Citation Nr: 1300173 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-42 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Whether it was appropriate to reduce the disability rating to 30 percent for bilateral varicose veins. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to March 1988. This appeal to the Board of Veterans' Appeals (Board) is from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which reduced the evaluation of the Veteran's service-connected bilateral varicose veins to 30 percent, effective August 1, 2009. The issue of entitlement to a separate compensable rating for an associated right phlebectomy scar, has been raised by the record (see December 2011 Informal Hearing Presentation), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The RO complied with the procedural requirements for reducing the Veteran's disability rating, to include proper notification of the proposal to reduce the disability rating and giving him an opportunity to submit evidence. 2. When the RO established service-connection for bilateral varicose veins, in a January 1990 rating decision, an initial 30 percent rating was assigned. Following a January 2007 increased rating claim, the RO assigned separate 20 percent ratings for the Veteran's right and left lower extremities, in a March 2007 rating decision. Subsequently, in a July 2007 rating decision, the RO increased the evaluation of the right lower extremity to 40 percent. 3. The Veteran's varicose veins' separate 40 percent (right lower extremity) and 20 percent (left lower extremity) ratings had been in effect for less than five years at the time they were reduced. 4. In a May 2009 rating decision, the RO reduced the Veteran's separate ratings to a single, combined 30 percent for bilateral varicose veins. 5. The Veteran demonstrated actual improvement in his varicose veins, such that he no longer met the criteria for his prior 40 and 20 percent ratings for his right and left lower extremities; rather, his symptoms more closely approximated the current criteria for a 10 percent rating for varicose veins. 6. The Veteran's varicose veins of his bilateral lower extremities are productive of intermittent edema and pain with prolonged standing or walking that is relieved with elevation and compression hosiery but not by persistent edema incompletely relieved by elevation of the leg. The February 2009 VA examiner found no varicose veins in his right leg, and no edema or stasis dermatitis, inflammation, induration or ulceration in either leg. The examiner also found his varicose veins do not interfere with his work or activities of daily living. 7. Because the Veteran had been minimally compensated at the 30 percent level for bilateral varicose veins for over 20 years at the time the reduction became effective, he thus has a protected 30 percent rating. CONCLUSIONS OF LAW 1. The RO satisfied the procedural requirements governing the reduction in ratings prior to effectuating its May 2009 rating decision implementing the proposed reduction for bilateral varicose veins. 38 C.F.R. § 3.105(e) (2012). 2. The reduction of the Veteran's disability rating to 30 percent for bilateral varicose veins was warranted, and the requirements for restoration have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.344, 3.951(b), 4.2, 4.10, 4.13, 4.104, Diagnostic Code 7120 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify under 38 C.F.R. § 3.159(b)(1) has been met by letters from the RO issued in February and April 2007 of the criteria for establishing higher evaluations, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded, in compliance with Dingess. These letters accordingly addressed all notice elements and predated the AOJ/RO's adjudication in May 2009, which reduced the rating for bilateral varicose veins. The RO's notices were in the preferred sequence, without timing or content defects. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). Importantly, in the RO's proposed notice of reduction, issued in March 2009, the RO also informed the Veteran of his procedural rights to contest the proposed reduction, including the right to a hearing. The Veteran was given 60 days to present additional evidence and was notified at his address of record. Although he then requested a formal Decision Review Officer hearing at the RO, he later withdrew this request. Thus, the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) were followed. The Board finds he has received all notice necessary to adjudicate his claim, such the duty to notify has been fulfilled. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining the evidence necessary to substantiate his claim during the course of this appeal. The RO has obtained pertinent VA and identified private treatment records. The Veteran also submitted additional records and written statements in support of his claim. Indeed, in a September 2009 statement, the Veteran indentified a June 2009 VA treatment record that reportedly substantiated his assertion that a reduction was not borne out by the medical evidence. In response, the RO searched the available VA treatment records and associated with the claims file the available VA treatment records for June 2009, namely a surgical consult report for his varicose veins. Next, a specific VA medical examination was obtained in February 2009 to assess the severity of his varicose veins disability, which in turn formed the basis for his subsequent reduction of disability rating. To that end, 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). The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. Here, the VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. Although the Veteran's representative asserted that the February 2009 examination was inadequate for fully assessing the disability, no specific reason was provided as to why other than that his treating physicians have provided contrary findings. In this regard, a review of the record reveals no contemporaneous findings that corroborate the Veteran's assertions that he had persistent edema and stasis pigmentation from bilateral varicose veins, in contrast to the findings of the February 2009 examiner. See 38 C.F.R. § 3.327(a) (2012); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Analysis-Propriety of Reduction of Disability Rating to 30 Percent for Bilateral Varicose Veins The Veteran disputes the reduction to 30 percent of his bilateral varicose veins disability. He contends he has had persistent edema and stasis pigmentation from the varicose veins in both of his legs, and that he has been repeatedly told such by VA and private treating physicians. A. Procedural History Historically, a January 1990 RO rating decision initially established service connection for bilateral varicose veins, evaluated as 30 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7120, since March 31, 1988, the day after separation. That is, the condition had initially been rated as one disability, and evaluated as 30 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7120, since March 31, 1988. Under the former applicable criteria, a 30 percent rating for bilateral varicose veins of the lower extremities was warranted for moderately severe varicose veins involving superficial veins above and below the knee, with varicosities of the long saphenous, ranging in size from 1 to 2 cm. in diameter, with symptoms of pain or cramping on exertion, but without involvement of the deep circulation. A 50 percent evaluation required severe bilateral varicose veins, manifested by involvement of superficial veins above and below the knee, with involvement of the long saphenous, ranging over 2 cm. in diameter, marked distortion and sacculation, with edema and episodes of ulceration, but with no involvement of the deep circulation. A maximum 60 percent evaluation for pronounced bilateral varicose veins was warranted where the disability was manifested by findings of a severe condition with secondary involvement of the deep circulation, as demonstrated by Trendelburg's and Perthe's tests, with ulceration and pigmentation. 38 C.F.R. § 4.104, Diagnostic Code 7120 (1997). The criteria for evaluating cardiovascular disorders were changed, effective on January 12, 1998. 62 Fed. Reg. 65219 (1997). Following a January 2007 increased rating claim, the RO's March 2007 decision assigned separate 20 percent ratings for the Veteran's right and left lower extremities, after considering the regulatory changes. The reassignment of the single 30 percent evaluation to separate 20 percent evaluations each for varicose veins of the right and left leg was in this case based upon application of the revised criteria of Diagnostic Code 7120. Specifically, a note under that Diagnostic Codes provides that, in circumstances where more than one extremity is involved, each extremity is to be evaluated separately, and thereafter combined pursuant to 38 C.F.R. § 4.25, using the bilateral factor contained in 38 C.F.R. § 4.26, if applicable. 38 C.F.R. § 4.104, Diagnostic Code 7120 (1998). Subsequently, in a July 2007 rating decision, the RO increased the evaluation of the right lower extremity to 40 percent. The Veteran's varicose veins' separate 40 percent (right lower extremity) and 20 percent (left lower extremity) ratings had been in effect for less than five years at the time they were reduced. Where a Veteran's schedular rating has been both stable and continuous for five years or more, not the case here, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). A February 2009 RO rating decision proposed to reduce the Veteran's varicose veins from 40 to 10 percent for the right lower extremity and from 20 to 10 percent for the left lower extremity. The RO, in March 2009 issued a notice to the Veteran at his address of record, giving him 60 days to present additional evidence and providing him the opportunity for a personal hearing to contest the reduction. Procedurally, under 38 C.F.R. § 3.105(e), where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). In a May 2009 rating decision (over 60 days following the RO's March 2009 notice of proposed reduction), the RO reduced the Veteran's separate ratings to a single, combined 30 percent for bilateral varicose veins. The Veteran demonstrated actual improvement in his varicose veins, such that he no longer met the criteria for his prior 40 and 20 percent ratings for his right and left lower extremities; rather, his symptoms more closely approximated the current criteria for a 10 percent rating for varicose veins (which combined and using the bilateral factor totals 20 percent (21) see 38 C.F.R. §§ 4.25, 4.26). However, the RO's May 2009 rating decision also recognized that the Veteran has been compensated at least at the 30-percent level for varicose veins for his bilateral extremities since March 1, 1988, without any indication the initial rating was assigned based on fraud. A disability that has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b). So, a minimal 30-percent rating for bilateral varicose veins had been in effect for over 20 years at the time the reduction became effective on August 1, 2009. In the absence of fraud, he had a protected disability rating of 30 percent for bilateral varicose veins. The RO's May 2009 rating reduction complied with the procedural requirements for reducing the Veteran's disability rating, to include proper notification of the proposal to reduce the disability rating and giving him an opportunity to submit evidence. The Veteran was given 60 days to present additional evidence and was notified at his address of record. Although he then requested a formal Decision Review Officer hearing at the RO, he later withdrew this request. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) were followed. B. Substantive Analysis A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155. Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Upon review of the entire record, the evidence shows the reduction was proper. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The main evidentiary basis for the reduction by the RO was a February 2009 VA examination. The February 2009 VA examination was adequate for rating purposes for a varicose veins disability, as it was based on an interview with the Veteran, with objective clinical findings that addressed the relevant rating criteria. Also, this VA examination was as "full and complete" as the previous March and August 2007 VA examinations on which the higher, separate 40 percent rating (right lower extremity) and 20 percent rating (left lower extremity) were based. At the time of the reduction in the May 2009 rating decision, the February 2009 examination was the most probative evidence concerning the severity of his varicose veins. It appeared that when evaluated separately, each lower extremity only met the criteria for a 10 percent rating. Under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7120 (2012): A 10 percent disability rating is assigned for intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or by compression hosiery. A 20 percent disability rating is assigned for persistent edema that is incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent disability rating is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent disability 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. See 38 C.F.R. § 4.104, Diagnostic Code 7120 (2012). At the February 2009 examination, the Veteran reported he developed varicose veins in 1984 in the Air Force and was fitted with elastic stockings, with ongoing symptoms since that time. In 2007, he developed an ulcer on the medial aspect of the right ankle and had a vein stripping of the long saphenous vein. He had a good surgical result with healing of the ulcer at the ankle. He reported then-current symptoms of aching in the left leg with prolonged standing, but not the right. He has occasional itching over the varicose veins of the left leg. He wears compressive stockings below the knees all the time and finds that moving around, exercise, and walking relieves the discomfort in the legs. When he is sitting, he elevates the left leg, which was more symptomatic at the time of examination. He has occasional edema in the calves, but it is well-controlled with the compressive stockings. In reviewing his medical history, the examiner also noted the varicose veins do not interfere with his work or ADLs (activities of daily living). On physical evaluation, the February 2009 VA examiner found that he has no edema, stasis dermatitis, inflammation, induration, or ulceration of the legs. He had surgical scars on the right leg from the previous stripping of the long saphenous vein. He had a healed area of cellulitis, measuring 5cm x 6cm in diameter on the right medial ankle. No varicose veins were observed on the right leg. On the left leg, he had involvement of the long saphenous system with large tortuous varicose veins in the medial thigh and medial calf. The examiner diagnosed him with left varicose veins of the long saphenous system; and status-post vein "stripping" of the long saphenous system on the right. The February 2009 VA examination reflected actual improvement for the bilateral varicose veins, including improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). That is, by his own reported history to the February 2009 examiner and by the examiner's objective findings, he only more closely demonstrated intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or by compression hosiery. Indeed, the examiner found no edema of either leg, let alone of a persistent nature. Persistent edema is an essential criterion for meeting his prior 20 percent (left lower extremity) and 40 percent (right lower extremity) ratings. Also, symptoms were reported as actually relieved by physical activity and that he elevated his leg when sitting. Moreover, the Veteran's own account appears to show that he had only occasional edema in the calves, and those symptoms were relieved by compression hosiery, identified as stockings. The examiner also did not note any stasis pigmentation or eczema, and specifically found he did not have ulceration. In contrast, at the March 2007 VA examination, there were objective indications of edema, stasis pigmentation, ulceration and severe venous stasis dermatitis on the right. The August 2007 VA examination was similar to the February 2009 examination in also noting no edema, ulceration, induration of the bilateral extremities; however, the August 2007 examination contrasted by finding a minor skin abrasion of a stasis hyperpigmentation lesion, with indications of eczematous dermatitis (eczema) on the right leg. Thus, some of the symptoms that warranted the prior separate 20 and 40 percent ratings for the left and right lower extremities, respectively, were no longer present by the time of the February 2009 examination. It appears that the Veteran has demonstrated actual improvement in the condition of his varicose veins for both legs under the ordinary conditions of life and work. Indeed, a review of the Veteran's available VA outpatient treatment records and private treatment records also fails to show he met the varicose vein criteria for his previously higher ratings of 40 and 20 percent for his lower extremities by the time of the May 2009 decision. A June 2009 VA treatment surgical consult found no ulceration, and assessed that he had no physically prominent venous varicosities on the right or the left. It was noted that the Veteran reported that the pain was relieved by lifting and exercising. Private records dated in June/July 2009 by Dr. W.D. showed aching veins as his primary complaint, not persistent edema. It was reported that the physical examination revealed no rashes, lesions, or nonhealing ulcers. A more recent private treatment record dated in September 2011 by Dr. B.D. notes symptomatic varicose veins on the left side and venostasis changes on both sides, but is unremarkable for persistent edema, stasis pigmentation, eczema, or ulceration. The Board also emphasizes that in addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as the existence of pain, swelling, and discoloration associated with the varicose veins on his legs. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). As a layperson, however, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on the medical matter of the true severity of his varicose veins disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral varicose veins. The clinical evidence of record does not indicate that the assignment of any increased evaluation is warranted. As the Veteran's statements are inconsistent with the evidence of record, the Board finds his assertions of increased varicose veins symptoms to lack credibility as well as probative weight. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the Veteran's sworn testimony is a function for the BVA in the first instance"). For instance, the Veteran recently submitted a lay statement supporting the notion he has stasis pigmentation and swelling in both legs that is incompletely relieved by elevation of the extremities or wearing stockings. However, a review of Dr. B.D.'s private treatment report fails to corroborate this notion; rather, a submitted September 2011 venous ultrasound report found no sonographic evidence of left lower extremity DVT (deep vein thrombosis). Similarly, the Veteran's July 2009 personal statement asserted that in June 2009, a VA vascular physician told him he had persistent edema and stasis pigmentation, but review of the available June 2009 VA treatment record makes no mention of such findings. Thus, evidence of more severe varicose veins symptomatology of his legs has not been established by credible evidence, either through medical or lay evidence. In sum, the preponderance of the evidence demonstrates that the reduction in rating to 30 percent for the Veteran's bilateral varicose veins was proper. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Restoration of a higher, separate 40 percent rating (right lower extremity) and 20 percent rating (left lower extremity) is therefore denied. ORDER Reduction of the disability rating for bilateral varicose veins to 30 percent, effective August 1, 2009, was proper; and restoration of higher, separate 40 and 20 percent ratings for the right and left lower extremities, respectively, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs