Citation Nr: 1121303 Decision Date: 06/01/11 Archive Date: 06/09/11 DOCKET NO. 05-35 638A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 40 percent for right leg varicose veins. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to May 1979 and from February 1981 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for right leg varicose veins and assigned a 10 percent rating effective June 30, 2003. In a June 2005 statement of the case (SOC), the RO increased the assigned disability rating to 40 percent, effective June 30, 2003. FINDING OF FACT Throughout the period on appeal, the Veteran's right leg varicose veins have not been manifested by persistent ulceration or subcutaneous induration. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for varicose veins of the right leg have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7120 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2010). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to the initial adjudication of the Veteran's claims, a letter dated in October 2003 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In the Veteran's April 2005 notice of disagreement (NOD), he took issue with the initial disability rating assigned and is presumed to be seeking the maximum benefits available under the law for each appealed issue. Dingess; see also AB v. Brown. Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a June 2005 SOC which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran's service treatment records, VA treatment records, private treatment records, and VA authorized examination reports have been associated with the claims file. The Board specifically notes that the Veteran was afforded VA examinations with respect to his disability. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's right leg varicose veins. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran is currently assigned a 40 percent rating under Diagnostic Code 7120, which provides that a 40 percent rating is assigned when varicose veins cause persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A higher 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation, or eczema, and persistent ulceration. A 100 percent rating is assigned for massive board-like edema, with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7121 (2010). C. Evidence The Veteran was afforded a VA examination in July 2004. He reported occasional swelling of the leg. Numbness and pain decreased after surgical intervention in 1998. He denied any significant effect on his ability to walk, though he did have "charley horses" that occurred every two months. He did not treat his condition. Examination of the right leg revealed positive superficial varicosities that were palpable. There was swelling of the right ankle. The Veteran had adequate dorsalis pedis and posterior tibialis pulses. VA treatment records dated December 2004 show the Veteran had a large ulcerated area on his right leg. There was a 7 cm. by 10 cm. patch with an erythematous base and scaling interior. There was no seeping or weeping, and no obvious sign of infection. There were additional satellite lesions surrounding this area. Records dated January 2005 show the Veteran ambulated with a steady gait. He stated that his right leg swelled after standing on it at work. There was a slight pedal edema noted in the right foot. The treating physician ordered t.e.d. hose for treatment. Additional records show the Veteran was seen again in February 2005. The Veteran did not describe claudication and walked without a limp on examination. He reported that his leg would bleed if he rubbed it. There was non-pitting edema on the lower leg. There was no evidence of classic symptoms or signs of deep vein thrombosis. In March 2005, the Veteran reported experiencing stasis ulcers intermittently over the years. He also had intermittent sharp shooting pains in his medial calf after long periods of standing or walking. He had a 3+ nonpitting edema with decreased xerosis and dishydrosis. In April and May 2005, the Veteran reported experiencing a grinding pain from his knee down to his foot. He had switched jobs and no longer had to stand at work. Stasis ulcers were noted to be nearly healed. Arterial examination showed no evidence of arterial occlusive disease at rest and no deep vein thrombosis. Nonpitting edema was noted to be down from 4 to 1+. There were 2 resolved stasis ulcers. Records dated December 2007 show the Veteran had mild xerosis and dishydrosis. An arterial study showed ankle brachial index to be greater than 1, and there was no evidence of arterial occlusive disease. In September 2008, the Veteran had an area of erythema and chronic edema involving the right tibial area. He had marked varicose veins extending into the inguinal fold on the right. There was an erythematous scaling dermatitis involving the right groin and extending down onto the right upper thigh. The Veteran was afforded a VA examination in November 2009. He reported swollen varicose veins on his right leg, which resulted in pain and cramping. The Veteran stated that he had not missed work in the past year due to his varicose veins. On examination, the Veteran had varicose veins on his right leg. There was stasis pigmentation/eczema on the right lower leg. There was no massive or board-like edema. There was no ulceration present. The examiner stated that the condition resulted in significant effects on the Veteran's occupation due to pain. There were moderate effects on activities such as exercise, sports and recreation. D. Analysis Based on the evidence of record, the Board finds that a rating in excess of 40 percent for varicose veins of the right leg is not warranted. As discussed earlier, a higher 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation, or eczema, and persistent ulceration. In this case, the evidence generated during the period on appeal does not correspond to the criteria for a higher rating. While there is a notation of stasis ulcers in 2005, there is no indication that the Veteran experienced persistent ulcers as contemplated by the 60 percent rating. Indeed, the Veteran reported in March 2005 that he experienced ulcers only intermittently, and the 2009 VA examination did not reflect any findings of ulcers. The evidence of record also makes no reference to subcutaneous induration. Therefore, a higher 60 percent rating is not warranted. The Board recognizes that the Veteran does experience intermittent ulceration associated with his right leg varicose veins, as well as other symptoms such as stasis pigmentation and pain. However, these symptoms are contemplated in the assigned 40 percent rating. Moreover, the 2009 VA examiner stated that there were moderate effects on activities such as sports, exercise and recreation. However, there were no identified effects on other activities, such as grooming, toileting, traveling, or performing chores. These findings are also more consistent with the assigned 40 percent rating. The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give statements about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as right leg pain and ulcers. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, as with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings. E. Extraschedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's varicose veins with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disabilities. Indeed, it does not appear from the record that he has been hospitalized at all for those disabilities. There is no persuasive evidence in the record to indicate that these service-connected disabilities on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating, as the Veteran indicated during his most recent VA examination that he had not missed any work due to his condition . The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disabilities have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER An initial rating in excess of 40 percent for right leg varicose veins is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs