Citation Nr: 1306118 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 07-31 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for arteriosclerotic heart disease, status post myocardial infarction. 2. Entitlement to a disability rating in excess of 20 percent disabling for chronic lumbosacral strain with discogenic disease of the lumbar spine. 3. Entitlement to a disability rating in excess of 20 percent for right leg radiculopathy associated with chronic lumbosacral strain with discogenic disease of the lumbar spine. 4. Entitlement to a disability rating in excess of 20 percent for left leg radiculopathy associated with chronic lumbosacral strain with discogenic disease of the lumbar spine. 5. Entitlement to a disability rating in excess of 10 percent for right lower extremity varicose veins. 6. Entitlement to a disability rating in excess of 0 percent prior to November 1, 2010, and in excess of 10 percent from November 1, 2010, for left lower extremity varicose veins. 7. Entitlement to a total disability rating based on individual unemployability due to service connected disorders (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1954 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. A subsequent August 2012 rating decision provided separate evaluations for the Veteran's bilateral lower extremity radiculopathy. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The TDIU claim is addressed in the Remand portion of the decision below. FINDINGS OF FACT 1. A January 2003 rating decision originally denied service connection for heart disease; the Veteran filed a timely notice of disagreement regarding that decision and was provided with a Statement of the Case in February 2004, but he did not submit a substantive appeal and no new and material evidence was submitted to VA within the applicable appeal period. 2. A subsequent July 2005 rating decision denied service connection for heart disease due to a lack of new and material evidence; the Veteran never filed a timely notice of disagreement regarding that decision, and no new and material evidence was submitted to VA within the applicable appeal period. 3. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for heart disease has not been received since the July 2005 rating decision. 4. The Veteran's low back disability is productive of limitation of flexion to 30 degrees or less, but has at no point been productive of ankylosis or incapacitating episodes. 5. The Veteran's right leg radiculopathy associated with chronic lumbosacral strain with discogenic disease of the lumbar spine is wholly sensory in nature and is moderate in severity. 6. The Veteran's left leg radiculopathy associated with chronic lumbosacral strain with discogenic disease of the lumbar spine is wholly sensory in nature and is moderate in severity. 7. The Veteran's right leg lower extremity varicose veins manifested with persistent edema prior to November 2010, and with persistent edema and stasis pigmentation/eczema since November 2010. 8. Prior to November 1, 2010, the Veteran's left leg lower extremity varicose veins were not seen or palpable. 9. Effective November 1, 2010, the Veteran's left leg lower extremity varicose veins manifested persistent edema. CONCLUSIONS OF LAW 1. The July 2005 rating decision that denied the claim to reopen service connection for heart disease is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). 2. New and material evidence has not been received since the July 2005 decision, and the claim for service connection for heart disease is not reopened. 38 U.S.C.A. §§ 1110, 1131, 5103, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2012). 3. The criteria for a disability rating of 40 percent for chronic lumbosacral strain with discogenic disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for a 20 percent disability rating for varicose veins of the right lower extremity prior to November 2010, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2006 & 2012). 7. The criteria for a 40 percent disability rating for varicose veins of the right lower extremity effective from November 2010, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2006 & 2012). 8. The criteria for a compensable disability rating for varicose veins of the left lower extremity prior to November 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2006 & 2012). 9. The criteria for a 20 percent disability rating for varicose veins of the left lower extremity effective from November 2010, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2006 & 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2011), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Kent v. Nicholson, 20 Vet.App. 1 (2006), the Court addressed directives consistent with VCAA with regard to new and material evidence. The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The February 2006 letter noted the basis of the prior final rating decision, the evidence needed to reopen the claim, and the evidence required regarding the underlying service connection claim. Therefore, the February 2006 letter was in compliance with the Kent directives. The record shows that through VCAA letters dated February 2006 and July 2006, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). He has received all essential notice, has had a meaningful opportunity to participate in the development of the claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Thus, no further development is required with respect to the duty to notify. The Board also finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA examination reports, service treatment records, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was provided VA examinations in August 2006 and November 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes. New and Material Evidence - Heart Disease The Veteran's claim to reopen involves a claim of entitlement to service connection for heart disease. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A review of the record shows that a claim of service connection for heart disease was originally denied in January 2003. The Veteran filed a notice of disagreement regarding the January 2003 rating decision. A Statement of the Case was issued in February 2004. The Veteran did not submit a substantive appeal. Therefore, the January 2003 decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). The Veteran also did not submit any information or evidence within the applicable time period of the February 2004 Statement of the Case to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). Subsequently, a claim to reopen service connection for heart disease was denied in July 2005. The Veteran did not file a notice of disagreement regarding the July 2005 rating decision. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). The Veteran also did not submit any information or evidence within one year of the July 2005 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, material evidence could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been received, the claim must be reopened and VA may then proceed to the merits of the claim on the basis of all the evidence of record. The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it. Shade v Shinseki, 24 Vet. App. 110 (2010). In this case, the RO originally denied service connection for heart disease in January 2003, finding that no evidence showed heart disease during service, or any competent, credible link between current disability and service. The RO denied reopening the claim in July 2005 and then again in November 2006. The present appeal ensued. Regardless of the RO's determination, the Board is not bound by that determination as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the prior final rating decision in July 2005, VA has received additional evidence, including treatment for heart disease and lay testimony that he experienced a heart attack during service. This evidence does not constitute new and material evidence. Although it was not previously submitted to agency decisionmakers, it is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. That evidence had included lay statements regarding a heart attack during service and treatment records indicating a current heart problem. As new and material evidence has not been submitted, the claim is not reopened, and this aspect of the appeal is denied. Increased Rating - Laws and Regulations 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. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Increased Rating - Lumbar Strain The Veteran's low back disability is rated under Diagnostic Code 5243 for intervertebral disc syndrome. The regulation directs the rater to evaluate intervertebral disc syndrome either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine assigns disability ratings regarding the lumbar spine as follows: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent evaluation. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. After a review of all the evidence, the Board finds that a 40 percent disability rating is warranted for the Veteran's low back disability. The Veteran was afforded a VA examination in August 2006. The Veteran noted constant pain, especially when the weather changes to cold. He had a functional limitation of walking 200 yards. The spine had a normal curvature with intact posture and gait. Range of motion testing revealed forward flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 26 degrees and bilateral lateral rotation to 24 degrees. The examiner noted no pain on motion. Repetitive range of motion testing was performed with no loss of motion following repetitive use. VA treatment records indicate continuous complaints of back pain, for which the Veteran is receiving pain medication. At the October 2007 Decision Review Officer hearing, the Veteran reported taking oxycodone every day, sometimes two or three times per day. He noted complaints of pain with range of motion. The Veteran was afforded another VA examination in November 2010. At that time, the examiner noted constant pain primarily at the center of the low back. The Veteran uses three to eight tablets per day of oxycodone. The examiner noted no incapacitating episodes of spine disease. The Veteran uses a cane or a walker to ambulate. The Veteran exhibited an antalgic gait with poor propulsion. He had some lumbar flattening but no other abnormal spinal curvature. The examiner noted spasm, pain with motion, and tenderness. The Veteran's active range of motion was flexion to 55 degrees, extension to 10 degrees, left lateral flexion to 16 degrees, right lateral flexion to 18 degrees, bilateral lateral rotation to 30 degrees. The examiner noted objective evidence of pain on active range of motion. Upon repetitive motion testing, the examiner noted the Veteran was no longer able to flex. As the Veteran showed no forward flexion of the lumbar spine after only three repetitions of range of motion tests, the Board considers it reasonable to find the disability is productive of limitation of flexion to 30 degrees or less, as contemplated for a 40 percent evaluation. A 50 percent disability rating is not warranted unless the evidence showed unfavorable ankylosis of the entire thoracolumbar spine. The evidence did not show ankylosis of the spine at any time. The Veteran maintained some range of motion of the spine at all times. Additionally, the VA examiner in November 2010 specifically noted no incapacitating episodes. Therefore a disability rating in excess of 40 percent is not warranted. Increased Rating - Bilateral Lower Extremity Radiculopathy As they stem from the same factual background and rating criteria, the Board will address the right and left lower extremity radiculopathy together. The radiculopathy is rated under Diagnostic Code 8520. Under that regulation, a 10 percent evaluation is warranted for incomplete paralysis of the sciatic nerve to a mild degree. A 20 percent evaluation is warranted for incomplete paralysis of the sciatic nerve to a moderate degree. A 40 percent rating is warranted for incomplete paralysis of the sciatic nerve to a moderately-severe degree. A 60 percent rating is warranted for incomplete paralysis of the sciatic nerve to a severe degree with marked muscular atrophy. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The evidence shows that in the August 2006 examination, the examiner noted left lower extremity radicular pain with flares two to three times per month. He noted no significant loss of range of motion or neurological abnormalities. At the November 2010 VA examination, the Veteran complained of pain in the back of the legs and tingling and numbness in the feet. The examiner noted bilateral lower extremity radiation of pain, described as burning, tingling, and numbness. The Veteran's ankle jerk response was zero bilaterally. The examiner noted that the L4-5, S1 nerves were affected bilaterally with decreased vibration and position sense of the great toe bilaterally, with absent right great toe vibration sense. He also noted decreased pain or pinprick of the lateral distal thigh, distal medial calf, and foot bilaterally. The Veteran showed decreased light touch of the lateral distal thigh bilaterally. The light touch was absent in the left medial dorsal foot and the right foot. The left extremity showed no dysethesias, but the right superior medial calf was positive for dysethesias. A detailed motor exam showed normal ankle dorsiflexion, plantar flexion, hip extension, and great toe extension. The Veteran's knee extension, knee flexion, and hip flexion showed active movement against some resistance bilaterally. The examiner diagnosed bilateral lower extremity sensory neuropathy. The evidence shows that the Veteran's bilateral lower extremity radiculopathy is wholly sensory in nature. As noted in 38 C.F.R. § 4.124a, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Veteran is currently rated at the moderate level. The Board finds that without additional symptomatology, a moderately severe rating is not warranted. Increased Rating - Bilateral Lower Extremity Varicose Veins Again, the evaluation of the Veteran's varicose veins share the same factual background and rating criteria, the Board will address the right and left lower extremity varicose veins together. The Veteran's right leg varicose veins are rated at 10 percent throughout the entire period on appeal. The Veteran's left leg varicose veins are rated at noncompensable prior to November 1, 2010 and at 10 percent effective November 1, 2010. Varicose veins are evaluated under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7120. Under this code, that a non-compensable rating is assigned for asymptomatic palpable or visible varicose veins. A 10 percent rating is assigned when varicose veins are productive of intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent rating is assigned for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, and a 40 percent rating is assigned with persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is assigned for persistent edema or subcutaneous induration stasis pigmentation or eczema, and persistent ulceration. The Veteran was afforded a VA examination in August 2006, at which time the examiner noted a progressive course in the right leg and an intermittent course in the left leg. The Veteran complained of pain on prolonged standing and walking, with symptoms sometimes relieved by elevation and compression stockings. The, was however, no effect on the Veteran's part-time job or on his daily activities. The examiner observed palpable tortuous varicose veins in the right posterior calf, and he noted no varicose veins seen or palpated in the left leg. The Veteran had no ulcers, stasis pigmentation, or eczema, but there was edema in the right calf. The Veteran was afforded another VA examination in November 2010. At that time, the examiner observed edema in the right lower leg as well as stasis pigmentation/eczema, but no ulceration. With respect to the left leg, edema also was present in the left lower leg, but with no stasis pigmentation/eczema or ulceration. With edema observed in the right lower extremity when examined for VA purposes in both 2006 and 2010, and with the presence of stasis pigmentation/eczema observed at the November 2010 examination, the Board finds that the right lower extremity varicose veins warranted a 20 percent evaluation prior to November 2010, and that a 40 percent rating was warranted from November 2010. As there is no ulceration, a rating in excess of 40 percent is not warranted. With respect to the left lower extremity, prior to November 2010, the record shows the varicose veins were neither palpable or visible in 2006. At the November 2010 examination, however, edema was present. Resolving any reasonable doubt in favor of the Veteran as to whether it is persistent, this provides a basis for assigning a 20 percent rating for the left lower extremity, effective from the date of this examination. As there is no stasis pigmentation or eczema described, an evaluation in excess of 20 percent is not warranted. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. His service-connected low back disability manifests with pain and decreased limitation of motion. The Veteran's varicose veins have resulted in edema, pain and stasis pigmentation. His radiculopathy manifests with moderate incomplete paralysis. Theses manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the disabilities at issue and referral for consideration of extraschedular rating is not warranted. ORDER New and material evidence, not having been received, a claim of service connection for arteriosclerotic heart disease, status post myocardial infarction, is not reopened. Entitlement to a disability rating of 40 percent disabling for chronic lumbosacral strain with discogenic disease of the lumbar spine is granted. Entitlement to a disability rating in excess of 20 percent for right leg radiculopathy associated with chronic lumbosacral strain with discogenic disease of the lumbar spine is denied. Entitlement to a disability rating in excess of 20 percent for left leg radiculopathy associated with chronic lumbosacral strain with discogenic disease of the lumbar spine is denied. Entitlement to a 20 percent disability rating for right lower extremity varicose veins during the appeal period prior to November 2010, is granted. Entitlement to a 40 percent disability rating for right lower extremity varicose veins effective from November 2010, is granted. Entitlement to a compensable disability rating for left lower extremity varicose veins during the appeal period prior to November 2010, is denied. Entitlement to a 20 percent disability rating for left lower extremity varicose veins effective from November 2010, is granted. REMAND In a September 2012 letter from a VA physician to the Veteran, (located in the VA Virtual (electronic) File, the Veteran was described as unemployable. The Veteran's service connected disabilities were implicated in the reasons for this conclusion. Since a TDIU claim is to be considered when it is raised in the context of increased rating claims, this matter must be returned to the RO for its initial consideration. Accordingly, this matter is Remanded for the following: The indicated notice and development of the claim for TDIU benefits should be accomplished, including the conduct of any indicated VA examinations to address the question. If after adjudication, the claim is denied, the Veteran and his representative should be provided a supplemental statement of the case before the case is returned to the Board for its review. The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs