Citation Nr: 1335298 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-34 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for left leg venous stasis with stasis dermatitis prior to April 15, 2004, higher than 40 percent from April 15, 2004, to September 26, 2007, and higher than 60 percent as of September 26, 2007. 2. Entitlement to service connection for right leg venous stasis with stasis dermatitis. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The appellant served on active duty for training from August 7 to September 24, 2002. This matter has come before the Board of Veterans' Appeals (Board) on appeal from October 2003 and October 2005 rating decisions of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The appellant was scheduled for a Board hearing before a Veterans Law Judge in August 2013. He did not report to that hearing. As the record does not contain further explanation as to why he failed to report to this scheduled hearing, the Board deems the request for a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2012). (The issue of service connection for right leg venous stasis with stasis dermatitis is addressed in the remand that follows the decision below.) FINDINGS OF FACT 1. Prior to April 15, 2004, the appellant's left leg venous stasis with stasis dermatitis was characterized by episodic pain, swelling, and stasis pigmentation. 2. From April 15, 2004, to September 26, 2007, the appellant's left leg venous stasis with stasis dermatitis was characterized by persistent pain, swelling, and stasis pigmentation, but no persistent ulceration. 3. As of September 26, 2007, the appellant's left leg venous stasis with stasis dermatitis was characterized by persistent pain, swelling, stasis pigmentation, and ulceration. CONCLUSIONS OF LAW 1. Prior to April 15, 2004, the criteria for a 20 percent rating, but no more, for left leg venous stasis with stasis dermatitis were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.104, Diagnostic Code (DC) 7120 (2013). 2. From April 15, 2004, to September 26, 2007, the criteria for a rating higher than 40 percent for left leg venous stasis with stasis dermatitis were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.30, 4.104, Diagnostic Code (DC) 7120 (2013). 3. As of September 26, 2007, the criteria for a rating higher than 60 percent for left leg venous stasis with stasis dermatitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.104, Diagnostic Code (DC) 7120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The appellant's left leg disability claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA also has a duty to assist the appellant in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the appellant's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the appellant's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's left leg claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initial Rating In Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In an October 2003 rating decision, the appellant was awarded service connection for venous stasis of the left lower extremity with status dermatitis, rated as 10 percent disabling, effective September 25, 2002. The appellant filed a claim for increase in May 2004. In a December 2004 rating decision, this evaluation was increased to 40 percent, effective April 15, 2004, based on the date of the VA treatment record that showed worsening symptoms. As this record is dated within one year of the October 2003 rating decision and directly relates to the severity of the appellant's left leg disability, it is considered new and material evidence. Thus, the October 2003 rating did not become final and this claim is properly characterized as an appeal of the initial rating. In an October 2008 rating decision, the evaluation was increased to 60 percent, effective September 26, 2007. As a result, the appellant's initial rating for this disability has been staged. See Fenderson v. West, 12 Vet App 119, 125-26 (1999)(allowing for assignment of different ratings for distinct periods of time, based on the facts found). The three current stages are a 10 percent rating from September 25, 2002, to April 15, 2004, a 40 percent rating from April 15, 2004, to September 26, 2007, and a 60 percent rating as of September 26, 2007. The Board will address the propriety of these ratings. Disability evaluations are determined by evaluating the extent to which a claimant's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Under Diagnostic Code 7120 for varicose veins, a 10 percent rating is warranted for 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. 38 C.F.R. § 4.104. A 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. 38 C.F.R. § 4.104, Diagnostic Code 7120. Id. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. Id. A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Id. A 100 percent is warranted for massive board-like edema with constant pain at rest. Id. The appellant has argued that his disability is more properly rated under DC 7121 for post-phlebitic syndrome of any kind. In this regard, the symptoms contemplated by the rating criteria for both diagnostic codes are identical. Compare 38 C.F.R. § 4.104, DC 7121 with 38 C.F.R. § 4.104, DC 7120. As there is no practical difference between the available ratings under each of these diagnostic codes, the Board will proceed with its discussion referencing the currently assigned diagnostic code. Prior to April 15, 2004 The appellant has complained of pain and swelling in his left leg dating back to his military service. An April 2003 VA general medical examination found venous stasis of the left lower extremity with stasis dermatitis and swelling of the left leg below the knee. There was one small varicose vein in the left medial thigh without sacculation or tortuousness. He had pitting edema of the left lower extremity in the pretibial region. November 2003 VA treatment records show painful episodic leg edema. He was prescribed compression hosiery to combat swelling and pain medication in case the swelling persisted despite the compression hosiery and elevation. December 2003 VA treatment records note venous stasis changes to the skin of both lower extremities with the left worse than the right. Both extremities were tender and there was mild edema in both ankles. Resolving doubt in favor of the appellant, his symptoms prior to April 15, 2004, most nearly approximate the criteria for a 20 percent rating. The record shows complaints of pain, swelling, and some stasis pigmentation. The appellant was prescribed compression stockings and told to elevate his leg, but there is no evidence of record for this time period that indicates whether this relieved his symptoms. As described below, later records show that this treatment was not completely effective. Therefore, the Board resolves doubt in the appellant's favor and finds that the criteria for a 20 percent rating were met. See 38 C.F.R. § 4.104, DC 7120. The record does not show persistent edema and stasis pigmentation as required for the next higher rating. Indeed, the appellant's edema was specifically described as episodic in the November 2003 treatment record. Therefore, the criteria for a 40 percent rating were not met. As such, the appellant is awarded a 20 percent rating, but not more, for his left leg venous stasis with stasis dermatitis prior to April 15, 2004. From April 15, 2004, to September 26, 2007 VA treatment records dated April 15, 2004, note worsening of his left leg symptoms. Specifically, the appellant reported painful lesions in addition to pain and swelling. No pitting edema was seen. In his June 2004 statement, the appellant reported muscle cramps, skin pigmentation, severe leg swelling, and "veins are blowing up." VA treatment records from July 2004 note that the appellant's pain was somewhat alleviated with elevation. The appellant reported worsening of discoloration on his shin. In September 2004, the appellant was treated with endovenous laser treatment in the left leg. The record does not reflect hospitalization or convalescence of one month or more following this procedure. In November 2004, the appellant underwent a VA examination in conjunction with this claim. This examiner found swelling, pain, and discoloration (stasis pigmentation) of the left leg, but no ulceration or eczema. This examiner noted that the appellant's edema could be slightly relieved with elevation and that he had used compression stockings in the past. A March 2005 VA treatment record described the appellant's pain and swelling as persistent. Private treatment records note pain, swelling, and discoloration of the legs. See e.g., private treatment records dated August 2004 and June 2006. In August 2005, the appellant underwent a VA examination. This examiner found swelling, pain, and hyperpigmentation of the left leg. The appellant's edema and pain could be slightly relieved with elevation. June 2006 VA treatment records again referred to red lesions. These lesions then turned black or purple, resembling purpura. In a February 2007 letter, the appellant's private physician's assistant noted treating the appellant since September 2006 for severe venous insufficiency of the major deep and superficial veins of both legs, with the left leg being worse than the right. This was described as a congenital disease. The symptoms included pain and "very firm" edema, which was rated as +3 on the pitting edema scale. This condition was treated with endovenous laser treatment and ligation. The appellant also wore compression garments. Based on the above, the appellant's symptoms from April 15, 2004, to September 26, 2007, most nearly approximate the criteria for the already assigned 40 percent rating. The record shows complaints of pain, swelling, and stasis pigmentation, which was incompletely relieved by compression stockings and elevation of the left leg. Additionally, the record shows associated lesions or ulceration. These lesions were reported intermittently and therefore did not rise to the level of persistent ulceration as required for a 60 percent rating. See 38 C.F.R. § 4.104, DC 7120. As such, the criteria for a 60 percent rating are not met. Likewise, the description of the appellant's edema as "very firm" is not found to be analogous to the symptom of Board-like edema necessary for a total (100 percent) evaluation. As this record continues on to describe the edema on the pitting scale (+3), and the other records from this time frame refer to edema that can be partially relieved with elevation and compression, the record does not support a finding of Board-like edema. Therefore, an evaluation higher than the current 40 percent rating from April 15, 2004, to September 26, 2007, is denied. The Board has also considered whether the appellant is entitled to a temporary total rating for convalescence based on his procedure in September 2004. Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. In this case, the record does not indicated that prolonged convalescence was necessary or prescribed. Indeed, records from within two days of his procedure note that he was ambulating around the house. No severe postoperative residuals or immobilization of joints was noted. Thus, the appellant is not entitled to a temporary total rating for convalescence based on his procedure in September 2004. As of September 26, 2007 By a filing dated September 26, 2007, the appellant expressed a desire for yet a higher rating. VA treatment records from May 2008 note complaints of edema, swelling, and pain that was worsened by walking. His edema was rated as +2. Hemosiderosis was present on both lower extremities. A June 2008 SSA examiner noted that both of the appellant's legs were very swollen. There was hyperpigmentation, active ulcers, and healing ulcers. The appellant was not wearing compression stockings at that time. In July 2008, the appellant underwent endo-venous ablation of the left great saphenous vein and the left anterior accessory saphenous vein. Again, the evidence does not show prolonged convalescence was necessary or prescribed. Likewise, there is no evidence that this procedure resulted in severe postoperative residuals or immobilization of joints. As such, a temporary total evaluation based on convalescence is not appropriate. 38 C.F.R. § 4.30. A September 2008 VA examination found persistent edema and discoloration in the left lower extremity. The appellant reported constant pain, which he described as aching, fatigue, throbbing, and heavy feeling. These symptoms were relieved by elevation and compression hosiery. There was ulceration, but it was not persistent. Instead it was noted to occur once a year or less. A May 2012 examination notes intermittent edema of the left leg. The examiner found that the appellant's vascular condition prevented prolonged (more than 30 minutes) standing, sitting, or walking as it causes pain in the left leg. Based on the above, the appellant's symptoms as of September 26, 2007, do not approximate the criteria for a rating higher than the already assigned 60 percent evaluation. The record shows complaints of persistent pain, swelling, stasis pigmentation, and ulceration. Again, there is no indication of the Board-like edema required for the next higher evaluation of 100 percent. See 38 C.F.R. § 4.104, DC 7120. Indeed, there is some evidence of a recent lessening of symptoms below the criteria for the existing 60 percent rating as the September 2008 VA examination noted that the appellant's symptom were relieved by elevation and compression stockings and the ulceration on his left leg was not persistent. As such, the criteria for a 100 percent rating are not met and an evaluation higher than the current 60 percent rating as of September 26, 2007, is denied. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the Board refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the appellant's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as persistent ulceration and subcutaneous induration, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the appellant's disorder based on his symptoms of pain, swelling, pigmentation, and lesions. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a total rating for compensation based on individual unemployability (TDIU), is considered an element of initial ratings when raised by the record. During the pendency of this appeal, the appellant submitted an application for TDIU. This claim was adjudicated separately. Ultimately, the appellant was awarded TDIU effective May 20, 2008, the date VA received his application for TDIU. Prior to that time, the record indicates that the appellant was working, had not been found unemployable due to service-connected disabilities, and had not raised the issue of unemployability. As such, this adjudication was adequate and the issue of TDIU is not now before the Board. ORDER A 20 percent rating, but no more, for left leg venous stasis with stasis dermatitis, prior to April 15, 2004, is granted. A rating higher than 40 percent for left leg venous stasis with stasis dermatitis, from April 15, 2004, to September 26, 2007, is denied. A rating higher than 60 percent for left leg venous stasis with stasis dermatitis, as of September 26, 2007, is denied. REMAND In a March 2008 statement and subsequent statements, the appellant has adamantly requested that the issue of service connection for venous stasis of his right leg be addressed on a direct basis and not as secondary to his service-connected venous stasis of the left leg. The appellant has repeatedly stated that he would like to withdraw his appeal only to later clarify that his wished to withdraw only the issue of secondary service connection. The Board finds that the appellant was not withdrawing his appeal with regard to service connection for venous stasis of his right leg, but rather asserting his theory of entitlement. A new theory of entitlement is not a new claim. Thus, this appeal of the service connection claim comes from the appellant's original claim of service connection submitted in February 2005. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). In this case, the appellant has been diagnosed with severe chronic venous stasis disease. See e.g., September 2006 private treatment record. Additionally, service treatment records from August 2002 note edema in the bilateral lower extremities, left worse than right. The appellant is already service connected for left leg venous stasis and has argued that his right leg venous stasis is likewise related to his military service. Thus, the evidence of record is sufficient to trigger VA's duty to provide an examination for his right leg venous stasis claim. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant underwent an August 2005 VA examination for this disability, but at that time the examiner was only asked to provide an opinion on the issue of secondary service connection. As such, this examination is inadequate for the purpose of establishing or denying direct service connection. Additionally, the appellant's private physician's assistant has referred to this as a congenital condition. As such, the examiner is asked to address whether the appellant's current right leg disability is a congenital condition. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for a VA examination to determine whether a current right leg venous disability is related to the appellant's military service. The claims folder and relevant records from Virtual VA must be made available to, and reviewed by, the examiner. (a) The examiner is asked to identify and diagnose any right leg venous disability present. (b) For each disability identified, the examiner should indicate whether there is evidence that the disability is a congenital disease. (c) If any disability is found to be congenital in nature, the examiner must provide an opinion as to whether this disability was aggravated beyond its normal progression by his short period of active duty for training. (d) The examiner should then opine, for each right leg venous disability identified, whether it is at least as likely as not (i.e., probability of 50 percent or greater) that such disability is attributable to the appellant's active duty for training, to include his documented swelling of the bilateral lower extremities. The examiner should provide reasons for the opinion. The reasons for the opinion should include consideration of the appellant's reports. The medical reasons for accepting or rejecting the appellant's statements, especially regarding continuity of symptoms since service, should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Thereafter, readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs