granted service connection for a scar on the left knee at a noncompensable evaluation from August 1995. In his March 1996 notice of disagreement, the veteran wrote that his claim for service connection for lymphedema was due to treatment at the VA Medical Center (VAMC) in Birmingham, Alabama and "not due to any onset while on active military duty." The issue of entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 for lymphedema with deep vein stenosis was denied in a May 1997 rating decision. This case was previously before the Board in January 1999 when it was remanded for additional medical evidence. The requested development has been completed with regard to the claim for an initial compensable rating for a scar on the left knee and the Board proceeds with its consideration of this issue on appeal. However, the requested development was not completed with regard to the § 1151 claim and this must again be remanded. The Board notes that it has recharacterized the issue of entitlement to a compensable evaluation for the disability at issue in order to comply with the recent opinion by the United States Court of Appeals for Veterans Claims (Court), in Fenderson v. West, 12 Vet. App. 119 (1999). In that case, the Court held, in pertinent part, that the RO had never properly provided the appellant with a statement of the case (SOC) concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson at 132, emphasis in the original. The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for issuance of a SOC. Id. Unlike the case in Fenderson, the RO in this case identified the issue on appeal as evaluation of the scar on the left knee rather than as a claim for an increased rating. The RO issued an SOC providing the appellant with the appropriate applicable law and regulations and an adequate discussion of the basis for the RO's assignment of the initial disability evaluation for this condition. In addition, the appellant's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the appellant in recharacterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned. See Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal for an initial compensable rating. 2. The veteran's service-connected scar on the left knee is manifested by a 5 cm. superficial scar over the left patella without objective evidence of tenderness attributable to the scar; it is not the result of burn, does not result in limitation of function, is not ulcerating or poorly nourished and is not disfiguring. CONCLUSION OF LAW The criteria for an initial compensable rating for a scar on the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Scar on the Left Knee. Preliminary Matters The veteran's claim for an initial compensable rating for his service-connected scar on the left knee is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. His assertion that his scar is more severe than initially evaluated is plausible. When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Service-connected disabilities are rated in accordance with VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999) (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part or system in self support of the individual. 38 C.F.R. § 4.10 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). Factual Background The service medical records show that the veteran was in an automobile accident in Germany in October 1952 when he fell asleep at the wheel. A Medical Officer's certificate shows a diagnosis of a deep laceration to the left knee and an opinion that the injury was not likely to result in permanent disability. The separation examination report from August 1953 noted only a left knee injury in November 1952 with resulting scar. A June 1978 private physical examination showed that the veteran was status post one year resection of his left medial cartilage and removal of a synovial cyst which was secondary to hitting his left knee against a metal lathe machine. In his August 1995 VA joints examination, there was surgical evidence of two arthrotomies of the left knee. In his February 1998 personal hearing, the veteran was asked if the scar on his left knee gave him any trouble. He was asked whether it flared up, got red, got sore, or drained. He stated that he had none of these problems, his problem was the whole knee. Following a remand by the Board, a VA scar examination was conducted in February 1999. The veteran's current symptoms were an itching and a mild burning that was aggravated by tight clothing. Examination showed a 5 cm. x 1.2 cm rounded rectangular shaped scar above the left patella, oriented vertically. There was central hypopigmentation with peripheral hyperpigmentation. The examiner noted that the veteran claimed that there was "tenderness upon palpation of the scar. However, in the areas of skin surrounding the scar, there is also tenderness." There was no ulceration or breakdown, no elevation or depression, underlying tissue loss, edema, inflammation or keloid formation. There was no disfigurement although the examiner noted that the scar was evident. Regarding any functional limitation, he added that he did not believe there was any functional limitation caused by the scar. He reported that "(t)his scar is situated above the patella and appears to be "very superficial." Analysis The veteran is currently rated under the Schedule for scars based on limitation of function of the part affected. 38 C.F.R. Part 4, Diagnostic Code 7805 (1999). Although he claimed in his recent VA examination that there was mild burning to the scar that was aggravated by tight clothing, the examiner concluded that there was no functional limitation caused by the scar and that any functional limitation had more to do with his left knee and history of cartilage injury than the scar. As such, a noncompensable evaluation is appropriate under this diagnostic code. A compensable evaluation is also possible for a scar that are tender and painful on objective demonstration; however, while there is objective evidence of tenderness upon palpation of the scar, tenderness was also observed on palpation of the skin surrounding the scar. The veteran also noted in his personal hearing that his problems were less with the scar than the whole knee. Thus it appears that the veteran's complaints of tenderness are not attributable to the scar but to the whole knee and as such, a compensable evaluation is also not appropriate under the diagnostic code for scars that are tender and painful. 38 C.F.R. Part 4, Diagnostic Code 7804. The Board notes, as did the examiner in February 1999, that the veteran has had "a complicated problem with lymphedema and deep vein thrombosis," which is discussed in the remand that follows. The Board has considered other diagnostic codes under which a scar may be rated; however, the evidence does not show a poorly nourished or repeated ulceration of the scar required for a compensable evaluation under Diagnostic Code 7803. Compensable evaluations are also possible for scars that are disfiguring on the face, head or neck, and for certain scars resulting from burns; however, these criteria are not shown in this case. 38 C.F.R. Part 4, Diagnostic Codes 7800-7802 (1999). The preponderance of the evidence of record, at any time since his initial disability evaluation, is against a compensable rating for the veteran's service-connected scar on the left knee. See Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate, or staged, ratings can be assigned for separate periods of time based on the facts found). Because the evidence for and against a higher evaluation is not evenly balanced, the rule affording the veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial compensable rating for a scar on the left knee is denied. REMAND The veteran's claim under the provision of 38 U.S.C.A. § 1151 arises from treatment he received by VA in February and March 1995 for lymphedema. The report of his hospitalization shows that he was admitted in late February 1995 for gradually worsening dyspnea the week prior to admission. On initial evaluation at the emergency room, this was felt to have a congestive heart failure exacerbation. His past medical history was significant for nonocclusive chronic thrombus in the right popliteal vein as shown on Doppler in December 1993. Physical examination of the extremities on admission showed 3+ nonpitting edema with chronic venous stasis changes of the right lower extremity. His hospital course relative to his deep vein thrombosis was described as follows: The patient was started on Heparin and was noted to have a new right axis deviation on electrocardiogram and normal sinus rhythm. On hospital day number three, he had a second episode of shortness of breath while therapeutic on Heparin and a new right bundle branch block noted. It was decided, given his recurrent pulmonary thromboemboli and noncompliance, an inferior vena cava filter was appropriate. It was placed without difficulty. The patient did well, but complained of some increasing right lower extremity edema up into his thigh. The actual report of his venocaval filter placement explains that the procedure had been recommended because the veteran had been noncompliant with his anticoagulant medication and had a high probability of pulmonary embolism. Following surgery, the veteran's diuretics were increased, then held after it was felt he was being over aggressively diuresed. The report of his hospitalization continues: It was explained in detail to the patient [why we were] holding the diuretics; however, he continued to believe that we were not treating him, and was not completely clear on why in fact the diuretics were held. It was explained that this was a chronic problem that would take some time to resolve and would never go back to being normal. At discharge, his leg was still very edematous and tender to touch. It had no signs of infection and no increased warmth. . . . He will be discharged on his previous doses of Lasix with the thought that this will maintain his congestive heart failure and that he would ultimately diurese that fluid, but it would take time. Again, this was explained multiple times, including the fact that an inferior vena cava filter can cause increasing lower extremity edema and that his overall prognosis for return to normal lower extremity was almost zero. As a general comment on his hospital course, the report adds that the veteran was an extremely difficult patient during his hospitalization. He was both verbally and emotionally abusive to both the M.D. and the nursing staff. The patient repeatedly made unreasonable requests, including to have a needle put in his foot to drain off some of the fluid. . . . He continued to be unable to understand why we were not using the Lasix during his acute increase in creatinine. He also refused to have an IV pulled because an order was written by the intern, and he wanted the resident to write it. . . . The report also describes an incident during his hospital stay when he wheeled himself into the emergency room to be evaluated immediately for constipation because he had been told that the primary physician on call was there admitting patients and was unavailable on the ward. The day prior to his discharge, the nurses on his ward requested that he be moved to a different ward since he was so difficult to manage; however this request was refused. Finally, although he indicated that he had some difficulty using his right leg, and was offered a wheelchair, a cane or a crutch by an M.D., he refused all three. A social worker was consulted and offered him nursing home placement, a domiciliary or a visiting nurse. He refused these also; however, immediately prior to discharge he agreed to a crutch which was ordered from prosthetics. Overall, this patient represented difficult management, and the primary team consulted everybody who was appropriate and offered him many other resources that we would not ordinarily do in the case of a condition of his, meaning ordinarily that a deep vein thrombosis does not require all of these other procedures; however, in an effort to accommodate his wishes we went out of our way to be certain that nothing was left undone. He continues to be dissatisfied with his care here despite our best efforts. The following year in July 1996, private medical records show that the veteran was referred to the Kirklin Plastic and Reconstructive Clinic by his urologist with a history of lymphedema for about 3 years and an 85 to 95 lb. weight gain over the last year. Physical examination revealed bilateral swollen legs with typical keratosis of lymphedema. He had brawny induration from the knee down on both legs, larger on the right leg. The assessment was lymphedema "compounded with chronic venous stasis of the legs, apparently aggravated by inferior vena caval filter . . . by history his leg size got worse after the inferior vena caval filter was placed although he may have had some lower extremity swelling even prior to that." A workup was planned to include noninvasive vascular studies of the veins and CT scan of the abdomen. CT scan of the abdomen showed an IVC filter in place in an intrarenal position. The IVC caudal to this was occluded and markedly decreased in diameter. Cranial to the filter, the IVC appeared patent. The impressions were as follows: 1. IVC inferior to filter is not patent. This is consistent with occlusion of inferior IVC. 2. Multiple subcutaneous collaterals and edema is seen in the abdominal wall and thighs and multiple retroperitoneal collaterals. This is related to above. 3. Multiple lymph nodes are identified. These are non-specific. They may be reactive, related to inflammatory changes. Clinical correlation is recommended. A bilateral ultrasound of the lower extremities showed both legs markedly swollen, right worse than left. There was a small linear filling defect in the superior left common femoral vein. This was felt to be consistent with a thrombus; however, given the veteran's history it could represent an old thrombus. There was no evidence of deep venous thrombosis in the right lower extremity. In his February 1998 personal hearing, the veteran testified that after his surgery he now had shortness of breath, decrease in blood pressure, blood clots, increased swelling in his leg and difficulty walking none of which existed prior to his VA surgery. He described his hospitalization in February 1995, stating that he had been told by one of the doctors that he had a blood clot and he either had to take medicine the rest of his life or "we got a filter that we can put in and then you don't have to worry about taking this medicine." He hated medicine so he agreed to the procedure. The next day he went back to the room and was black from his knees all the way up under his chest. "I could not walk, I could not do [anything] and it never got any better. And they discharged me in that condition . . ." He added that his legs got a little bigger and before the surgery, he could walk and stand on them but now, if he stood up he would have to sit down in 30 minutes. Following a remand by the Board, a VA arteries and veins examination was conducted in February 1999. The veteran's current symptoms were severe heaviness and immobility of the lower extremities. He indicated that he was unable to drive his car, unable to walk normally, unable to climb stairs and generally he was immobile. His current treatment consisted of support hose of both lower extremities and topical medications for skin breakdown. On examination, there were markedly enlarged visible and palpable varicose veins of the lower trunk, the buttocks and thighs. There was brawny induration of both lower extremities with pigmentation and eczematous type changes. The edema was described as Board- like and persistent. The feet were swollen and red and the skin changes involving the right foot had the appearance of an "elephant foot." Color photographs were included showing the veteran to be substantially as described by the examiner. The diagnoses were (1) severe lymphedema and venous stasis of both lower extremities with secondary stasis pigmentation and eczema of both legs, markedly more severe on the right side, and (2) severe varicose veins of the lower trunk, buttocks and thighs. The examiner noted that both these diagnoses were "due to obstructive closure of [the] surgically placed inferior vena cava filter." The above examination only partly complied with the remand instructions contained in the Board's March 1997 remand and this case must be remanded again. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, although the veteran was provided an examination as instructed in the Board's remand, the examiner failed to address any of the questions posed to the examiner in that remand, other than to attribute the veteran's lymphedema and severe varicose veins to obstructive closure of the vena cava filter. In view of the foregoing, and without making any determination at this time as to whether the veteran's claim is well grounded, the case is REMANDED to the RO for the following: 1. The RO should return the claims file to the examiner who conducted the February 1999 VA arteries and veins examination. The claims folder and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. The examiner is specifically requested to review the veteran's medical history and give an opinion on the following question: Is it at least as likely as not that the veteran is more disabled than he would have been without the treatment he received by VA in February and March 1995 which included the insertion of an inferior vena cava filter? In answering the above question, the examiner should examine the surgical report which notes that the veteran had been noncompliant with his anticoagulant medication and had a high probability of pulmonary embolism. The examiner should provide a comprehensive report including complete rationale for all conclusions reached. Finally the examiner should address the veteran's claims that his shortness of breath, decrease in blood pressure, blood clots, increased swelling in his legs, and difficulty walking are caused by his VA surgical treatment. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Following completion of these actions, the RO should review the evidence and determine whether the veteran's claims may now be granted. If not, the veteran and his representative should be provided with an appropriate supplemental statement of the case. Thereafter, the case should be returned to the Board for further appellate consideration. No action is required by the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals