Citation Nr: 1320180 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 07-24 135A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability evaluation for the Veteran's right leg varicose veins, currently evaluated as 10 percent disabling. 2. Entitlement to a compensable disability evaluation for the Veteran's gouty arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from October 1953 to April 1974. He served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the St. Petersburg, Florida, Regional Office (RO) which, in pertinent part, denied service connection for primary thrombocytopenia claimed as the result of herbicide exposure, right lower extremity peripheral neuropathy claimed as the result of herbicide exposure, and left lower extremity peripheral neuropathy claimed as the result of herbicide exposure. In February 2007, the Cleveland, Ohio Regional Office denied increased disability evaluations for the Veteran's right leg varicose veins and gouty arthritis. In June 2009, the Veteran submitted a Motion to Advance on the Docket. In July 2009, the Board granted the Veteran's motion. In July 2010, the Board remanded the Veteran's appeal to the RO for additional action. In February 2013, the Board denied service connection for thrombocytopenia claimed as the result of herbicide exposure, right lower extremity peripheral neuropathy claimed as the result of herbicide exposure, and left lower extremity peripheral neuropathy claimed as the result of herbicide exposure and remanded the issues of increased evaluations for the Veteran's right leg varicose veins and gouty arthritis to the RO for additional action which included requesting clinical documentation and affording the Veteran VA evaluations. That action requested by the February 2013 Board remand was accomplished and the case was returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. 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). FINDINGS OF FACT 1. The Veteran's right leg varicose veins have been objectively shown to be manifested by no more than tortuous veins over the medial aspect of the right lower extremity from the ankle to approximately the knee; chronic right lower extremity pain at rest; aching associated with prolonged walking and standing; persistent stasis pigmentation or eczema; and no persistent edema. 2. The Veteran's gouty arthritis has been objectively shown to be manifested by no active symptoms or chronic residuals on multiple evaluations. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the Veteran's right leg varicose veins have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.104, Diagnostic Code 7120 (2012). 2. The criteria for a compensable evaluation for the Veteran's gouty arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.71a, Diagnostic Codes 5002, 5017 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has issued several VCAA notices to the Veteran including an October 2006 notice which informed him of the evidence generally needed to support claims for increased evaluations for both varicose veins and gouty arthritis and the assignment of an effective date for such awards; what actions he needed to undertake; and how VA would assist him in developing his claims. The October 2006 VCAA notice was issued to the Veteran prior to the February 2007 rating decision from which the instant appeal arises. The issues were readjudicated in the June 2007 statement of the case (SOC) and the multiple supplemental statements of the case (SSOC) issued to the Veteran; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has secured or attempted to secure all relevant documentation to the extent possible. The Board twice remanded the Veteran's appeal to the RO for additional action including affording him VA evaluations. The Veteran was afforded March 2013 VA examinations for compensation purposes which addressed his varicose veins and gouty arthritis. The examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2013 examination reports reflect that all relevant testing was performed. The examiners noted reviewing the record and provided the requested opinions. The Board finds that there has been substantial compliance with its February 2013 remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no issue as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. II. Right Leg Varicose Veins A. Historical Review The Veteran's service treatment records note treatment for right lower extremity varicose veins. The report of a July 1974 VA examination for compensation purposes states that the Veteran exhibited varicosities over the medial aspect of the right lower extremity from the thigh to the ankle. He was diagnosed with right leg varicose veins. In August 1974, VA established service connection for right leg varicose veins; assigned a 10 percent evaluation for that disability; and effectuated the award as of May 1, 1974. B. Evaluation Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). A 10 percent evaluation is warranted for varicose veins requires 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 compression hosiery. A 20 percent evaluation requires persistent edema incompletely relieved by elevation of the extremity with or without beginning stasis, pigmentation, or eczema. A 40 percent evaluation requires persistent edema and stasis pigmentation or eczema with or without intermittent ulceration. A 60 percent evaluation requires persistent edema or subcutaneous induration, stasis pigmentation, or eczema, and persistent ulceration. A 100 percent evaluation requires massive board-like swelling with severe and constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). At an October 2006 VA examination for compensation purposes, the Veteran complained of right lower extremity pain and aching associated with prolonged standing. He reported that he used TED hose on his right leg when he was required to stand for long periods of time. On examination of the right lower extremity, the Veteran exhibited moderate varicose veins over the medial aspect of the extremity mainly below the knee with no ulceration, oozing, signs of stasis such as discoloration, phlebitis, or signs of deep venous thrombosis. An assessment of moderate right lower extremity varicose veins was advanced. At a February 2007 VA examination for compensation purposes, the Veteran complained of right lower extremity pain and aching associated with prolonged standing and edema which was not persistent. The symptoms were relieved by rest and the use of mid-thigh support hose. On examination of the right lower extremity, the Veteran exhibited varicose veins manifested by great saphenous vein swelling from the ankle to the upper medial thigh with no edema, stasis pigmentation, eczema, or ulceration. The examiner observed that the Veteran's right lower extremity varicose veins moderately impaired his ability to participate in sports and mildly impaired his ability to shop, to exercise, to travel, and to enjoy recreation. In his August 2007 Appeal to the Board (VA Form 9), the Veteran advanced that his right lower extremity varicose veins had increased in severity and were manifested by chronic right leg pain and persistent edema which was not relieved by either elevation or the use of TED hose. He stated that his varicose veins impaired his ability to perform his normal daily activities "for any length of time or exertion." At an August 2010 VA examination for compensation purposes, the Veteran complained of right lower extremity pain associated with prolonged standing and persistent edema. The symptoms were relieved by rest and the use of mid-thigh support hose. On examination of the right lower extremity, the Veteran exhibited tortuous veins to the level of the knee with no edema, stasis pigmentation, eczema, or ulceration. The examiner observed that the Veteran's right lower extremity varicose veins moderately impaired his ability to exercise, to participate in sports, to travel, and to enjoy recreation and mildly impaired his ability to do chores and to shop. At a March 2013 VA examination for compensation purposes, the Veteran complained of painful and swollen right lower extremity varicose veins which prevented him from standing for prolonged periods of time. His symptoms were reported to be relieved by elevation of the extremity. On examination of the right lower extremity, the Veteran exhibited chronic right lower extremity pain at rest and persistent stasis pigmentation or eczema. The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal. The Veteran's right lower extremity varicose veins have been objectively shown to be manifested by tortuous veins to the level of the knee; chronic pain which impaired his ability to walk or to stand for prolonged periods of time; and persistent stasis pigmentation or eczema. The Veteran has not been shown to have persistent right lower extremity edema at any time. The Veteran asserts that his right lower extremity varicose veins warrant assignment of an evaluation in excess of 10 percent. While the Board acknowledges that the Veteran's right lower extremity varicose veins are manifested by significant impairment clearly meriting a 10 percent evaluation under the provisions of Diagnostic Code 7120, the Veteran's contentions as to experiencing persistent right lower extremity edema are belied by the multiple VA evaluations of record which reflect no evidence of edema. He has not advanced that there is documentation of such edema. In the absence of any objective findings of persistent edema, the Board finds that a schedular evaluation in excess of 10 percent is not warranted for the Veteran's right leg varicose veins at any point during the relevant period of time. 38 C.F.R. § 4.104, Diagnostic Code 7120 (2012); Hart v. Mansfield, 21 Vet. App. 505 (2007). C. Extraschedular Consideration The Board has also evaluated whether the Veteran's claim should be referred for consideration of his entitlement to an extra-schedular evaluation for his right leg varicose veins under 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular evaluation. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular evaluation. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular evaluation inadequate. A comparison between the level of severity and symptomatology of the Veteran's varicose veins with the established criteria found in 38 C.F.R. § 4.104, Diagnostic Code 7120 reflects that the diagnostic criteria reasonably describes the Veteran's disability level and symptomatology. The diagnostic criteria convey that a 10 percent evaluation will be assigned for varicose veins which are manifested by either intermittent edema or aching and fatigue in the affected leg associated with walking or standing which is relieved by elevation or the use of compression hose. The Veteran's varicose veins disability picture falls squarely within the diagnostic criteria for a 10 percent evaluation under Diagnostic Code 7120. It has not been shown to be productive of an exceptional disability picture. Therefore, the Board determines that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not merited. III. Gouty Arthritis A. Historical Review The Veteran's service treatment records note treatment for gouty arthritis. The report of a July 1974 VA examination for compensation purposes states that the Veteran was diagnosed with "gouty arthritis under treatment." In August 1974, VA established service connection for gouty arthritis; assigned a noncompensable evaluation for that disability; and effectuated the award as of May 1, 1974. B. Evaluation Gout is to be evaluated as rheumatoid arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5002. 38 C.F.R. § 4.71a, Diagnostic Code 5017 (2012). A 20 percent evaluation is warranted for rheumatoid arthritis as an active process when the diagnosis is well-established and there are one or two exacerbations a year. A 40 percent evaluation requires the presence of symptom combinations productive of a definite impairment of health objectively supported by examination findings or of incapacitating exacerbations occurring three or more times a year. Chronic residuals of rheumatoid arthritis are evaluated on the basis of limitation of motion or ankylosis under the appropriate diagnostic codes pertaining to the disability of the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Evaluations for active rheumatoid arthritis may not be combined with evaluations for residuals based on limitation of motion or ankylosis. When there are disabling chronic residuals as well as active disease, the higher evaluation will be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5002 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). At the October 2006 VA examination for compensation purposes, the Veteran reported that he last experienced an attack of gout in 1975 or 1976. He denied receiving any current treatment for gout. The examiner noted that examination of the feet revealed no evidence of active or acute gout. The Veteran was diagnosed with gouty arthritis. At the February 2007 VA examination for compensation purposes, the Veteran reported that his last acute attack of gout was in 1978. Contemporaneous uric acid levels were reported to be normal. The examiner noted that the Veteran "had no problems since last attack in 1978." In his August 2007 Appeal to the Board (VA Form 9), the Veteran reported that he experienced gout manifested by "regular flare ups and pain" which warranted assignment of a compensable evaluation. He clarified that he was not suffering from a gout attack on the day of his VA evaluation. At the August 2010 VA examination for compensation purposes, the Veteran reported that his last attack of gout had been in approximately 1978. He denied experiencing any gout symptoms since that time. The examiner identified no current gout symptoms or any chronic gout residuals. At the March 2013 VA examination for compensation purposes, the Veteran's history of gout was noted. No gout symptoms or chronic gout residuals were identified. The Veteran's gouty arthritis has been repeatedly shown on examination to be manifested by neither active symptoms nor any chronic residuals. The Veteran advances that his gout has been intermittently active. His statements are belied by the multiple VA evaluations which consistent note that no evidence of gout was identified. Further, the Veteran has presented a history to VA examiners of last experiencing a gout attack in 1978. In the absence of any current impairment associated with the service-connected disability, a compensable evaluation is not warranted for the Veteran's gouty arthritis at any point during the relevant period of time. 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5017 (2012); Hart v. Mansfield, 21 Vet. App. 505 (2007). C. Extraschedular Consideration The Board has also evaluated whether the Veteran's claim should be referred for consideration of his entitlement to an extra-schedular evaluation for his gouty arthritis under 38 C.F.R. § 3.321(b)(1). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular evaluation inadequate. The Veteran's gouty arthritis has been shown to be productive of no active symptoms or chronic residuals. Therefore, the Board determines that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not merited. ORDER An increased evaluation for the Veteran's right leg varicose veins is denied. An increased evaluation for the Veteran's gouty arthritis is denied. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs