Citation Nr: 1127463 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 07-13 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for bilateral varicose veins, prior to March 19, 2009. 2. Entitlement to a rating in excess of 40 percent for varicose veins, right lower extremity, effective March 19, 2009. 3. Entitlement to a rating in excess of 40 percent for varicose veins, left lower extremity, effective March 19, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The Veteran's active duty service extended from October 1967 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2008, a hearing was held before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The transcript of the hearing is in the claims folder. In January 2009, the Board remanded the claim for an increased evaluation for bilateral varicose veins, rated as 30 percent disabling. Examination of the Veteran and readjudication under the current rating criteria was requested. The examination was completed in March 2009. On readjudication, the agency of original jurisdiction (AOJ) granted 40 percent ratings for each lower extremity, effective the date of the March 19, 2009 VA examination. Thus, we find that the remand development requested by the Board has been accomplished and we may proceed with our review of the appeal. We continue to consider the appeal because the rating is not the highest possible and the effective date is not the earliest possible. FINDINGS OF FACT 1. Prior to September 27, 2007, edema was not persistent in either lower extremity. 2. As of September 27, 2007, edema became persistent in the Veteran's right lower extremity. 3. As of September 27, 2007, edema became persistent in the Veteran's left lower extremity. 4. As of July 12, 2008, the Veteran's varicose veins resulted in eczema in his right lower extremity. 5. As of July 12, 2008, the Veteran's varicose veins resulted in eczema in his left lower extremity. 6. The Veteran's service-connected varicose veins of the right lower extremity do not have manifestations of persistent ulceration or massive board-like edema with constant pain at rest. 7. The Veteran's service-connected varicose veins of the left lower extremity do not have manifestations of persistent ulceration or massive board-like edema with constant pain at rest. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral varicose veins were not met prior to September 27, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7 and Code 7120 (1997, 2010). 2. The criteria for a 20 percent rating and no more for varicose veins, right lower extremity, were met as of September 27, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7 and Code 7120 (2010). 3. The criteria for a 20 percent rating and no more for varicose veins, left lower extremity, were met as of September 27, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7 and Code 7120 (2010). 4. The criteria for a 40 percent rating and no more for varicose veins, right lower extremity, were met as of July 12, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7 and Code 7120 (2010). 5. The criteria for a 40 percent rating and no more for varicose veins, left lower extremity, were met as of July 12, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7 and Code 7120 (2010). 6. The criteria for a rating in excess of 40 percent for varicose veins, right lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7 and Code 7120 (2010). 7. The criteria for a rating in excess of 40 percent for varicose veins, left lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.102, 4.7 and Code 7120 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) and subsequent legislation, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In a letter dated in February 2006 the RO provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. A March 2006 letter also provided notice regarding potential ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). These notice letters were provided before the adjudication of his claim in May 2006. VA has complied with the notice requirements of VCAA and has no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service medical records have been obtained. His available post-service treatment records have also been obtained. His Social Security Administration (SSA) medical records are in the claims folder. The Veteran has had a VA examination. He has also been afforded a hearing. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). The Board has considered all the evidence of record. Specifically, we have gone back at least a year before the date the claim was received, on January 10, 2006. See 38 C.F.R. §§ 3.157, 3.400(o) (2010). However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). The 30 percent rating for the postoperative residuals of bilateral varicose veins was effective March 1, 1983. That rating is now protected by law. 38 U.S.C.A. § 110 (West 2002). However, the rating criteria were changed in 1998 and any higher rating would have to meet the requirements of the new rating criteria. The new rating criteria no longer provide an evaluation for a bilateral condition but provide that each lower extremity will be rated separately and combined under the provisions of 38 C.F.R. § 4.25 (2010). We note that a 10 percent and a 20 percent rating would combine to 28 percent under section 4.25, while two 20 percent ratings would combine to 36 percent. Thus, to rate the disability under the new criteria requires at least a 20 percent rating for each lower extremity. The varicose veins are evaluated as 20 percent disabling when there is persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted when there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted when there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. The highest rating of 100 percent is not warranted unless there is massive board-like edema with constant pain at rest. Ratings are for involvement of one extremity. If more than one service connected extremity is involved, ratings are to be appropriately combined. 38 C.F.R. § 4.104, Diagnostic Code 7120 (2010). Persistent is defined as "insistently repetitive or continuous, tenacious, or enduring." Smith v. Principi, 17 Vet. App. 168 (2003) (citing Webster's II New College Dictionary). Discussion With the above criteria in mind, the Board has reviewed the record. The SSA records reflect a history of a right knee replacement as well as the fracture of the right femur in January 2003, which required several surgeries. Of note, at the time of an August 2003 surgical repair of the fracture is the report of a venous Doppler ultrasound study of the right lower extremity. There was good compressibility and augmentation seen at all levels. There was no evidence for a deep vein thrombosis involving the right lower extremity. The SSA records include examination notes from a private physician who first saw the Veteran in February 2004. He noted scars from previous surgery. There was slight bilateral pedal edema. The skin showed a pruritic rash over the incision line on the right lower extremity and left ankle. Subsequently, the skin was normal and the lower extremities were without pedal edema in October 2004, January 2005, and April 2005. The report of a January 2006 VA examination of the Veteran noted that he was disabled by his motor vehicle accident residuals. His extremities were remarkable for numerous well healed scars over the knees. There was a trace of pretibial edema, bilaterally, with some mild lower extremity varicosities. The dorsalis pedis pulses were strong in both feet. There was no evidence of neuropathy or lesion in the feet. The Veteran was examined by VA for his varicose veins and diabetes mellitus in April 2006. Among symptoms, the Veteran said the skin on his legs was brittle. He also gave a history of previous injuries. Examination disclosed bounding dorsalis pedis, posterior tibialis, and radial pulses. He had no real edema, but there was pretibial puffiness because of his obesity. He was noted to have some varicose veins of the calves and thighs. The skin was examined and no related changes were identified. There were no sores. The feet were warm. The diagnosis included varicose veins and history of vein stripping. The Veteran had a VA diabetic foot examination in July 2006. The feet showed normal findings. They were warm with no lesions. Dorsalis pedis and posterior tibial pulses were palpable. On diabetic foot examinations at the VA podiatry clinic, in May 2007, there was there were no skin abnormalities, pulses were present, and there was no evidence of edema or varicosities. When seen at the ambulatory care clinic, in September 2007, the Veteran's skin was clear and his extremities had no edema, cyanosis, or clubbing. A December 2007 VA podiatry clinic note shows that edema was present and there were no open lesions or erythema. There were similar findings in February 2008. When seen at the ambulatory care clinic in March 2008, the Veteran's skin was clear and his extremities were warm with no edema, cyanosis or clubbing. The Veteran had a VA examination for his diabetes mellitus on July 11, 2008. He reported that his legs were becoming heavy and had swelling, ulceration and edema. His medical history was reviewed. Skin examination disclosed a few small healed ulcerations on both legs. There was evidence of moderate varicose veins on both legs, with mild edema. Examination of the extremities showed them to be mottled due to varicose veins. There were dystrophic nails and edema. The temperature was normal. There were no ulcers. Dorsalis pedis and posterior tibial pulses were normal. The examination also disclosed peripheral edema due to the varicose veins. However, on the genitourinary portion of the examination, it was reported that there was no peripheral edema and pulses were again found to be normal. In November 2008, the Veteran appeared before the undersigned Veterans Law Judge and presented sworn testimony in support of his claim. The Veteran said that he was experiencing excessive edema, swelling. He reported that his legs were prone to getting ulcerated sores. He also reported dry flaky skin. His legs were said to ache a lot and have a burning sensation. The disability interfered with walking. If he sat too long, his legs hurt; and then were painful when he got up to walk. When he awoke, it took him 10 to 15 minutes to get to the point that he could walk around. It slowed down everything. He also told of changes in skin color, with them becoming very white and very mottled. His skin was very dry. The veins were starting to protrude. Flaking of the skin was like a constant dandruff. Ulcers were a recurring problem. They would appear as a dark spot every couple of weeks and require treatment with lotion. He wore anti-embolitic stockings on a daily basis, but wearing them too long made his legs hurt from the restriction. Elevation helped, but as soon as he started moving around, his legs began to swell. In addition to other information provided, the Veteran testified that the condition had become worse since his 2006 examination with more pooling of veins, worse edema, easier swelling, and more incidents of ulceration. On March 19, 2009, the Veteran was seen for a VA examination of his arteries and veins. The claims file was reviewed. The Veteran stated that, since his last examination, his left lower extremity varicose veins had become more prominent, especially behind the knee. He stated that the veins had become more painful by the end of the day. The left leg was more bothersome than the right. Treatment consisted of TED support stockings with fair effectiveness. The Veteran gave a history of post-phlebitic syndrome. He reported that his right and left lower legs were affected by persistent edema, persistent discoloration, and constant pain. There were symptoms of aching, throbbing, and heaviness after prolonged walking. Symptoms were relieved by compression hosiery. There was no ulceration. Examination revealed that both left and right lower extremities had massive board-like edema. There was stasis pigmentation or edema in the distal third to the feet. No ulceration was present. The varicose veins were markedly congested, soft, and minimally tender, with no palpable thrombus noted. Noninvasive vascular studies showed no deep vein thrombus and no superficial venous obstruction. Compressibility of all veins was noted. There was venous valvular insufficiency of the left common femoral and posterior tibial veins. Right and left lower extremity varicose veins were diagnosed. They would affect occupational activities by decreased mobility, lack of stamina, weakness or fatigue, and pain. They would have a moderate effect on chores and shopping, prevent exercise and sports, have a mild effect on recreation and traveling, and no effect on feeding, bathing, dressing, toileting, and grooming. Conclusion When the severity of a disability changes during the rating period, it is permissible to assign staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the AOJ has staged the ratings, continuing the 30 percent rating until the March 19, 2009 examination and assigning 40 percent rating for each lower extremity as of the date of the examination. The Board has reviewed the file to determine not only the proper rating but the proper time that the rating should be effective. As discussed above, a 20 percent rating for each lower extremity will result in a combined rating of 36 percent under 38 C.F.R. § 4.25. This would be higher than the previous 30 percent rating for a bilateral disability assigned under the previous rating criteria. For a 20 percent rating, there must be persistent edema. On the January 2006 VA examination, there was a trace of pretibial edema. On subsequent examination in April 2006, the examiner reported that there was some pretibial puffiness due to obesity but no real edema. When seen in May and September 2007, the medical personnel reported that there was no edema. It is not until December 2007 that we see edema as a persistent finding, being repeated in February 2008, July 2008 and March 2009. Although there was no edema in March 2008. Thus, it appears that edema became persistent sometime between September 2007 and December 2007. Giving the Veteran the benefit of the doubt, we find that edema became persistent following the September 26, 2007 examination and award a 20 percent rating for each lower extremity effective September 27, 2007. The next higher rating, 40 percent, requires, in addition to persistent edema, that there be skin changes such as stasis pigmentation or eczema, with or without intermittent ulceration. Here, again, the preponderance of medical evidence reflects a clear skin without stasis pigmentation or eczema in October 2004, January 2005, April 2005, April 2006, May 2007, September 2007, and March 2008. In July 2008, there were noted to be healed ulcer scars. In November 2008, at his Board hearing, the Veteran described eczema symptoms with a dandruff like flaking of skin from his legs. This testimony was credible and indicated that the eczema had been going on for a while. Therefore, it appears that the eczema developed sometime between the examination on July 11, 2008 and the hearing in November 2008. Again, giving the Veteran the benefit of the doubt, it appears that the earliest date that his varicose veins could have manifested eczema would be the day after the July 2008 examination. Consequently, we award 40 percent rating for each extremity as of July 12, 2008. The next higher evaluation, 60 percent, requires that, in addition to persistent edema or subcutaneous induration and stasis pigmentation or eczema, there must be persistent ulceration. In this case, both the medical findings and the Veteran's own testimony describe occasional ulceration that responds to treatment. There is nothing in the medical or lay evidence that describes persistent ulceration. Thus, the preponderance of evidence establishes that a rating in excess of 40 percent for each lower extremity must be denied. The Board notes that in March 2009, the examiner reported massive board-like edema, which is part of the criteria for a 100 percent rating. However, there must also be constant pain at rest. Neither the Veteran's testimony nor the medical findings describe such a manifestation in this case. In fact, the testimony was to the effect that rest relieved pain. Thus, we find that the criteria for the 100 percent rating are not met. In reaching these conclusions, the Board has applied the benefit of the doubt doctrine where applicable and finds that the preponderance of the evidence is against higher or earlier increased ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). Other Criteria and Extraschedular Rating The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2010) have been considered whether or not they were raised by the Veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2010). The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2010). While the Veteran may disagree, the preponderance of medical evidence shows that the disability manifestations are adequately compensated by the rating schedule. The evidence does not present such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this regard, the Board finds that there has been no showing by the Veteran that his service-connected varicose veins have resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. The mere assertion or evidence that a disability interferes with employment would not necessarily require extraschedular consideration. The rating schedule is itself based upon the average impairment of earning capacity due to diseases, and application of the schedule clearly recognizes that the rated disabilities interfere with employment. 38 U.S.C. § 1155. Accordingly, the fact that a disability interferes with employment generally would not constitute an "exceptional or unusual" circumstance rendering application of the rating schedule impractical. Rather, the provisions of section 3.321(b)(1) would be implicated only where there is evidence that the disability picture presented by a veteran would, in the average case, produce impairment of earning capacity beyond that reflected in VA's rating schedule or would affect earning capacity in ways not addressed in the schedule. VAOPGCPREC. 6-69 (Aug. 16, 1996). In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating in excess of 30 percent for bilateral varicose veins, prior to September 27, 2007, is denied. A 20 percent rating and no more for varicose veins, right lower extremity, is granted as of September 27, 2007. A 20 percent rating and no more for varicose veins, left lower extremity, is granted as of September 27, 2007. A 40 percent rating and no more for varicose veins, right lower extremity, is granted as of July 12, 2008. A 40 percent rating and no more for varicose veins, left lower extremity, is granted as of July 12, 2008. The above grants are subject to the laws and regulations governing the payment of monetary awards. A rating in excess of 40 percent for varicose veins, right lower extremity, is denied. A rating in excess of 40 percent for varicose veins, left lower extremity, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs