Citation Nr: 1300859 Decision Date: 01/09/13 Archive Date: 01/16/13 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 40 percent for varicose veins, right lower extremity, effective March 19, 2009. 2. 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 M. Prem, 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. The Board issued a decision denying this appeal in June 2011. In March 2012, the Veteran and the Secretary of Veterans Affairs submitted a Joint Motion for Remand to the United States Court of Appeals for Veterans Claims (Court). The Court issued an Order remanding the claims to the Board. In its June 2011 Decision, the Board also denied a rating in excess of 30 percent for bilateral varicose veins prior to September 27, 2007. It granted 20 percent ratings for varicose veins of the right and left lower extremities effective September 27, 2007; and granted 40 percent ratings for varicose veins of the right and left lower extremities effective July 12, 2008. These decisions by the Board were not disturbed. The Veteran presented testimony at a Board hearing in November 2008. A transcript of the hearing is associated with the Veteran's claims folder. FINDINGS OF FACT 1. Effective March 19, 2009, the Veteran's varicose veins, right lower extremity have been manifested by massive board-like edema with constant pain at rest. 2. Effective March 19, 2009, the Veteran's varicose veins, left lower extremity have been manifested by massive board-like edema with constant pain at rest. CONCLUSIONS OF LAW 1. Effective March 19, 2009, the criteria for entitlement to a disability evaluation of 100 percent, for the Veteran's service-connected varicose veins, right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 7120 (2012). 2. Effective March 19, 2009, the criteria for entitlement to a disability evaluation of 100 percent, for the Veteran's service-connected varicose veins, left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 7120 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings The present appeal involves the Veteran's claim that the severity of his service-connected varicose veins, of the right and left lower extremities warrants higher disability ratings. Disability evaluations 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 evaluations shall be applied, the higher evaluation 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected varicose veins have been rated by the RO under the provisions of Diagnostic Code 7120. Under this regulatory provision, a noncompensable rating is warranted for asymptomatic palpable or visible varicose veins. A 10 percent rating is warranted for intermittent edema of extremity or acing and fatigue in the leg after prolonged standing or walking, with symptoms relived by elevation of extremity or compression hosiery. A 20 percent rating is warranted for 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 (2012). The Veteran underwent a VA examination on March 19, 2009. The examiner reviewed the claims file in conjunction with the examination. 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. In order to warrant a rating in excess of 60 percent, the Veteran's disabilities must be manifested by massive board-like edema with constant pain at rest. The Board notes that the March 2009 VA examiner found massive board-like edema in both the left and right lower extremities. The issue is whether the Veteran also experiences constant pain at rest. The March 2009 examination report is somewhat ambiguous in that for both lower extremities, the examiner stated that pain does not occur at rest. However, for both lower extremities, the examiner also stated that pain was constant. "Constant" can be defined as (1) not changing or varying; uniform; regular; invariable, and (2) continuing without pause or letup; unceasing. Consequently, "constant" pain would seem to include pain at rest. Moreover, the Board notes that at the Veteran's November 2008 Board hearing, he was specifically asked whether he experiences constant pain. He replied "pretty much" and then went on to state that when he moves around, his legs begin to swell and it becomes very uncomfortable. He will then sit down; but if he sits too long, his legs go to sleep. He stated that the only way to alleviate the pain is by lying down and putting his legs up on some pillows. When questioned further, the Veteran stated that even this does not completely eliminate the pain; it simply alleviates the pain and reduces swelling. The Board finds that the Veteran has described pain that might vary in severity; but that is always present, and continuing without pause or letup. In other words, he has described pain that is constant. Moreover, the March 2009 VA examination report also documents constant pain. Though the argument is somewhat undercut by the examination report's indication that there is no pain at rest, the Board finds that the Veteran's testimony is credible, and that the evidence is at least in equipoise. Consequently, the Board finds that the Veteran is entitled to a 100 percent rating for varicose veins, right lower extremity, effective March 19, 2009; and to a 100 percent rating for varicose veins, left lower extremity, effective March 19, 2009 Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). The Board notes that RO letters dated February 2006 and March 2006 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Effective March 19, 2009, entitlement to a rating of 100 percent for varicose veins, right lower extremity, and entitlement to a rating of 100 percent for varicose veins, left lower extremity, is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs