Citation Nr: 1313560 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 03-07 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for gastrointestinal residuals of histiocytic lymphoma (non-Hodgkin's lymphoma). 2. Entitlement to an initial evaluation in excess of 60 percent for pulmonary emboli residuals of histiocytic lymphoma (non-Hodgkin's lymphoma) 3. Entitlement to an initial evaluation in excess of 40 percent for chronic venous insufficiency of the right lower extremity as a residual of histiocytic lymphoma (non-Hodgkin's lymphoma). 4. Entitlement to an initial evaluation in excess of 40 percent for chronic venous insufficiency of the left lower extremity as a residual of histiocytic lymphoma (non-Hodgkin's lymphoma). 5. Entitlement to an initial compensable evaluation for residual scars of histiocytic lymphoma (non-Hodgkin's lymphoma). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1966, which included service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2001 and January 2003 rating decisions by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). These rating decisions granted service connection for the residuals of the Veteran's histiocytic lymphoma of the stomach, and assigned a 20 percent disability rating throughout the rating period. By way of background, the Veteran was granted service connection for residuals of histiocytic lymphoma of the stomach (based on presumptive herbicide exposure during service in Vietnam as a form of non-Hodgkin's lymphoma), which was surgically resected in 1981. The RO assigned a 20 percent disability rating for gastrointestinal residuals of the histiocytic lymphoma. In November 2004 and December 2006, the Board remanded the claim for consideration of non-gastrointestinal residuals of the histiocytic lymphoma, and assign disability evaluations, so as to avoid piecemeal adjudication of the Veteran's claim. In December 2010, the Board denied a rating in excess of 20 percent for gastrointestinal residuals of the histiocytic lymphoma and remanded entitlement to increased ratings for non-gastrointestinal residuals of the histiocytic lymphoma. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2011 Joint Motion for Remand (Joint Motion), the Court vacated the Board's decision with respect to the denial of his claim for an increased rating for gastrointestinal residuals of his histiocytic lymphoma. In November 2011, the Board again remanded entitlement to increased ratings for residuals of the Veteran's histiocytic lymphoma. In an October 2012 rating decision, the Veteran was granted service connection for pulmonary embolism, rated 60 percent disabling, effective from August 31, 2000; granted service connection for venous insufficiency of the right and left lower extremity, each rated 40 percent disabling, effective from August 31, 2000; and granted service connection for residual scars, rated noncompensable (0 percent), effective from September 30, 1995. The rating decision also found clear and unmistakable error in the November 2001 and January 2003 rating decisions on appeal that granted service connection for gastrointestinal residuals of the Veteran's histiocytic lymphoma, and granted an earlier effective date of September 30, 1995 (from August 31, 1999). The issues on appeal have been characterized accordingly. Finally, the Board notes that the October 2012 rating decision also granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective from August 31, 2000. Accordingly, such is not before the Board and will not be addressed hereafter. See Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The Veteran's gastrointestinal residuals of histiocytic lymphoma of the stomach do not produce symptoms equivalent to moderate postgastrectomy syndrome (such as characteristic mild circulatory symptoms after meals with diarrhea and weight loss). 2. The Veteran's pulmonary emboli residuals of histiocytic lymphoma of the stomach, following inferior vena cava surgery in 1980, have not been manifested by primary pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. 3. The Veteran's chronic venous insufficiency of the right lower extremity does not cause persistent ulceration. 4. The Veteran's chronic venous insufficiency of the left lower extremity does not cause persistent ulceration. 5. The Veteran's residual scars of histiocytic lymphoma of the stomach are, at worst, 24 cm. x 9 mm., and 4.5 cm., that are not deep or unstable, not tender on examination, and cause no limitation of function. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for gastrointestinal residuals of histiocytic lymphoma of the stomach have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.114, Diagnostic Codes 7305, 7308, 7346 (2012); 38 C.F.R. § 4.117, Diagnostic Code 7715 (2012). 2. The criteria for an initial evaluation in excess of 60 percent for pulmonary emboli residuals of histiocytic lymphoma of the stomach have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code 6817 (2012); 38 C.F.R. § 4.117, Diagnostic Code 7715 (2012). 3. The criteria for an initial evaluation in excess of 40 percent for chronic venous insufficiency of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code 7121 (2012). 4. The criteria for an initial evaluation in excess of 40 percent for chronic venous insufficiency of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code 7121 (2012). 5. The criteria for an initial compensable evaluation for residual scars of histiocytic lymphoma have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (as in effect for claims filed prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Prinicipi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decisions on appeal granted service connection and assigned disability ratings and effective dates for the award of residuals of the Veteran's histiocytic lymphoma, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A January 2003 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to increased initial ratings; and a December 2012 supplemental SOC readjudicated the matters after the Veteran had opportunity to respond. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Board also finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent treatment records, including VA examination reports, and post-service VA and private treatment records, have been obtained. The Veteran has been afforded multiple VA examinations to evaluate residuals of his histiocytic lymphoma. The Board finds that the VA examination reports, cumulatively, contain sufficiently specific clinical findings and informed discussion of the disabilities on appeal, as appropriate, to provide probative medical evidence adequately addressing the issues decided below. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, neither the Veteran nor his attorney have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (i.e., VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 7715 (for non-Hodgkin's lymphoma), if the disease is inactive and the veteran is not undergoing treatment, the disability is rated on the residuals. See 38 C.F.R. § 4.117. In the instant case, the evidence reveals that the Veteran's surgical and chemotherapy and radiation therapy for his histiocytic lymphoma concluded in approximately 1981. The evidence since that time reveals no recurrence of the histiocytic lymphoma. See, e.g., November 1981 VA treatment report providing a diagnosis of histiocytic lymphoma of the stomach, now in remission; see also November 2002 VA lymphatic disorders examination report noting that treatment for the Veteran's non-Hodgkin's lymphoma was completed in 1981, and that the disease is considered cured. Accordingly, the analysis below will focus on the residuals of the Veteran's histiocytic lymphoma. Gastrointestinal Residuals The RO has rated the Veteran's gastrointestinal residuals of his histiocytic lymphoma 20 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7308 (for postgastrectomy syndromes), effective since September 30, 1995. Under Diagnostic Code 7308, a 20 percent rating is assigned for mild postgastrectomy syndrome with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms after meals or continuous mild manifestations. A 40 percent rating is assigned for moderate postgastrectomy syndrome with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A (maximum) 60 percent rating is assigned for severe postgastrectomy syndrome associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114, Diagnostic Code 7308. VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single disability rating will be assigned under the diagnostic code which reflects the predominant disability picture, with rating to the next higher evaluation where the severity of the overall disability warrants such rating. 38 C.F.R. § 4.114. On May 2001 VA digestive examination, it was noted that the Veteran's weight has been stable. There has been no fever and no night sweats. His appetite has been excellent. He moves his bowels regularly. On physical examination, his weight was 272 pounds. The abdomen was soft and nontender, with no palpable mass and the bowel sounds were present. On November 2002 VA lymphatic disorders examination, the Veteran denied recent fevers except those associated with kidney infections. He denied recent sweating. He did complain of excessive gas build-up and mild epigastric pain after meals, occurring almost every time he eats, lasting a few minutes and improved with antacids. The Veteran reported he regurges food at night if he lays flat after eating. He also related he has occasional nausea. He denied vomiting, abdominal cramps or colic, hypoglycemic or circulatory disturbance after meals. He described mild dyspnea (i.e., shortness of breath) on exertion which seems chronic and stable. He also reported regular bowel movements. On physical examination, the Veteran's weight was 268 pounds. His abdomen was obese, soft, with epigastric tenderness but no rebound tenderness, no rigidity, no peritoneal signs, and no obvious signs of weight gain or weight loss and no obvious signs of anemia. Bowel sounds were also present. Upper gastrointestinal series testing revealed gastroesophageal reflux disease (GERD) and a hiatal hernia. On April 2005 VA respiratory diseases/miscellaneous examination, the Veteran complained of nausea, daily, as well as vomiting two times per week. He also reported abdominal pain, periumbilical, intermittent, occurring two to three times per week, lasting ten minutes, sometimes occurring after meals. He indicated he has daily indigestion, and when he lays down at night after eating, food comes up his throat with associated heartburn, occurring almost every night. He also complained of excessive gas build-up. He reported regular bowel movements. He denied hypoglycemic reactions after meals, abdominal colic or cramps, dysphagia, fevers and night sweats. On physical examination, the Veteran's weight was 263 pounds (he reported intentional weight loss but that he had regained the weight). There were no general signs of anemia or weight loss. Abdominal examination revealed a soft, non-tender abdomen with positive bowel sounds. Upper gastrointestinal series testing revealed a hiatal hernia and GERD which clears well. Lab work showed mild elevation in the sedimentation rate and a slight decrease in the white blood cell count, of uncertain etiology or clinical significance. On May 2012 VA examination, the examiner noted that the Veteran denied hypoglycemic reactions and circulatory disturbances after meals during previous VA examinations. Regarding symptoms characteristic of circulatory disturbance caused by postgastrectomy syndrome, the Veteran denied lightheadedness, dizziness, sweats, tachycardia, headache, tremors, flushing or hypoglycemic symptoms. Therefore, based on review of the Veteran's claims file and medical records, the examiner found that there is no evidence of circulatory disturbance after meals. VA treatment records show the Veteran reported occasional symptoms of stomach pain, nausea and vomiting. August 2008 VA treatment records also note complaints of diarrhea. VA treatment records also note occasional complaints of fever, chills. However, such complaints appear to be related to urinary tract infections and flu symptoms. An April 2009 VA treatment record noted the Veteran's weight was 261 pounds. His VA treatment records generally note him to be well-nourished and obese - his weight is not routinely provided. After a careful review of the evidence of record, the Board finds that a disability evaluation in excess of 20 percent is not warranted. Throughout the entire appeal period, the evidence does not demonstrate the Veteran has circulatory symptoms after meals, or that he has diarrhea and weight loss, so as to warrant a disability evaluation in excess of 20 percent. The only evidence of diarrhea is in August 2008. Moreover, his highest weight during the appeal period appears to be 272 pounds, and his lowest weight approximately 261 pounds. Significantly, the Veteran has denied circulatory symptoms after meals throughout the appeal period. Notably, on May 2012 VA examination, in response to whether he had symptoms characteristic of circulatory disturbance caused by postgastrectomy syndrome, the Veteran denied all indicated symptoms. Furthermore, there has been no evidence of anemia or hypoglycemic symptoms. Based on the above evidence, the Board finds that a 40 percent disability evaluation under Diagnostic Code 7308 is not warranted. The Board has considered other relevant diagnostic codes to determine if they provide a higher rating. Specifically, the Board has considered the applicability of Diagnostic Code 7305 as VA treatment records show the Veteran has been diagnosed with peptic ulcer disease. A 40 percent disability rating is warranted under Diagnostic Code 7305 for moderately severe ulcer with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. As the evidence does not show anemia, weight loss (due to his gastrointestinal disability, as opposed to intentional weight loss) or recurrent incapacitating episodes, a higher rating under Diagnostic Code 7305 is not warranted. A higher rating under Diagnostic Code 7346 for hiatal hernia is also not warranted. A 30 percent rating for hiatal hernia under requires persistent recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The record shows that the Veteran has had symptoms of pyrosis and regurgitation, but there is no evidence of dysphagia or substernal or arm or shoulder pain. In addition, the pyrosis and regurgitation that is present is not consistent with (or approximate), considerable impairment of health. Significantly, his VA treatment records show him to be well-nourished, and there is no evidence showing that his gastrointestinal symptoms are consistent with (or approximate) considerable impairment of health. Based on the evidence, the Board finds that a disability evaluation in excess of 20 percent is not warranted for the Veteran's gastrointestinal residuals of his histiocytic lymphoma. Pulmonary Emboli The RO has rated the Veteran's pulmonary emboli residuals of his histiocytic lymphoma 60 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6817 (for pulmonary vascular disease). Under Diagnostic Code 6817, a 60 percent rating is assigned when there is chronic pulmonary thromboembolism requiring anticoagulant therapy, or following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction. A (maximum) 100 percent rating is assigned when there is primary pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. Historically, in August 1980, the Veteran underwent insertion of a Mobin Udin umbrella in the inferior vena cava for a gastrointestinal bleed and pulmonary embolus. As noted above, an October 2012 rating decision granted service connection for pulmonary emboli, rated 60 percent disabling, effective since August 31, 2000. On November 2002 VA lymphatic disorder examination, the Veteran reported he had a pulmonary embolism prior to the diagnosis of non-Hodgkin's lymphoma and had an umbrella placement. He denied suffering from blood clots since then. Physical examination included cardiovascular examination which revealed a regular rate and rhythm. The diagnoses included a history of pulmonary embolism, status post filter placement. On April 2005 VA respiratory diseases/miscellaneous examination, the Veteran reported that following the placement of an inferior vena cava filter, he was not given blood thinners because of "stomach problems." He denied further episodes of pulmonary embolism or blood clots. He denied a history of hypertension, heart disease, or congestive heart failure or myocardial infarction. He reported dyspnea on exertion that has been occurring for many years and seems stable. Physical examination included cardiovascular examination which revealed a regular rate and rhythm. On May 2012 VA respiratory conditions examination, the examiner diagnosed the Veteran with pulmonary embolism, beginning 1980. A November 2009 chest x-ray revealed no acute cardiac or pulmonary abnormality. After review of the Veteran's claims file and physical examination, it was found that previous and current pulmonary function testing was normal. It was opined that his current complaint of dyspnea with walking a half block is less likely due to his history of pulmonary embolism. VA and private treatment records note a history of hypertension. A January 2002 echocardiographic report found that there was adequate right ventricular contractility, no evidence of valvular abnormalities, and no evidence of pulmonary hypertension. VA treatment records also note a past medical history of embolism and thrombosis. After a careful review of the evidence of record, the Board finds that a disability evaluation in excess of 60 percent is not warranted. Throughout the entire appeal period, the evidence does not demonstrate the Veteran has primary pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale, so as to warrant a disability evaluation in excess of 60 percent. The Veteran's pulmonary emboli residuals are consistent with the currently assigned 60 percent rating as the evidence shows that he has had inferior vena cava surgery. Based on the above evidence, the Board finds that a 100 percent disability evaluation under Diagnostic Code 6817 is not warranted. Bilateral Lower Extremity Venous Insufficiency The RO has rated the Veteran's chronic venous insufficiency of the right lower extremity 40 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7121 (for post-phlebitic syndrome). Under Diagnostic Code 7121, a 40 percent rating is assigned when there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is assigned when there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A (maximum) 100 percent rating is assigned when there is massive board-like edema with constant pain at rest. As noted above, an October 2012 rating decision granted service connection for chronic venous insufficiency of the right lower extremity, rated 40 percent disabling, effective since August 31, 2000. On May 2001 VA digestive examination, it was noted the Veteran has been treated with HCTZ for edema of the lower extremities caused by an umbrella (into the inferior vena cava for a gastrointestinal bleed and pulmonary embolus). He reported he cannot stand without shortness of breath and swelling in his legs. On physical examination, there was 1 to 2+ pitting edema over the shin area. It was noted he wore stockings since he had a blood clot in the chest. On November 2002 VA lymphatic disorders examination, the Veteran was wearing support stockings on his lower extremities secondary to chronic swelling. On April 2005 VA respiratory diseases/miscellaneous examination, the Veteran reported symptoms in both lower extremities over the past four months, including swelling and pain, intermittently, precipitated with prolonged standing and aggravated by prolonged driving (he avoids driving for long durations). He indicated the swelling and pain resolve completely with elevation of the legs. He related he has been wearing support stockings for his lower extremities since the inferior vena cava filter was placed. He reported he has to rest after walking half a block; he denied other activities being affected by his venous insufficiency of the lower extremities. On physical examination, the Veteran was wearing support stockings on both lower extremities. There were no foot ulcers noted. In the supine position, he had trace edema bilaterally. While standing, there was trace edema bilaterally and there were small segments of palpable vessels located in the dorsum of the feet bilaterally and the right leg posteriorly. The examiner opined the inferior vena cava filter placement was at least as likely as not causing the lower extremity problems. On May 2012 VA artery and vein conditions examination, the Veteran was diagnosed with venous insufficiency, beginning in 1980. It was noted that his symptoms include aching and fatigue in both legs after prolonged standing or walking; symptoms relieved by elevation of both extremities; symptoms relieved by compression hosiery, bilaterally; persistent stasis pigmentation or eczema, bilaterally; and persistent edema that is incompletely relieved by elevation of the extremities. Private treatment records during the appeal period reflect complaints of bilateral leg cramps and pain, as well as findings of bilateral lower extremity edema. VA treatment records include findings of lower extremity swelling and pain. VA treatment records further reflect findings that his venous insufficiency is stable. After a careful review of the evidence of record, the Board finds that a disability evaluation in excess of 40 percent for either extremity is not warranted. Throughout the entire appeal period, the evidence demonstrates that the Veteran has had persistent edema of the bilateral lower extremities. However, there is no evidence of record that the Veteran has ulceration, let alone persistent ulceration of either lower extremity. There is no evidence of ulceration of either lower extremity. Based on the lack of medical evidence demonstrating the criteria for the next higher (60 percent) schedular evaluation (i.e., persistent ulceration), the appeal must be denied. Based on the above evidence, the Board finds that a 60 percent disability evaluation under Diagnostic Code 7121 is not warranted for chronic venous insufficiency of either lower extremity. Residual Scars The RO has rated the Veteran's residual scars of the histiocytic lymphoma noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7802, effective from September 30, 1995. The Board notes that the criteria for rating skin disability were revised, effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008). The announcement of the final regulation specifically states that the new criteria apply "to all applications for benefits received by VA on or after October 23, 2008" and that a veteran rated under the skin criteria in effect prior to that date may request review under the clarified criteria. As neither the Veteran nor his attorney has requested such review, and his claim was received prior to October 23, 2008, it is not necessary to consider the revised criteria. Scars, other than those on the head, face, or neck, are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Rating the scar residual disability discussed below under Diagnostic Code 7801 would be inappropriate as none of the scars are deep (associated with underlying tissue damage). Hence, this Diagnostic Code will not be addressed further. A 10 percent rating is authorized for superficial scars that do not cause limited motion that encompass an area or areas of 144 square inches (299 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. A note following Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. A 10 percent rating is authorized for superficial, unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7803. A note following Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Under Diagnostic Code 7804, a 10 percent rating is authorized for superficial scars that are painful on examination. 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that other scars will be rated on limitation of motion of the affected part. 38 C.F.R. § 4.118. On May 2001 VA digestive examination, on physical examination there was a 24 cm. scar from the epigastric to below the umbilicus bypassing its left side that was healed and non-tender. On November 2002 lymphatic disorders examination, on physical examination, there was a healed, non-tender, 22 cm. surgical scar in the midline veering to the left of the umbilicus. On April 2005 VA respiratory diseases/miscellaneous examination, the Veteran reported that when he filed his claim for scars, he was referring to the scarring in his stomach. He reported that the scar in the anterior abdominal wall that resulted from the gastric surgery in 1981 is not actually bothering him. He denied burning, itching, pain, infection or discharge in that scar. On physical examination, there was a healed, non-tender, 22 cm. x 9 mm., surgical scar in the midline superior to and veering to the left of the umbilicus. It was darker in color than the rest of the skin. It was slightly thickened and elevated, less than 1 mm. There was no depression. There was no evidence of infection or discharge, inflammation or edema. The scar was also described as being superficial, stable, and non-adherent. On May 2012 VA examination, it was noted that the Veteran's scars were not unstable, with frequent loss of covering of skin over the scar. In addition, it was noted that the Veteran's scars were not painful. It was noted he had a midline surgical scar, 22 x 1.5 cm, superficial and non-linear, veering to the left of the umbilicus. It was noted that the scars do not result in any limitation of function. It was also noted that the Veteran had a healed, 4.5 cm. linear scar related to inferior vena cava placement in the right upper anterior chest along the medical aspect of the right clavicle. He denied pain or breakdown of skin. On palpation and applying deep pressure on the scar, he indicated it was slightly sensitive. The Board has considered whether there is any schedular basis for granting a compensable rating for the Veteran's service-connected scars, but has found none. In particular, there is no medical evidence that the scars are deep, unstable, painful, cause limited motion, or encompass an area of 144 square inches (299 sq. cm.) or greater. See Diagnostic Codes 7801-7804. Although the Veteran indicated on May 2012 VA examination that the scar in the right upper anterior chest was slightly "sensitive" on palpation, there is no indication of pain of the scar. There has been no finding of limitation of function or pain on examination. Therefore, a compensable rating under Diagnostic Codes 7804 and 7805 would be inappropriate. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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. 38 C.F.R. § 3.321(b)(1); 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 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, thus, 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 the veteran's disability picture requires the assignment of an extraschedular rating. Under Thun, the initial step in a determination as to whether there should be referral for extraschedular consideration is a comparison between the levels of symptoms shown with the schedular criteria for rating the disability. In the instant case, the Board finds that the rating criteria contemplate the Veteran's residuals of histiocytic lymphoma. The Veteran has not described any unusual or exceptional features associated with his claimed disabilities. Specifically regarding the Veteran's gastrointestinal residuals of histiocytic lymphoma, the Board notes that VA regulations provide that a single disability rating will be assigned under the diagnostic code which reflects the predominant disability picture, with rating to the next higher evaluation where the severity of the overall disability warrants such rating. 38 C.F.R. § 4.114. While the record shows that the Veteran has had symptoms of his gastrointestinal residuals subject to consideration under other applicable rating criteria (e.g., pyrosis and regurgitation), such symptoms fall squarely within the schedular criteria for rating gastrointestinal symptoms. The rating criteria are therefore adequate to evaluate the disabilities, and referral for consideration of extraschedular ratings is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 20 percent for gastrointestinal residuals of histiocytic lymphoma of the stomach is denied. An initial evaluation in excess of 60 percent for pulmonary emboli residuals of histiocytic lymphoma of the stomach is denied. An initial evaluation in excess of 40 percent for chronic venous insufficiency of the right lower extremity as residual of histiocytic lymphoma of the stomach is denied. An initial evaluation in excess of 40 percent for chronic venous insufficiency of the left lower extremity as residual of histiocytic lymphoma of the stomach is denied. An initial compensable evaluation for residual scars of histiocytic lymphoma of the stomach is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs