Citation Nr: 1334220 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-00 018A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for right lower extremity varicose veins, currently evaluated as 40 percent disabling. 2. Entitlement to an increased rating for left lower extremity varicose veins, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from April 1946 to February 1948 and from June 1952 to December 1952. This matter comes before the Board of Veterans' Appeals from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that in December 2009 substantive appeal, the Veteran raised the issue of entitlement to service connection for a right hip disability on a secondary basis. This issue was adjudicated by the agency of original jurisdiction (AOJ) in a July 2011 rating decision and denied. The Veteran did not thereafter disagree wit that decision. FINDINGS OF FACT 1. Right lower extremity varicose veins are manifested by stasis discoloration, persistent edema, eczema, and subjective complaints of aching, fatigue, and pain. 2. Left lower extremity varicose veins are manifested by stasis discoloration, persistent edema, eczema, and subjective complaints of aching, fatigue, and pain. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for right lower extremity varicose veins have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.59, 4.104, Diagnostic Code 7120 (2013). 2. The criteria for an evaluation in excess of 40 percent for left lower extremity varicose veins have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.59, 4.104, Diagnostic Code 7120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. A letter dated in December 2006, prior to the adjudication of the Veteran's claims, discussed the evidence necessary to establish higher evaluations for varicose veins. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised him of the status of his claims. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to VA's duty to assist, VA treatment records and private treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the examinations are adequate in that they were conducted by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions. The Board observes that the Veteran, in his December 2009 substantive appeal, took issue with a June 2009 examination which apparently took place in the context of outpatient treatment, noting that it was brief and cursory. However, he has identified no specific defect in this treatment aside from its duration. Moreover, the Veteran was afforded a more recent examination in June 2012, and he has not asserted that there is any deficiency in this VA examination. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. 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. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1 , 4.2 (2013); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that uniform evaluations are warranted for the period considered. In February 2007 the Veteran stated that he had constant edema in his left ankle. He also stated that he had pigmentation changes and sensitivity. On VA examination in August 2007, the Veteran's history was reviewed. He reported swelling, pain, aching, and fatigue. He indicated that his feet looked purple in color. He endorsed difficulty walking and standing. He noted that he wore thick compression socks to relieve his swelling. Physical examination revealed strong dorsalis pedis and posterior tibial pulses on the right side. On the left, pulses were slightly decreased compared to the right side. There was no evidence of ulceration. There were multiple superficial veins bilaterally from the feet extending well up to the middle of the legs. There was no evidence of pigmentation. There was edema that was board-like in nature. The veins were soft. Some venous lakes were present with no phlebolith palpated. Mild stasis discoloration was noted at the ankles. The diagnosis was bilateral varicose veins, superficial and deep veins, of both lower extremities. An August 2007 VA arterial study showed mild atherosclerosis of the right femoral artery and minimal to mild atherosclerosis of the left superficial femoral artery. In November 2007, the Veteran stated that he experienced aching, restlessness, and itching of his lower legs. He indicated that he had brown discoloration with multiple red spots at both ankles, indicating stasis and eczema. He noted that he wore compression stockings but still had visible swelling. A June 2008 VA outpatient record notes that there was no pedal edema. Varicose veins were noted in both lower legs. An additional VA examination was carried out in June 2012. The Veteran's history was reviewed. He endorsed persistent edema, skin discoloration, and pain. He indicated that he had aching and fatigue after prolonged walking and standing. He stated that he had ulceration four to six times per year. Physical examination revealed boardlike edema that was not massive. Stasis pigmentation and eczema were noted form the patella to the distal part of the feet. There was no ulceration. There were palpable varicosities from the calves to the dorsum of the feet. Most were superficial and painful with palpation. The diagnosis was bilateral lower extremity varicosities. The examiner noted that there were effects on the Veteran's daily functioning. She noted that the disability prevented exercise and sports, and had severe effects on chores, shopping, and traveling. The Veteran's varicose veins are evaluated pursuant to 38 C.F.R. § 4.104, diagnostic code 7120. That diagnostic code provides a 40 percent evaluation where there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is applicable where there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Varicose veins with massive boardlike edema with constant pain at rest warrant a 100 percent evaluation. A Note to this provision indicates the evaluations are for involvement of a single extremity. If more than one extremity is involved, each extremity is evaluated separately and combined under § 4.25 using the bilateral factor (§ 4.26) if applicable. The Veteran's varicose veins are evaluated as 40 percent disabling for each leg. This rating contemplates persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A higher evaluation requires evidence demonstrating persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. The record reflects that the Veteran has stasis discoloration, persistent edema, and eczema. He reports that he does experience ulceration; however, examinations during the course of this appeal have been negative for ulceration. As such, it cannot be stated that the reported ulceration is persistent. Accordingly, the Board finds that the currently assigned 40 percent evaluations are appropriate, and that the criteria for a 60 percent evaluation have not been met or approximated. To the extent that the Veteran asserts that his two 40 percent evaluations should equate to a total evaluation of 80 percent, the Board notes that, as stated above, the separate 40 percent ratings were combined using § 4.25, Table I, as required by regulation. Application of the evaluations for the Veteran's varicose veins to Table I resulted in a combined rating of 64 percent. With the addition of 10 percent under § 4.26, the bilateral factor, the resulting combined rating is 74 percent; converted to the nearest degree divisible by 10, the resulting rating is 70 percent. Thus, the combined 70 percent evaluation is correct under the applicable regulatory provisions. In reaching its conclusion, the Board has considered the Veteran's reports regarding his symptoms. While the Board finds the Veteran's statements regarding the manifestations of his varicose veins credible, it has determined that the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned 40 percent evaluations are appropriate. Finally, the Board observes that the Veteran has not alleged, nor does the evidence suggest, that he is rendered unemployable in substantial part due to the service-connected disability described above. Accordingly, this evidence does not raise a claim for a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2010). Extraschedular Consideration Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted 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. See 38 C.F.R. § 3.321(b)(1) (2013); see also 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 Veterans entitled to an extraschedular rating. First, the Board must first 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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, 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 Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected bilateral lower extremity varicose veins. The medical evidence fails to demonstrate, at any time during the appellate period, symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's varicose veins is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Even still, the record does not show that the Veteran has required hospitalization, or has lost significant periods of work, due to his lower extremity varicose veins. In short, the evidence does not support the proposition that the Veteran's service connected disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). ORDER Entitlement to an evaluation in excess of 40 percent for right lower extremity varicose veins is denied. Entitlement to an evaluation in excess of 40 percent for left lower extremity varicose veins is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs