Citation Nr: 1120908 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-20 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for varicose veins of the right leg. 2. Entitlement to an initial rating in excess of 10 percent for residuals of a low back injury. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1988 to January 1989, May 1990 to February 1996, and October 2003 to February 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for varicose veins of the right leg with a 10 percent disability rating and service connection for a back injury (intervertebral disc syndrome) with a 10 percent disability rating. In March 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. During the March 2011 Travel Board hearing, the Veteran offered testimony on the issue of entitlement to service connection for a psychiatric disability. The Board observes that service connection for posttraumatic stress disorder (PTSD) was previously denied by an October 2008 rating decision that became final in October 2009 when the Veteran did not appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2010). Therefore, the Veteran's testimony is interpreted as an application to reopen a claim of entitlement to service connection for a psychiatric disability, to include PTSD. Claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition, the issues of entitlement to service connection for residual scars from surgery on service-connected varicose veins on the right lower extremity, and secondary service connection for a digestive disability resulting from medications taken for a service-connected low back disability, have been raised by the record. However, those issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over those issues, and they are referred to the AOJ for appropriate action. The issue of entitlement to a rating in excess of 10 percent for a service-connected low back disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The Veteran's varicose vein disorder of the right lower extremity is manifested by throbbing and fatigue after prolonged standing or walking, and intermittent edema. Symptoms are relieved by elevation of the right lower extremity or compression hosiery. The varicose vein disorder is not manifested by persistent edema that is incompletely relieved by elevation of the extremity. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for varicose veins of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.104, Diagnostic Code 7120 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the Veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Veteran, in written statements and testimony before the Board, asserts that his varicose vein disorder of the right lower extremity is more severe than contemplated by his current 10 percent disability rating. Specifically, the Veteran contends that his symptoms, which include itching, burning, swelling, and soreness in the right lower extremity, and cramping in his calf and ankle, warrant a disability rating in excess of 10 percent. The Veteran has also testified that he develops knots in his right lower extremity that he or his wife rub for relief, but which sometimes last up to five minutes before resolving. The Veteran's varicose veins are currently rated 10 percent under Diagnostic Code 7120. 38 C.F.R. § 4.014 (2010). A 10 percent rating is warranted for varicose veins manifested by intermittent edema of extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is warranted for varicose veins manifested by persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for varicose veins manifested by persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for varicose veins manifested by persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Finally, a 100 percent rating is warranted for varicose veins manifested by massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104 Diagnostic Code 7120 (2010). Service medical records dated from January 2004 to January 2005 show complaints of swelling, cramping, and soreness in the right leg related to varicose veins. In January 2004, the Veteran was treated for superficial phlebitis of the right leg. In January 2005, the Veteran reported that he still experienced swelling in his right leg, and varicose veins in the right lower extremity were noted. A review of VA treatment records dated from November 2002 to May 2009 are silent for complaints, symptoms, and treatment related to varicose veins. The Veteran's extremities were consistently noted to be without edema. The Board observes that although some of the above records do not show treatment during the relevant appeals period, those records have been considered, as it is essential to trace the medical history of the Veteran in considering the severity of a disability. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). 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 (2010); Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran was afforded a VA examination in March 2007. He reported treatment during active duty in May 1994 for a two-month history of varicose veins in the right leg that were causing poor circulation. He subsequently underwent vein surgery of the posterior calf from the popliteal fossa to the lower one-third of the leg. He was also seen in January 2004 for superficial phlebitis of the right lower leg, which was treated with Keflex, Mortrin, and moist heat. He reported that his condition had been stable since onset and treatment consisted of a stocking over the vein in his lower right leg when completing physical fitness testing. A history of vascular trauma was reported when the Veteran hit his right lower leg getting out of a tank recover vehicle. It caused the Veteran's leg to sting but he was not seen medically. There was no history of vascular neoplasm, aneurysm, arteriosclerosis obliterans, thromboangiitis obliterans, or arteriovenous fistula. At the time of the examination, the Veteran denied pain but reported feeling numbness in the right calf below the knee, as if his leg was asleep, once a week. The numbness developed after standing 35 to 40 minutes in one position and was improved with walking. He also indicated that his right leg was larger than his left leg. After prolonged walking or standing, the Veteran experienced additional symptoms of fatigue, throbbing, and a heavy feeling. His symptoms were relieved by elevation or compression hosiery. There was no history of angioneurotic edema or Raynaud's phenomenon or syndrome, nor were there symptoms relating to vascular disease. On physical examination, skin discoloration and edema were present, but there was no ulceration, stasis pigmentation, or eczema. The examiner noted that the Veteran had a previous resection of an accumulation of superficial veins on the posterior aspect of the upper one-third of the right lower leg. The examiner objectively noted an area of varicose veins that were 0.5 centimeters in diameter in an area measuring 5 centimeters by 7 centimeters located on the upper one-third posterior aspect of the right lower leg of the lesser saphenous venous system. Venous duplex of the right lower extremity revealed no evidence of deep venous thrombosis from the common femoral to popliteal regions. However, superficial and full compressible varicosities were noted in the calf region. The Veteran's right calf also measured one-quarter of an inch larger than the left calf. Based on the above, the examiner diagnosed varicose veins of the right lesser saphenous venous system. It was noted that the Veteran worked as a security officer and had missed one day of work due during the last 12-month period, which was the day of the VA examination. The examiner indicated that exercise and exertion were not precluded by the condition, though significant effects on occupational functioning were noted. Specifically, the examiner indicated that the Veteran should avoid prolonged standing in one place, walk, and wear support stockings on the right lower leg. The examiner opined that the Veteran could perform moderate physical and sedentary employment. In addition, the examiner indicated that the Veteran's varicose vein disorder had a mild effect on chores, exercise, and sports, and no effect on shopping, recreation, traveling, feeding, bathing, dressing, toileting, or grooming. The Veteran was afforded a second VA veins examination in March 2009. The Veteran's history of treatment for varicose veins and superficial phlebitis in the right lower extremity was detailed. It was noted that the Veteran's veins were more prominent than a year ago and were developing knots. He reported developing itching and burning after walking for one-half a mile, but was not affected by standing. The Veteran reported that his right lower leg was larger than the left after walking. The Veteran also reported edema that was not persistent and that was completely relieved by elevation of the extremity and rest. After prolonged walking or standing, the Veteran also experienced itching. This was relieved by elevation or compression hosiery. The Veteran denied pain. There was no history of vascular trauma, vascular neoplasm, aneurysm, arteriosclerosis obliterans, thromboangiitis obliterans, arteriovenous fistula, erythromelalgia, angioneurotic edema, or Raynaud's phenomenon or syndrome. On physical examination there was no ulceration or edema. There was stasis pigmentation or eczema measuring 6 centimeters by 9 centimeters located on the posterior right upper calf. It was also noted that the Veteran had tender varicose veins that were 0.8 centimeters in diameter in an area measuring 5.5 centimeters by 8 centimeters on the upper one-third of the posterior aspect of the right lower leg of the lesser saphenous venous system. Additionally, the Veteran's right calf measured one-half an inch larger than his left calf. Based on the above, the examiner diagnosed varicose veins of the right lesser saphenous system. It was noted that the Veteran still worked as a security officer and again, had missed only one day of work due to his disability during the last 12-month period, which was the day of the VA examination. The examiner indicated that the Veteran's condition did not preclude exercise or exertion, though the Veteran should avoid prolonged standing in one place, walk, and wear support stockings on the right lower extremity. The examiner opined that the Veteran could perform moderate physical and sedentary employment, but noted the Veteran's condition to have a significant effect on occupation; a mild effect on chores, exercise, and sports; and no effect on shopping, recreation, traveling, feeding, bathing, dressing, toileting, or grooming. After a review of the evidence, the Board finds that the Veteran's varicose vein disorder of the right lower extremity is most consistent with a 10 percent rating. The evidence shows visible varicose veins with intermittent edema and symptoms that are relieved with elevation of the right leg and compression stockings. The Board finds that the criteria for a higher rating have not been met, as the evidence does not show persistent edema incompletely relieved by elevation of the right leg. On the contrary, the Veteran statements and the medical evidence show right lower extremity edema that is intermittent and completely relieved with elevation of the right leg and rest. In short, the Board finds that the disability picture accords precisely with the criteria for a 10 rating, and the evidence does not demonstrate findings supportive of assignment of a higher rating at any time during the period under consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2010). However, the regulations also provide for exceptional cases involving compensation. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that VA shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2010). However, the Board finds in this case that the regular schedular standards are not inadequate. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). The Board finds that the competent evidence of record does not show that the Veteran's varicose vein disorder of the right lower extremity has been productive of frequent, or any, periods of hospitalization. Nor does the evidence show that his service-connected disability causes marked interference with employment beyond that envisioned by the schedular ratings already assigned. In fact, the only two days of work the Veteran reported missing in the 12-month periods prior to the VA examinations were the days he took off to attend the VA examinations. The Veteran has indicated in written statements and in testimony before the Board that he walks and plays occasional golf. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in November 2006 and December 2008; a rating decision in May 2007; and, a statement of the case in May 2009. Those documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006), Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the April 2010 supplemental statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Entitlement to a rating in excess of 10 percent for varicose veins of the right lower extremity is denied. REMAND Although the Board regrets the delay, additional development is needed prior to further disposition of the Veteran's claim for a rating in excess of 10 percent for a lumbar spine disability. The Veteran is currently in receipt of a 10 percent rating for a lumbar spine disability. The Veteran asserts that a higher rating is warranted based on the neurological and orthopedic symptoms of that service-connected disability. The Veteran was last afforded a VA spine examination in March 2009. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Although the last examination is not unduly remote, the Veteran indicated in a June 2009 substantive appeal that he was experiencing frequent pain in his right hip and lower back that had increased in severity. He also indicated that his flexibility had decreased and muscle spasms were occurring frequently. Additionally, in an April 2010 statement, the Veteran reported that his back injury kept him from exercising, which was not previously shown in the record. He also reported that his legs tingled and his back came out of alignment when he performed household chores, leaving him in pain for a couple of days. Because there may have been a significant change in the Veteran's low back disability since his last VA examination, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board also finds that remand is necessary in order to reconcile conflicting evidence. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). The VA examiner who conducted the March 2007 and March 2009 examinations diagnosed lumbar disc herniation on the right at L4-L5 with radiculopathy. A report from imaging of the lumbar spine in March 2007 appears to support such a diagnosis. However, an April 2009 computerized tomography (CT) scan indicated that no focal abnormality was seen to suggest a herniated disc. In view of the contradictory diagnostic findings, it remains unclear whether the Veteran suffers from radiculopathy stemming from a herniated disc in the lumbar spine. Accordingly, the Board finds it necessary to remand this case for an additional examination addressing all of the neurological components of the Veteran's service-connected low back disability in order to fully and fairly address the merits of his claim. In this regard, the Board also observes that the General Rating Formula for Disease and Injuries of the Spine specifically contemplates neurologic manifestations of spinal disabilities in the form of bowel and bladder impairment. 38 C.F.R. § 4.71a (2010). During the March 2007 and March 2009 VA examinations, the Veteran reported symptoms of a genitourinary disability including urinary frequency and nocturia. The examiner indicated on the examination reports that the etiology was not unrelated to his low back disability. However, the examiner provided no rationale or explanation for that determination. As it remains unclear to the Board whether the Veteran's genitourinary disability is related to his service-connected lumbar spine disability, the Board finds that a medical opinion is necessary in order to fairly decide the merits of the Veteran's claim. Finally, it appears that there may be outstanding VA medical records. The most recent VA treatment record in the claims file is dated in May 2009 and that record indicates follow up treatment in six months. Therefore, on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder all medical records from the VA Medical Center in Huntington, West Virginia, dated from May 2009 to the present. 2. After the above records have been obtained, schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected lumbar spine disability. The claims folder should be reviewed by the examiner, and the examination report should note that review. The examiner should provide a rationale for all opinions and reconcile the opinions with all pertinent evidence of record, including the Veteran's lay statements asserting that the orthopedic and neurological components of his service-connected lumbar spine disability have worsened. The examiner should also consider service medical records showing treatment for low back pain and VA medical records showing diagnoses of low back pain and sacroiliitis. Additionally, the examiner should reconcile the findings with the November 2006 lumbar spine imaging showing early degenerative changes in the facet joints; the March 2007 MRI of the lumbar spine showing disc herniation on the right at L4-L5 causing right lateral recess narrowing of the right L5 nerve root, and discogenic change; the March 2009 lumbar spine imaging showing mild degenerative changes; the April 2009 CT scan of the lumbar spine showing irregular appearance of the L4 inferior endplate but no focal abnormality suggestive of a herniated disc; and the March 2007 and March 2009 VA examiner's diagnoses of herniated disc at L4-L5 with radiculopathy. Specifically, the VA examiner's opinion should address the following: a. Identify all orthopedic pathology related to the Veteran's service-connected lumbar spine disability. b. Provide range-of-motion and repetitive motion findings of the lumbar spine, and state whether ankylosis is shown. c. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should also be noted. DeLuca v. Brown, 8 Vet. App. 202 (1995). If feasible, the determination should be portrayed in degrees of additional range of motion loss. d. State the length of the length of time during the past twelve months that the Veteran has had incapacitating episodes due to the lumbar spine disability. Incapacitating episodes are periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. e. State whether the Veteran's service-connected lumbar spine disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment. The diagnostic criteria applicable to nerve impairment distinguish the types of paralysis: complete and incomplete. Under incomplete paralysis, the degree of paralysis is further divided into the categories of mild, moderate, and severe. With those categories in mind, classify the Veteran's lumbar disability, distinguishing among the categories and using the results of all pertinent testing of record. Conduct any necessary sensory, reflex, and motor testing. If using results obtained from an EMG or nerve conduction velocity tests, or other such tests, explain, in terms meaningful to a layperson, the base line results versus those obtained for the appellant. Explain the meaning of any abnormal results that are obtained. f. State whether it is at least as likely as not (50 percent probability or greater) that any genitourinary disability, to include urinary frequency or nocturia, is related to the Veteran's service-connected lumbar spine disability. g. Discuss whether the Veteran's lumbar spine disability causes any additional functional impairment. h. State what impact, if any, the Veteran's lumbar spine disability has on his activities of daily living, including his ability to obtain and maintain employment. 38 C.F.R. § 4.10 (2010). 3. Then, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs