Citation Nr: 1236924 Decision Date: 10/24/12 Archive Date: 11/05/12 DOCKET NO. 04-10 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to recognition of the appellant as a substituting party. 2. Entitlement to an initial disability rating greater than 20 percent for varicose veins of the right lower extremity, prior to May 7, 2007 (accrued benefits). 3. Entitlement to an initial disability rating greater than 20 percent for varicose veins of the left lower extremity, prior to May 7, 2007 (accrued benefits). 4. Entitlement to an effective date earlier than May 7, 2007, for the grant of a total rating based on individual unemployability (TDIU) (accrued benefits). REPRESENTATION Appellant represented by: Joseph R. Moore, Bergman & Moore, LLC WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from September 1947 to June 1952. The Veteran died in February 2012. The appellant is the Veteran's surviving spouse. These matters came before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision, in which the Department of Veterans Affairs Regional Office (RO) in Huntington, West Virginia granted service connection for bilateral varicose veins and assigned a 10 percent disability rating effective February 23, 1996, the date of the Veteran's claim. Subsequently, by rating decision dated in September 1997 the RO assigned a temporary total rating due to convalescence under the provisions of 38 C.F.R. § 4.30 , effective from March 27, 1996 to June 1, 1996, and a combined 30 percent rating, effective from June 1, 1996. In a March 2003 rating decision the RO assigned separate 20 percent ratings for varicose veins for each lower extremity, effective January 20, 1998. The Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing in July 2005. A transcript of this proceeding has been associated with the claims file. In a September 2005 decision, the Board denied entitlement to separate ratings greater than 20 percent for varicose veins of each lower extremity. The Veteran perfected an appeal of the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By a June 2006 Order, the Court granted a June 2006 Joint Motion for Remand (joint motion), vacating the Board's September 2005 decision and remanding the case to the Board to action consistent with the parties' joint motion. In October 2006, the Veteran was advised that the VLJ who had presided over the July 2005 hearing was no longer employed by the Board and he was informed of his right to have another hearing before another VLJ who would ultimately decide his appeal. However, the Veteran did not respond within the stipulated 30 days from the date of the letter; therefore, the Board has assumed that he does not want an additional hearing. The Board remanded the appeal for additional development in November 2006. In a January 2008 rating decision, the RO assigned separate 40 percent ratings for varicose veins of each lower extremity, effective May 7, 2007, the date of a VA examination. As increased ratings are available at each stage and the Veteran was presumed to seek the maximum available benefit for a disability, the claims for increased ratings remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Later, in a May 2008 rating decision, the RO, in pertinent part, granted a TDIU, also effective May 7, 2007. The Veteran perfected an appeal to the effective date assigned for the TDIU. In an October 2009 decision, the Board denied the Veteran's claims. In August 2010, the Board determined that the Veteran had been denied due process of the law as a September 2009 request for a stay of the appeal from the Veteran's attorney had not been associated with the claims file at the time of the October 2009 Board decision. Thus, the October 2009 decision was vacated. See 7104(a) (West 2002); 38 C.F.R. § 20.904(a) (2011). The case was remanded by the Board again in January 2011. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). In February 2012 VA was informed that the Veteran had died in February 2012, and accordingly the Board dismissed the Veteran's pending claim in a March 2012 decision. In August 2009, the appellant submitted a statement seeking entitlement to recognition as an appropriate substituting party. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in February 2012. 2. The appellant is the surviving spouse of the Veteran, and filed her request for substitution within one year of his death. 3. The Veteran filed a claim for service connection for bilateral varicose veins on February 23, 1996. 4. By rating decision dated in September 1996 the RO granted service connection for bilateral varicose veins and assigned an initial combined 10 percent rating, effective February 23, 1996, the date of his claim. This was continued by rating decision dated in June 1997. The Veteran disagreed with this decision and perfected an appeal. In a subsequent September 1997 rating decision, the RO assigned a temporary total rating due to convalescence under the provisions of 38 C.F.R. § 4.30, effective from March 27, 1996 to June 1, 1996, and a combined 30 percent rating, effective from June 1, 1996. In the October 1997 notice letter accompanying the September 1997 rating decision it was noted that the RO's actions were considered a complete grant of the Veteran's appeal and that the Veteran must inform VA within 60 days if he wished to continue the appeal. The Veteran did not respond to the October 1997 notice indicating that he wished to continue his appeal. 5. While the RO noted that their action in the September 1997 rating decision was considered a complete grant of the Veteran's appeal, the Board notes that as an increased rating for the Veteran's bilateral varicose veins appeal was still available and the Veteran was presumed to seek the maximum available benefit for his bilateral varicose vein disorder, the Veteran's appeal for a higher rating was not "withdrawn" as a result of the September 1997 rating action. AB, 6 Vet. App. at 38. 6. On January 20, 1999, the Veteran submitted a statement from Dr. A.R.P. noting an increase in severity in the Veteran's bilateral varicose veins. By rating decision dated in March 2003 the RO discontinued the single 30 percent rating for bilateral varicose veins and reclassified the Veteran's service-connected disability as two, separate disabilities-varicose veins of the right lower extremity and varicose veins of the left lower extremity and assigned each lower extremity a separate 20 percent rating, effective January 20, 1998, one year prior to the January 20, 1999 informal claim for an increased rating. 7. The Veteran appealed the March 2003 rating decision and in a January 2008 rating decision, the RO assigned separate 40 percent ratings for varicose veins of each lower extremity, effective May 7, 2007, the date of a VA examination. Later, in a May 2008 rating decision, the RO, in pertinent part, granted a TDIU, also effective May 7, 2007. 8. In April 1999 and September 2010 statements Dr. P.C. indicated that upon review of the claims file it was his opinion that the Veteran's peripheral venous disease (manifested by varicosities, recurrent phlebitis, and pain) had prevented him from securing gainful employment since at least April 1996, after a surgical procedure for the Veteran's bilateral varicose veins. 9. In a March 2011 VA examination report the examiner opined that the Veteran's varicose veins alone rendered him unable to follow a substantially gainful occupation since January 1998. 10. In an October 2011 VA addendum examination report the March 2011 VA examiner reviewed the claims file and, this time, opined that the Veteran's varicose vein disorder alone rendered him unable to follow a substantially gainful occupation since February 2005. 11. In November 2011 the Director of Compensation Service found that a review of the claims file was negative for evidence showing that the Veteran's bilateral varicose vein disorder prevented all types of substantially gainful employment for the time period covered in this review. Thus, pursuant to the November 2011 opinion, entitlement to a total rating for the Veteran's bilateral varicose veins on an extra-schedular basis for the period prior to May 7, 2007 was not established. 12. From February 23, 1996 to January 12, 1998, the manifestations of the Veteran's varicose veins of the right and left lower extremities more nearly approximated severe varicose veins, involving the superficial veins above and below the knee, with involvement of the long saphenous vein ranging over 2 centimeters in diameter, marked distortion and sacculation, with edema and episodes of ulceration, and no involvement of deep circulation. 13. Affording the Veteran the benefit of the doubt, entitlement to a total rating based on an extraschedular basis was first factually ascertainable February 23, 1996, the day of the Veteran's initial claim for service connection for a bilateral varicose vein disorder. 14. From January 12, 1998 (the date of a change in the rating criteria for varicose veins) to May 7, 2007, the manifestations of the Veteran's varicose veins of the right and left lower extremities more nearly approximated persistent edema and, at times, stasis pigmentation, with or without intermittent ulceration; they were not manifested by persistent edema and persistent ulceration or massive board-like edema with constant pain at rest. 15. As of January 12, 1998 the Veteran is in receipt of compensation for his service-connected bilateral varicose veins at 40 percent disabling for each extremity and a combined disability evaluation of 70 percent is in effect. These evaluations meet the schedular requirements for assignment of a TDIU. CONCLUSIONS OF LAW 1. The criteria for substitution in the case of an ongoing appeal have been met. 38 U.S.C. § 5121A (West 2002). 2. From February 23, 1996 to January 12, 1998, the criteria for a combined schedular rating of 50 percent as well as a total rating on an extraschedular basis for varicose veins of the bilateral lower extremities have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.104, Diagnostic Code (DC) 7120 (prior to January 12, 1998). 3. From January 12, 1998 to May 7, 2007, the criteria for a rating of 40 percent, and no higher, for varicose veins of the right lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321 , 4.1-4.7, 4.104, DC 7120 (2011). 4. From January 12, 1998 to May 7, 2007, the criteria for a rating of 40 percent, and no higher, for varicose veins of the left lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321 , 4.1-4.7, 4.104, Diagnostic Code (DC) 7120 (2011). 5. The criteria for assignment of an effective date of January 12, 1998, and no earlier, for the grant of a TDIU have been met. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior to his death, the Veteran was awarded a TDIU effective May 7, 2007, the day of a VA examination. The appellant now seeks to establish entitlement to an earlier effective date for a TDIU. Factual Background Service treatment records show that the Veteran experienced an onset of varicose veins during his active duty. A January 1981 discharge summary from a private hospital reflects that the Veteran was admitted for bilateral venous ligation and stripping of moderately severe varicosities, most marked on the left. Bilateral high-low and multiple point venous ligation and stripping was performed on January 7, 1981. A week later at discharge, his condition was noted to be improved. In December 1983 the Veteran had coronary artery bypass surgery performed at a private hospital. An April 1984 VA examination report reflects a history of severe varicose veins on both legs. He had had two episodes of thrombophlebitis and one episode of ulcer of the foot. Stripping of the varicose veins was done on both legs in 1981. The Veteran denied any leg pains, swelling, or ulcers of either leg following the 1981 surgery. The Veteran submitted a claim for service connection for bilateral varicose veins in February 1996. On March 27, 1996, the Veteran was admitted for complaints of swelling and pain in the left upper thigh of approximately one-week's duration. The Veteran had multiple medical problems, including superficial varicose veins, peripheral vascular disease (PVD), status post vein stripping of both lower extremities in 1981, coronary artery disease (CAD), hypertension, and status post coronary artery by-pass grafting (CABG) surgery in 1983. On admission he appeared to be in mild distress, due to pain in his left upper leg. Examination of the left leg revealed moderate edema, erythema, and mild rubor, mainly on the medial aspect with an enlarged cord extending from the inguinal area down to the knee. He underwent excision of the left superficial saphenous vein with thrombosis on April 8, 1996. After three days of observation, the wound was healing well and he was discharged on April 11, 1996. A May 1996 VA follow-up reflects that the surgery was successful and that the Veteran had no new complaints. He had varicose veins above and below his knees on both legs. During a June 1996 VA follow-up, the Veteran complained of his legs swelling and examination confirmed edema of the legs. During an August 1996 VA examination, the Veteran complained of leg, ankle and feet swelling; but no numbness or tingling sensation. He stated that he tired easily on walking and that his lower extremities swelled after walking a long distance, every day, and any time of the day. On examination, pulses were palpable down to the dorsalis pedis. Even though no bruits were noted; varicose veins were noted throughout both lower extremities. The Veteran had occasional limping from the left knee with walking, along with free movement of all extremities and good coordination. Reflexes and sensation were intact. His skin was warm to touch. The diagnoses included bilateral varicose veins of the lower extremities and status post bilateral vein stripping. In a late August 1996 VA skin examination report, the diagnoses included tinea pedis with onychomycosis, keratoses frozen with liquid nitrogen and ankle edema probably secondary to venous insufficiency. By rating decision dated in September 1996 the RO granted service connection for bilateral varicose veins and assigned an initial combined 10 percent rating, effective February 23, 1996, the date of his claim. This was continued by rating decision dated in June 1997. The Veteran disagreed with this decision and perfected an appeal. During a September 1997 RO hearing, the Veteran testified that he had pain and swelling in both legs due to his varicose veins; that he had had surgery on the left leg and thigh varicose veins in 1996; and that he had varicose veins above and below his knees in both lower extremities. In a subsequent September 1997 rating decision, the RO assigned a temporary total rating due to convalescence under the provisions of 38 C.F.R. § 4.30, effective from March 27, 1996 to June 1, 1996, and a combined 30 percent rating, effective from June 1, 1996. In the October 1997 notice letter accompanying the September 1997 rating decision it was noted that the RO's actions were considered a complete grant of the Veteran's appeal and that the Veteran must inform VA within 60 days if he wished to continue the appeal. The Veteran did not respond to the October 1997 notice indicating that he wished to continue his appeal. An October 29, 1997 VA primary care progress note reflects that the Veteran had varicose veins in the lower extremities; that pulses were 2+; and that no cyanosis or edema was noted in his extremities. Between January 1997 and January 1999, the Veteran was seen by VA primarily for degenerative joint disease, right shoulder problems, erectile dysfunction, hypertension, diabetes, and diabetic foot care. At a January 1999 VA primary care follow-up, the Veteran reported that he had been seen by a cardiologist at a private hospital, but the work-up and cardiac scans came back negative. He was placed on Vasotec and had no complaints at that time. On examination, there was no edema noted in his extremities; however, varicose veins were present. The findings were similar to those in May 1999 and January 2000. In a statement received by the RO on January 20, 1999, a private internist, Dr. A. R. P. noted that the Veteran had been having some bilateral leg and foot edema off-and-on, especially after prolonged standing and that he had a history of varicose veins. Dr. A. R. P. felt that the Veteran's edema was more related to varicosities since he had no evidence of congestive heart failure, renal disease, or any other systemic disease which could account for his edema. In a June 1999 statement, a private surgeon, Dr. W. H. E. indicated that the Veteran had had bilateral stripping and ligation of his greater saphenous veins many years ago; that he later had developed residual varicose veins over the years which were producing intermittent swelling and discomfort of both lower extremities; and that this was a life-long condition and basically would never actually be cured. Dr. W. H. E. added that the Veteran's condition could be controlled, however, with elevation and appropriate use of compression stockings; and opined that the Veteran's present condition was related to his original varicose vein problems and that this was quite common. Enclosed were copies of a June 1999 evaluation and of a lower extremity venous duplex scan, which revealed no evidence of deep vein thrombosis (DVT) of either lower extremity at that time. However, the scan also showed evidence of valvular incompetence of the bilateral common femoral and popliteal veins and of the right profunda femoral and superficial veins. Multiple incompetent perforator and residual varicose veins were noted, beginning in the distal calves on the right and left, that were referable to the Veteran's symptoms of pain, swelling, and bilateral varicose veins. In December 1999, following complaints of a possible blood clot in the left groin and pain and swelling of the left thigh of two-weeks' duration, the Veteran was hospitalized at a VA hospital overnight for observation to rule out DVT of the left leg. On examination, there was no evidence of DVT. A deep venous Doppler of the left lower extremity revealed no evidence of DVT. All deep veins were well visualized and compressible with normal flow and augmentation. The diagnoses included left lower extremity DVT, ruled out. When seen at a May 2000 VA primary care follow-up, the Veteran complained of left knee pain. On examination of the extremities, pulses were difficult to palpate-dorsalis pedis. No loss of vibration sense was noted. Varicose veins were present, no change in the last few years. During a September 2000 VA follow-up, the Veteran complained of left shoulder pain. On examination, dorsalis pedis pulses were not palpable. The posterior tibialis showed varicose veins and signs of PVD. At a January 2001 VA primary care evaluation, no cyanosis or edema of the extremities was found. It was difficult to palpate the dorsalis pedis and posterior tibial pulses. Varicose veins were noted but there was no loss of vibration sense. During a June 11, 2001 VA follow-up, no cyanosis or edema of the extremities was found. Varicose veins were present and appeared more than before. Dorsalis pedis and posterior tibial pulses were absent with no signs of compromise. There was decreased vibration sense in the distal one-third of the foot. Monofilament examination revealed decreased touch sensation. In June 2001, private treatment records covering the period from October 1998 to April 2001 were received from Dr. A. R. P. but showed no complaints or treatment for varicose veins. During a July 2001 VA peripheral nerves examination, the Veteran complained of recurrent pain and paresthesia of his feet, right worse than left. He was found to have varicose veins of both legs in 1979, and later had surgery done. The Veteran reported that he could walk better since the surgery, but still had intermittent swelling of his feet. He claimed that his legs would give way at times, causing him to fall. The Veteran reported that he had been using a cane to steady his gait since 1996. He claimed that he had stopped working as a carpenter in 1986, because of recurrent pain over the feet. On examination, motor power of the lower extremities showed fair flexion of his thighs and fair flexion and extension of his legs. He also had fair dorsiflexion of his ankles only to about 90 degrees. Sensory examination showed marked decreased pinprick sensation and decreased cold sensation over his feet and vibratory sense over his toes and ankles. The Veteran had better vibratory sense over the knees. He had intact pinprick sensation over his legs and thighs. Deep tendon reflexes showed no knee or ankle jerks on both sides. He could walk well slowly, but had some moderate difficulty on tandem walking with unsteadiness. No significant edema of his feet and ankles was noted. His right posterior tibialis and dorsalis pedis arterial pulses were not palpable. His left posterior tibialis and dorsalis pedis arterial pulses were well palpable. Varicose veins were noted over both legs. The impression included peripheral neuropathy affecting both lower extremities, right worse than left, considered related to chronic diabetes mellitus and associated ischemic neuropathy secondary to PVD. Aside from the sensory impairment and subjective pain over the feet with right worse than left, the Veteran also had poor circulation over the right lower extremity, which might contribute to his pain and numbness. March 2002 nerve conduction studies (NCS) showed bilateral sural sensory responses were unobtainable. Bilateral peroneal and left tibial motor studies were borderline to low CMAP amplitude, slow conduction velocity and prolonged F-wave. Contemporaneous electromyography (EMG) results were abnormal with evidence of diffuse sensorimotor neuropathy with demyelinating and axonal features. In an April 2002 statement, a private internist, Dr. I. A. K. R. noted that the Veteran's chief complaints were severe pain and discomfort, intermittent swelling of the legs and feet. He reported aching, along with fatigue while walking and tiredness in the legs and feet, heaviness of legs and feet, soreness and, at times, edema of the legs and feet. On examination, there were scars on the left thigh and varicosities of veins in both legs all the way down to the ankles and feet. There was no localized tenderness in the calf or bones of the legs. Tendon reflexes in the extremities showed poor response. Venous studies revealed no active blood clots. The impression was that the Veteran's symptoms of pain of legs and feet, intermittent swelling of legs and feet, and recurrent attacks of thrombophlebitis were long standing in nature. Varicosities of veins of the legs and feet for which he had had operations and had used conservative measures, but the Veteran's symptoms have continued and aggravated. Dr. I. A. K. R.'s advice was that the Veteran's condition was incurable and his symptoms would probably aggravate as time went on. During a November 2002 VA primary care visit, the Veteran's extremities showed no edema or cyanosis. Pulses and sensory were intact. Moderate varicosities were noted in both lower extremities, from the groin down to the ankles. Veins were enlarged and tortuous. No cords were noted. A claim for an increased rating for bilateral varicose veins was received by the RO on January 8, 2003, along with a September 2002 statement from Dr. I. A. K. R. in which she reiterated most of her April 2002 findings. Dr. I. A. K. R. recommended that conservative management be continued, that is, use of special stockings, plenty of rest to his legs and feet, and elevation of the Veteran's legs and feet quite often during the day. This physician added that the Veteran's disability was increasing progressively and was getting worse and that due to the varicosities of his legs and feet, the Veteran was permanently disabled, and would continue to have symptoms. During a March 2003 VA examination, the Veteran complained of recurrent chronic pain in the legs and fatigue after exertion secondary to pain and weakness. He stated that he had constant aching in the legs. His symptoms were improved somewhat with elevation and with use of elastic hose; however, the latter caused discomfort after being worn for a prolonged period of time. Pain was 3 on a scale from 1 to 10. On examination, multiple tortuous varicose veins were found in the upper left leg, which was worse than the right in the upper part of the leg. He had similar veins in the lower part of his legs, right worse than left lower leg. No cords were noted. Calf measurement was 16 inches for both legs. Multiple superficial varicosities were noted on both feet. Pedal pulses were equal. Sensory was intact. There was 1+/4+ edema of the lower extremities. Feet were warm to touch. The diagnosis was moderate to severe varicosities of the bilateral lower extremities with postphlebitic lower extremities. In a March 2003 rating decision, the RO discontinued the single 30 percent rating for bilateral varicose veins and reclassified the Veteran's service-connected disability as two, separate disabilities-varicose veins of the right lower extremity and varicose veins of the left lower extremity and assigned each lower extremity a separate 20 percent rating, effective January 20, 1998. In doing so, the RO considered a statement from Dr. A. R. P., submitted by the Veteran and received by VA on January 20, 1999, as the date of claim. Under 38 C.F.R. § 3.114, the increased ratings were allowed up to one year prior to the date of claim. At a February 2005 VA general surgery consult, the Veteran gave a history of developing varicosities in the left upper thigh since surgery performed in 1996. On examination, there was dilated and tortuous superficial veins on the left anterior medial thigh, which were soft to touch and showed no evidence of thrombus within them. There was no evidence of thrombophlebitis. There was evidence of varicosities in both lower extremities. TED stocking were recommended to be worn at all times, except while he was asleep. Without evidence of thrombophlebitis or clot formation and with normal deep venous study, an operation was not warranted or justified. During an April 2005 VA follow-up, the Veteran complained of electric shock-like pain on the medial aspects of both legs between the groin and the knee described as 7 on a scale of 1 to 10 and of a dull ache in both legs below the knee described as 3 on a scale of 1 to 10. He was concerned that the TED hose had not solved the problem and described pain in the left knee and both feet secondary to the stockings. The Veteran was also concerned that the stockings were causing pooling in the veins in his groin area just above the level of the TED elastic band. He indicated that the stockings and standing made the pain worse, while elevating his feet made the pain better. On examination, the Veteran's feet were cool and his toes erythematous (red) without edema. Neurological testing was grossly intact. The assessment was incompetent valves of superficial veins in lower extremities. Some adjustments to the TED stockings were recommended. In a July 13, 2005 VA general surgery clinic note, the Chief of Ambulatory Surgery indicated that he had seen the Veteran for incompetent perforators and superficial veins in the lower extremities; that the Veteran continued to have difficulty managing with the use of compression stockings, as he had so many veins; that the compression hose constricted the veins to the point where the Veteran's toes began to turn blue; that he continued to have unsightly veins that were causing him discomfort; and that, over a period of time, the Veteran would be unable to walk on his legs. This VA surgeon recommended either Ace bandages at the Veteran's comfort level or continued use of TED stockings with very little exercise and elevation of his legs most of the day. The VA surgeon added that surgery would not help and that the Veteran's veins had valid incompetencies both in the deep and superficial veins. At a January 2006 VA emergency room (ER) visit, the Veteran reported that he fell and thought that he had ruptured several varicose veins on the back of his left leg two days ago. He also had some knee pain and pain with walking and swelling on the lateral leg below the knee. The Veteran reported muscle cramps. On examination, he had pain on palpation of the left posterior knee without ecchymosis or abnormalities noted. The left leg had small varicosities with possible micro, but no obvious large, ruptures; possible mild edema of the lateral lower leg; and mild tenderness. Motor and sensory testing was normal. The assessment was left leg strain and varicose veins. During a June 2006 VA ER visit, the Veteran complained of varicose veins in both legs and having had a feeling of popping/warmth sensation in both lower legs a few days ago. He was worried about infection. He stated that he was unable to wear TED hose and that he wanted the red areas checked on his lower extremities. Pain was 4 on a scale of 1 to 10, dull and achy at the lower extremity sites. The Veteran had a history of diabetic foot ulcers in the past. On examination of the lower extremities, diffuse varicose veins and spider veins were noted bilaterally. There were small ecchymotic (discolored)/swollen areas at the anterior ankles bilaterally with no signs or symptoms of infection. No warmth to touch was noted. Edema of 1+ was found in both ankles. Except for decreased sensorium at both feet, neurological examination was normal. The assessment was ruptured varicose veins at ankles. At an August 2006 VA primary care follow-up, the Veteran complained that his varicose veins on his legs were becoming more painful especially when walking. The Salem VA Medical Center refused to do another surgery, and gave him compression stockings that they had to cut the toes out of as they turned blue due to the stockings. But the Veteran claimed that this did not help, but instead caused the veins to develop distally down the legs. He indicated that he was working at a job where he drove around to various tenants and collected rent. However, he had to quit this job because of the proliferation of varicose veins in his legs which were causing increased pain. He was using a cane and had to keep his feet elevated as much as possible to slow the progression of the condition. On examination, the Veteran walked with an antalgic gait using a cane and was in mild to moderate distress from pain. The left inner thigh had grossly distorted, tortuous varicose veins which ran downward behind the knee and encompassed the lower leg and calf area. The right leg was much the same but not quite as bad in the inner upper thigh area. The assessment was proliferative bilateral lower extremity varicose veins. At an October 2006 VA primary care follow-up, the Veteran complained that his varicose veins were spreading. When seen in January 2007, new stockings were requested from prosthetics. In a January 10, 2007 VA surgery clinic note, the VA surgeon recommended that the Veteran be considered disabled because he continued to have large varicosities all the way up to his left groin; however, his varicosities continued to bother and disable him. A March 2007 VA follow-up surgery note reflected that a Doppler ultrasound of the lower extremities done six months ago, showed normal deep veins with no evidence of thrombus. On examination, there were dilated and tortuous superficial veins which were soft to touch and showed no evidence of thrombus or of thrombophlebitis. There was also evidence of varicosities in both lower extremities. Subsequently, in a January 2008 rating decision, the RO assigned separate 40 percent ratings for varicose veins of each lower extremity, effective May 7, 2007, the date of a VA examination. Later, in a May 2008 rating decision, the RO, in pertinent part, granted a TDIU, also effective May 7, 2007. The Veteran's attorney contends that the Veteran is entitled to separate 40 percent ratings for varicose veins of both lower extremities and a TDIU (or an extraschedular TDIU) for the period from March 23, 1996 to May 7, 2007. Based on the above procedural history, however, the period under consideration is from January 20, 1999 to May 7, 2007. In an April 2009 statement Dr. P.C. wrote that he had reviewed the Veteran's medical records. He noted that the Veteran was known to have suffered from debilitating pain in his bilateral lower extremities secondary to chronic venous varicosities (varicose veins). Despite saphenous vein stripping of both legs in 1981 and subsequent superficial vein excision in April 1996, his symptoms of leg pain persisted. Since surgical options were exhausted, the Veteran attempted conservative therapy with little or no improvement in his pain, and noticeable worsening of his symptoms with walking or prolonged sitting. It was clear from a September 2002 private treatment note from Dr. R. that the Veteran's symptoms were worsening and would continue to progress despite conservative treatment. This, according to Dr. P.C., was not an uncommon occurrence. In fact, occupations associated with either prolonged standing or sitting are also associated with an increase in the prevalence of varicose veins. The sequelae of venous valvular incompetence can be exacerbated by the increase in hydrostatic pressure owing to prolonged standing and a reduction in the function of the calf muscle pump associated with sitting or immobility. Multiple medical records indicated continued problems with varicose veins after his surgery in 1996, and in his note from August 2006, Dr. C., the Chief of Ambulatory Surgery, suggested that the Veteran was even at risk of losing both of his legs in the near future. Dr. P.C. also indicated that he reviewed the lay statements from the Veteran's wife and neighbor that confirm that his varicose veins (an easily identifiable malady by most laypersons) were a significant source of pain (due in part to significant swelling or edema) and certainly affected his activities of daily living for many years. His personal physician, Dr. R., also confirmed that the Veteran's varicose veins had caused him pain and trouble walking for 20 years. Dr. P.C. indicated that after a review of the Veteran's medical records and medical history, including the lay evidence from close friends and family who were able to observe his varicose veins, it was Dr. P.C.'s opinion that the Veteran's varicose veins had prevented him from gainful employment since at least the time of his April 1996 surgery. In a September 2010 statement Dr. P.C. wrote that he had again reviewed the Veteran's medical records. He noted that, as in a previous April 2009 statement, the Veteran was known to have suffered from debilitating pain in his bilateral lower extremities secondary to chronic venous varicosities (varicose veins). Dr. P.C. wrote that the Veteran's issues were well documented in the chart going back to 1981 when he underwent bilateral venous ligation and vein stripping at Maryland General Hospital. In March 1996 the Veteran was admitted to a VA medical venter with swelling in his legs. He eventually underwent excision of his left superficial femoral vein secondary to his varicosities and superficial thrombophlebitis. It was noted in the history that the Veteran had, "... a long history of peripheral vascular disease..." On physical examination, the treating provider noted, "Peripheral pulses and carotids are equal." During a follow-up examination in August 1996, the provider again noted that , "Pulses were palpable down to the dorsalis pedis" and "No brutis were noted." Dr. P.C. wrote that it was important to clarify the term "peripheral vascular disease," which may refer to disease involving the peripheral arterial or venous systems. "Peripheral arterial disease" is diagnosed with a test called an ankle-brachial index or angiography. In the lower extremities, it is characterized by decreased pulses and arterial bruit (neither of which were present at the time of the Veterans' examination in 1996). Peripheral "venous" disease is characterized by varicose veins, chronic venous insufficiency and recurrent superficial thrombophlebitis (all of which were present in 1996). Dr. P.C. indicated that upon reviewing the 1996 records, the term "peripheral vascular disease" was truly referring to the Veterans' service-connected peripheral venous disease and not peripheral arterial disease. Dr. P.C. further indicated that it was clear from the medical records that the Veteran had other nonservice-connected conditions such as coronary artery disease, hypertension, and diabetes. While these were reportedly important factors in the Veteran's overall health, the simple fact was that none of these nonservice-connected disorders directly cause the kind of pain, swelling, and thrombophlebitis that resulted in the Veteran's inability to find gainful employment. Peripheral venous disease as manifested by venous varicosities can cause significant pain and may necessitate limitation of daily activities. The Veteran failed aggressive surgical treatment on multiple occasions was a clear indicator of severe peripheral venous disease. Especially when prolonged standing, lifting or walking is involved, varicosities may render an individual unemployable. A vocation of any type would certainly be adversely affected by this severe condition. In summary Dr. P.C. opined that, after reviewing the Veteran's entire claims file, the Veteran's peripheral venous disease (manifested by varicosities, recurrent phlebitis, and pain) has prevented him from securing gainful employment since at least April 1996. Pursuant to the January 2011 Board remand the Veteran was afforded additional VA examinations to determine when the Veteran's varicose veins rendered him unable to follow a substantially gainful occupation. The Veteran was afforded a VA arteries and veins examination in March 2011 and the examiner reviewed the claims file in connection with this examination. The examiner indicated that the particular VA medical facility where he worked had no vascular clinic or vascular surgeon to examine the Veteran. The examiner indicated that he was only a C&P (compensation and pension) physician, but that he had been working as a physician for seven years and believed that his opinion would help the Board. The examiner indicated that the Veteran reported that he worked in construction or as a carpenter from 1955 to 1986. He suffered a heart attack in 1983 and underwent coronary artery bypass grafting. Subsequently, he quit the job, mainly due to his bilateral leg heaviness and leg tiredness as well as his heart disorder. The Veteran's varicose veins reportedly did not interfere with his activities of daily living. The Veteran reported that sometime between January 1998 and May 2007 he tried to work as a rent collector in a multi-story apartment complex. This job required that he climb up and down stairs which resulted in leg tiredness. He also developed leg swelling at the time. Therefore, he quit his job because of his varicose veins of both lower extremities at that time. He also reported that sitting in a chair for prolonged periods of time aggravated his bilateral leg disorder. Thus, the VA examiner opined that the Veteran was unemployable from January 1998 to May 2007 because of his bilateral varicose veins of both lower extremities. The examiner also noted that the Veteran suffered from nonservice-connected diabetic peripheral neuropathy but opined that the Veteran's varicose veins alone rendered him unable to follow a substantially gainful occupation since at least January 1998. Subsequently, an addendum to the March 2011 VA examination report was provided by the original March 2011 VA examiner in October 2011 to clarify the date regarding the Veteran's unemployability. This report concludes that the Veteran's varicose vein disorder "got worse" in February 2005. Since then, the October 2011 examiner opined that the Veteran's varicose vein disorder alone rendered him unable to follow a substantially gainful occupation. It appears that the February 2005 date is based on either a February 2, 2005 VA surgical note wherein the Veteran complained of bilateral leg pain and fatigue or a February 9, 2005 VA note indicating that the Veteran's varicose veins would not improve with surgery. The October 2011 VA examiner also noted that the Veteran's nonservice-connected diabetic peripheral neuropathy had nothing to do with his varicose veins of the bilateral lower extremities. Thereafter, the RO referred this claim to the Director of Compensation and Pension service to determine whether the Veteran met the criteria for a total extraschedular rating under 38 C.F.R. § 4.16 prior to May 7, 2007. In a November 2011 response the Director of Compensation Service wrote that, upon review of the claims file, there was no objective evidence from previous employers indicating why the Veteran stopped working or whether there was marked interference with previous employment prior to May 7, 2007. Significantly, the opinion indicated that the evidentiary record did not demonstrate that the symptomatology consistently associated with the service-connected varicose veins had not been wholly contemplated by the criteria utilized to assign the evaluations for the period of this review. It was indicated that the evidence did not show that the Veteran's varicose veins prevented all types of substantially gainful employment for the time period covered in this review. Thus, entitlement to a total rating for the Veteran's bilateral varicose veins on an extra-schedular basis for the period prior to May 7, 2007 was not established. A review of the claims file shows a February 2011 statement from the Veteran indicating that he last worked in 1986. Also included is a purported "SSIS" statement showing that the Veteran last reported income in 1986. The Veteran indicated that he tried to work in 2006 but could not handle walking/standing for long periods of time and ended up not making any money. Substitution Analysis The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title...." In this case, the Veteran died in February 2012 and in March 2012 the Board dismissed the Veteran's pending claims. VA received notice from the appellant in March 2012 that she was seeking Dependency and Indemnity Compensation as well as service connection for the cause of the Veteran's death. In September 2012, the RO determined that the appellant is the surviving spouse of the Veteran, and was married to the Veteran for at least one year at the time of his death, and thus is a dependant eligible to seek substitution regarding his pending claim. A document of record indicates that the Veteran was married to the claimant in November 1998, more than one year prior to his death in December 2008. Furthermore, as the appellant filed her application for substitution less them one year after the Veteran's death, the Board finds she has met the requirements for substitution in the case of death under 38 U.S.C.A. § 5121A (West 2002). Increased Rating Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When rating the service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). "Staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Effective January 12, 1998, there was a change in the criteria used to evaluate varicose veins that allowed for a separate evaluation for each leg. Prior to this change both legs were evaluated together. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C.A. § 5110(g) ; DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, neither set of amendments may be applied prior to its effective date. As of those effective dates, the Board must apply whichever version of the rating criteria is more favorable to the veteran. Under the provisions of DC 7120, pertaining to ratings for varicose veins, in effect prior to January 12, 1998, moderate varicose veins, where there were varicosities of superficial veins below the knees, with symptoms of pain or cramping on exertion, either bilaterally or unilaterally, warranted a 10 percent rating. Moderately severe varicose veins, where there was bilateral involvement, involving the superficial veins above and below the knee, with varicosities of the long saphenous vein ranging in size from 1 to 2 centimeters in diameter, with symptoms of pain or cramping on exertion and no involvement of deep circulation, warranted a 30 percent rating. Severe varicose veins, involving the superficial veins above and below the knee, with involvement of the long saphenous vein ranging over 2 centimeters in diameter, marked distortion and sacculation, with edema and episodes of ulceration, and no involvement of deep circulation, warranted a 40 percent (unilateral) or 50 percent (bilateral) rating. Pronounced varicose veins manifested by the findings for a severe rating with secondary involvement of the deep circulation, as demonstrated by Trendelenburg's and Perthe's tests, with ulceration and pigmentation, warranted a 50 percent (unilateral) and 60 percent (bilateral) rating. 38 C.F.R. § 4.104, DC 7120 (in effect prior to January 12, 1998). Since January 20, 1998, the Veteran's service-connected varicose veins of the right and left lower extremities have been evaluated under revised DC 7120. Under the revised diagnostic code, a 20 evaluation is warranted for persistent edema, incompletely relieved by elevation of an extremity, with or without beginning stasis pigmentation or eczema. A 40 percent evaluation is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A maximum 100 percent rating is warranted for massive, board-like edema with constant pain at rest. 38 C.F.R. § 4.104, DC 7120 (in effect from to January 12, 1998). In light of the above and after careful review of the evidence of record, the Board finds that a combined rating of 50 percent is warranted for the Veteran's bilateral varicose veins prior to the January 12, 1998 regulation change. As above, under the pre-January 12, 1998 DC 7120, severe varicose veins, involving the superficial veins above and below the knee, with involvement of the long saphenous vein ranging over 2 centimeters in diameter, marked distortion and sacculation, with edema and episodes of ulceration, and no involvement of deep circulation, warranted a 40 percent (unilateral) or 50 percent (bilateral) rating. The March 27, 1996 VA hospitalization report shows excision of the left superficial saphenous vein with thrombosis. A May 1996 VA follow-up shows that the Veteran had varicose veins above and below his knees on both legs. During a June 1996 VA follow-up, the Veteran complained of his legs swelling and examination confirmed edema of the legs. As for the potential for an even higher rating prior to January 12, 1998 the Board notes that there is no indication of secondary involvement of the deep circulation either prior to or beginning January 12, 1998. As such, the criteria for a combined 60 percent rating for the Veteran's bilateral varicose veins is not warranted prior to January 12, 1998. With regard to the period of time after the January 12, 1998 regulation change the Board finds that separate ratings of 40 percent for the Veteran's lower extremity varicose veins, prior to May 7, 2007 are warranted. As above, under the post-January 12, 1998 criteria, a 40 percent evaluation is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. As above, in a January 1999 statement, Dr. A. R. P. indicated that the Veteran had bilateral leg and foot edema "off and on," especially after prolonged standing. In an April 2002 statement, Dr. I. A. K. R. indicated that physical examination revealed varicosities of veins of the lower extremities, all the way down to the ankles and feet. She noted the findings made in venous studies and that Dr. W. H. E. was correct that the Veteran's condition was a chronic one without any cure. Dr. I. A. K. R. stated it would probably get worse. In a September 2002 follow-up letter, Dr. I. A. K. R. reiterated that the Veteran's symptoms would only get worse in time. She attributed his complaints of tiredness, fatigue, edema, and pain to the varicose veins of the lower extremities and multiple attacks of thrombophlebitis. She added, "Essentially speaking, he can use special stockings, give plenty of rest to his legs and feet, and he might have to elevate his legs and feet quite often during the daytime." Dr. I. A. K. R. concluded she had no other suggestions to assist with these problems and stated the Veteran was "permanently disabled." A March 2003 VA examination report shows 1+/4+ edema of the lower extremities. The diagnosis was moderate to severe varicosities of the bilateral lower extremity with postphlebitic lower extremities. A July 2005 VA outpatient treatment report reflects that the Veteran reported he was having difficulty with the compression hose and how they would turn his toes blue. The examiner stated that the hose were causing the Veteran discomfort and that over a period of time, "he will be unable to walk on these legs." He described the Veteran's varicose veins as unsightly and that the Veteran had incompetencies both in the deep and superficial veins. As for the potential for an even higher rating, the Board notes that under the post-January 12, 1998 criteria, a 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. In this case there is no evidence of subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. No medical professional, either VA or private, has stated the lower extremities show stasis pigmentation or eczema. The Veteran himself has also not reported any discoloration of the lower extremities. Thus, his symptoms do not approximate those contemplated for a 60 percent rating for each lower extremity. Earlier Effective Date/TDIU/Total Rating Analysis The effective date of an award of disability compensation to a veteran will be the day following separation from active service or date entitlement arose if the claim is received within one year of separation from active service; otherwise, it will be the date of receipt of claim, or the date when entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). A claim is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). As above, by rating decision dated in January 2008 the RO assigned separate 40 percent ratings for varicose veins of each lower extremity, effective May 7, 2007, the date of VA examination. Later, in a May 2008 rating decision, the RO, in pertinent part, granted a TDIU, also effective May 7, 2007. The Veteran disagreed with the effective date assigned. The Veteran submitted a claim for service connection for bilateral varicose veins in February 1996. By rating decision dated in September 1996 the RO granted service connection for bilateral varicose veins and assigned an initial combined 10 percent rating, effective February 23, 1996, the date of his claim. This was continued by rating decision dated in June 1997. The Veteran disagreed with this decision and perfected an appeal. In a subsequent September 1997 rating decision, the RO assigned a temporary total rating (TTR) due to convalescence under the provisions of 38 C.F.R. § 4.30, effective from March 27, 1996 to June 1, 1996, and a combined 30 percent rating, effective from June 1, 1996. In the October 1997 notice letter accompanying the September 1997 rating decision it was noted that the RO's actions were considered a complete grant of the Veteran's appeal and that the Veteran must inform VA within 60 days if he wished to continue the appeal. The Veteran did not respond to the October 1997 notice indicating that he wished to continue his appeal. While the RO noted that their action in the September 1997 rating decision was considered a complete grant of the Veteran's appeal, the Board notes that as an increased rating for the Veteran's bilateral varicose veins appeal was still available and the Veteran was presumed to seek the maximum available benefit for his bilateral varicose vein disorder. As such, the Veteran's appeal for a higher rating for his bilateral varicose veins was not withdrawn as a result of the September 1997 rating decision and has been pending since 1997. AB, 6 Vet. App. at 38. Thus the Board has construed February 23, 1996 as a claim for a total rating. Having determined that February 23, 1996, is the date of claim for purposes of assigning an effective date, the Board must now look to the evidence to determine when it was "factually ascertainable" that the criteria for a total rating were met beginning February 23, 1996. TDIU ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). It is clear from the language of this regulation that what is contemplated as marginal employment is employment that does not accord the veteran a living wage. See Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991) [for the purposes of 38 C.F.R. § 4.16(a), substantially gainful employment suggests a living wage]. Marginal employment may also be considered to exist when income exceeds the poverty threshold but is earned, for example, in a protected environment, such as a family business or sheltered workshop. Id. Consideration shall be given in all claims to the nature of the employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Veteran's service-connected disabilities presently include bilateral varicose veins (currently 40 percent disabling for each extremity beginning January 12, 1998, 50 percent disabling combined from June 1, 1996 to January 12, 1998, 100 percent disabling combined from March 27, 1996 to June 1, 1996, and 50 percent disabling combined from February 23, 1996 to March 27, 1996) and residual granuloma of the left forearm and (zero percent disabling). Significantly, a TDIU has been assigned as of May 7, 2007, the date of a VA examination showing an increase in severity in the Veteran's varicose vein disorder, that allowed for separate 40 percent evaluation for bilateral varicose veins. By assigning the separate 40 percent evaluation as of May 7, 2007, the RO increased the Veteran's combined evaluation from 40 percent to 70 percent, effective from May 7, 2007. See 38 C.F.R. § 4.25. In other words, the 40 percent separate evaluations were the factual predicate that ultimately satisfied the percentage requirements for TDIU, which was granted in the May 2008 rating decision. As noted above, the Board has now granted separate 40 percent evaluations for bilateral varicose veins effective January 12, 1998. Furthermore, there is evidence that the Veteran was unemployable due to his bilateral varicose veins as early as April 1996. As such, the Board finds that the criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met beginning January 12, 1998. While the Veteran did not meet the schedular criteria for a TDIU prior to January 12, 1998, there is evidence dated prior to January 12, 1998 that calls into question the Veteran's ability to secure or follow substantially gainful employment due to his service-connected bilateral varicose veins. As above, the Veteran has been unemployed since 1986. While it appears that he attempted to work in 2006, he has indicated that he could not handle walking/standing for long periods of time and ended up not making any money. Also, in April 1999 and September 2010 statements Dr. P.C. indicated that upon review of the claims file it was his opinion that the Veteran's peripheral venous disease (manifested by varicosities, recurrent phlebitis, and pain) had prevented him from securing gainful employment since at least April 1996, after a surgical procedure for the Veteran's bilateral varicose veins. While the Director of Compensation Service found in November 2011 that a review of the claims file was negative for evidence showing that the Veteran's bilateral varicose vein disorder prevented all types of substantially gainful employment for the time period covered in this review and thus found that entitlement to a total rating for the Veteran's bilateral varicose veins on an extra-schedular basis for the period prior to May 7, 2007 was not established, the Board has the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability after referral to the Director of Compensation Service. Bowling, 15 Vet. App. at 1. In the present case, the Veteran separated from active service in April 1952. He did not submit a claim of entitlement to service connection for bilateral varicose veins within one year from his discharge. There is no evidence that he filed a claim for service connection for bilateral varicose veins until February 23, 1996. Based on the foregoing, any effective date awarded in the present case must be later than February 23, 1996. Also, while the record shows that the Veteran has been unemployed since 1986, the earliest indication of unemployability due to his bilateral varicose veins is April 1996, following his surgery for varicose veins. While the evidence shows unemployability due to the Veteran's varicose veins since April 1996, the Veteran was in receipt of a temporary total rating due to convalescence under the provisions of 38 C.F.R. § 4.30, effective from March 27, 1996 to June 1, 1996. Thus, there is no entitlement to an effective date earlier than June 2, 1996 for a total rating. However, affording the Veteran the benefit of the doubt the Board has assigned a total rating on an extraschedular basis as of February 23, 1996. In this case the Veteran is already in receipt of a total rating as of March 27, 1996, approximately one month after he filed his claim for service connection on February 23, 1996. The Board notes that the Veteran presented to a VA hospital on March 27, 1996 with significant complaints regarding his bilateral varicose veins that ultimately required surgery and finds that it is more likely than not that the severity of the Veteran's bilateral varicose vein disorder demonstrated on March 27, 1996 was also present on February 23, 1996, the date of his claim for service connection. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Substantially compliant notice was sent in December 2006 and February 2008 letters and the claim was readjudicated in a March 2009 statement of the case and January 2008, April 2009, June 2009, July 2009, August 2009, and November 2011 supplemental statements of the case. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a private attorney throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, obtained medical opinions as to the onset and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER The appellant is substituted for the Veteran in the matter of the pending earlier effective date appeals at the time of his death. From February 23, 1996 to January 12, 1998, the criteria for a combined schedular rating of 50 percent as well as a total rating on an extraschedular basis for varicose veins of the bilateral lower extremities have been met. From January 12, 1998 to May 7, 2007, the criteria for a rating of 40 percent, and no higher, for varicose veins of the right lower extremity have been met. From January 12, 1998 to May 7, 2007, the criteria for a rating of 40 percent, and no higher, for varicose veins of the left lower extremity have been met. An effective date of January 12 1998, and no earlier, for the grant of a TDIU is warranted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs