Citation Nr: 1335362 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-00 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 40 percent for varicose veins of the left lower extremity. 2. Entitlement to an initial evaluation in excess of 40 percent for varicose veins of the right lower extremity. 3. Entitlement to a finding of total disability based on individual unemployability (TDIU), prior to April 26, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Air Force from August 1954 to September 1957. He was additionally a member of the Army National Guard from September 1974 to July 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the United States Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, which granted service connection for varicose veins of the left and right legs, each rated 20 percent disabling, effective from February 18, 2003. That decision arose out of a May 2008 decision by the Board, which reopened the claim, and remanded the matter for additional development and adjudication on the merits. While processing the remand directives, the AMC granted the benefit sought. The Veteran then disagreed with the assigned evaluations, and it is the appeal on this question which has come to the Board for the first time. Jurisdiction over the new appeal was transferred to the Roanoke, Virginia, Regional Office (RO) based on the Veteran's residence. During the pendency of the appeal regarding evaluation, the RO granted increased, 40 percent evaluations for left and right leg varicose veins, in an October 2009 rating decision. The grants were effective from the date of service connection, February 18, 2003. This was not a grant of the maximum benefit, and the Veteran has indicated his desire to pursue the appeals further. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Throughout the pendency of the claim, the Veteran has indicated that he is prevented from working by service-connected disabilities, giving rise to a claim for TDIU as part of his claims for increase. A separate, formal claim for TDIU was received in April 2010, and entitlement to that benefit was granted by the RO in an August 2010 rating decision, effective from April 26, 2010. However, the RO failed to consider entitlement to TDIU prior to that date under Rice, supra. Accordingly, the issues have been modified to reflect the Veteran's allegations and the precedential case law. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. At no time since February 2003 have the left or right lower extremity varicose veins been manifested by persistent ulceration. 2. Service-connected left and right lower extremity varicose veins prevent the Veteran from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 40 percent for varicose veins of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7120 (2013). 2. The criteria for an initial evaluation in excess of 40 percent for varicose veins of the right lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7120 (2013). 3. The criteria for a finding of TDIU prior to April 26, 2010, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). With regard to TDIU, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With regard to the evaluations for varicose veins, the appeal arises from the Veteran's disagreement with the initial evaluation following the grants of service connection. Once service connection is granted the claims are substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA's duty to assist the Veteran in the development of the claims is not abrogated by the granting of service connection. This duty includes assisting the Veteran 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 Veteran's VA treatment records and private treatment records have been obtained; service treatment records have been certified to be unavailable by the National Records Personnel Center (NPRC), and the Veteran was properly notified. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence that he is in receipt of disability benefits from the Social Security Administration (SSA); it appears his SSA benefits are age-related. 38 C.F.R. § 3.159(c)(2). Further, as no SSA decision or development is shown to have taken place since February 2003, the period under consideration here, any records from SSA would relate to the disability status prior to service-connection. Those records would not be relevant to the current inquiry, therefore, and need not be obtained. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). While the history of a disability must be considered, VA records are sufficient for that purpose. VA examinations were conducted in July 2008 and May 2010. The Veteran has not argued, and the record does not reflect, that these examinations are inadequate for rating purposes. The examiners made all required clinical findings to permit application of the rating criteria; the examinations are adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Further, there is no allegation of worsening since May 2010, nor do treatment records indicate such. Examination for updated findings is not necessary. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Varicose Veins As the same analysis applies to both the left and right legs, they are discussed together here. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Varicose veins are evaluated under the criteria set forth in Diagnostic Code 7120. The current 40 percent evaluations are assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A higher 60 percent evaluation is assigned per extremity for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A total evaluation is assigned for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Code 7120. A review of the evidence of record reveals no showing of persistent ulcerations of the lower extremities at any time during the appellate period. Private records from 2002, 2003, and 2010 show no active ulcerations or lesions at any time. VA treatment records from 2002 to 2013 do show some history of ulcerations. In 2002, prior to service connection, doctors noted a history of chronic recurrent ulcerations of the feet. However, by February 2003, all such ulcers had healed. Doctors indicated that uncontrolled edema made the Veteran susceptible to development of the lesions, and it appears that the edema came under good control in late 2002 or early 2003. Some sores were noted around the times of the Veteran's 2003 and 2006 left ankle surgeries, related to the wearing of splints or walking casts, but these healed quickly and have not recurred. A right foot ulceration was noted in March 2004, but also healed. Neither the July 2008 or May 2010 VA examiners noted any ulceration or skin breakdowns, and in recent VA treatment records, the Veteran has denied any history of foot ulcerations at all. A review of the Veteran's statements and descriptions of his varicose vein disabilities has centered on swelling and pain in the legs; he has not reported ulcerations. It is clear from the competent and credible evidence of record that there has not been any "persistent ulceration" at any time during the appellate period. The three or four incidents of ulcers over the decade of service connection did not occur regularly, and each healed completely. The applicable criteria require the presence of persistent ulceration for assignment of a higher 60 percent evaluation in addition the other named manifestations. The Board notes that the currently assigned 40 percent evaluations consider the potential presence of "intermittent ulceration," a far more accurate description of the Veteran's ulcer manifestations than "persistent." The Board has considered whether assignment of a yet higher, 100 percent evaluation under the Schedule is warranted; massive board-like edema with constant pain at rest would support such a rating, regardless of the degree or frequency of ulceration. However, although the Veteran has consistently reported pain in his legs, such reports center around use. Further, the noted edema has never been described as massive or board-like. Prior to 2003, when the symptom apparently was not controlled, this was possible, but during the appellate period doctors note the swelling and edema of the lower extremities to be of a lesser degree and frequency. At times, it is not present at all, as private treatment records demonstrate in January 2010. The July 2008 examiner stated that edema was not persistent. A total Schedular evaluation is not warranted. Consideration has also been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the criteria are adequate, as they fully contemplate the Veteran's reported symptoms, including edema and pain. The Schedule also allows for higher evaluations than currently assigned for varicose veins, for increased levels of impairment. Therefore, extraschedular evaluation is not appropriate, and need not be further discussed. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). The weight of the evidence is against the claims; there is no doubt to be resolved. Entitlement to an evaluation in excess of 40 percent for either the left or right leg varicose veins is not warranted. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of determining eligibility, a "single disability" includes "disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable." 38 C.F.R. § 4.16(a)(1). The Veteran is service-connected only for his varicose veins. These conditions combine to an evaluation of 70 percent when the bilateral factor, an additional ten percent of the combined value of the disabilities for conditions affecting the left and right limbs either above or below the waist, is considered. 38 C.F.R. §§ 4.25, 4.26. Additionally, as both conditions affect the bilateral extremities, they may be considered to be a single disability. 38 C.F.R. § 4.16(a). Under either analysis, the Veteran meets the threshold eligibility requirement. The question, then, is whether the Veteran is factually unemployable for the period prior to April 26, 2010. The Board notes that the Veteran's level of disability, educational achievement, work history, and vocational training have been the same throughout the appellate period. The May 2010 VA contract examiner stated that the Veteran's bilateral varicose veins impact his usual occupation, as reported on the VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, as a driver with a transportation company. The examiner further stated that the impact was to prevent the Veteran from standing or walking for prolonged periods. He noted that the Veteran had not worked since June 1989. On this evidence, in an August 2010 rating decision, the RO determined that these facts supported a finding that the Veteran was unable to obtain or retain substantially gainful employment, and granted TDIU entitlement effective from April 26, 2010, the date of receipt of the VA Form 21-8940. While the basis for the RO's determination is unclear, given that the medical evidence only addressed the Veteran's ability to work as a driver, as opposed to his functional capacity to perform in other types of work, the fact of the matter is that the RO granted TDIU. The grant was effectuated based on the evidence of record, which is consistent throughout the appellate period with regard to the Veteran's ability to work. Because the issue of TDIU is considered part and parcel with the initial rating claim on appeal, pursuant to Rice v. Shinseki, supra, entitlement to TDIU for the period prior to April 26, 2010, must be found warranted. ORDER An initial evaluation in excess of 40 percent for varicose veins of the left lower extremity is denied. An initial evaluation in excess of 40 percent for varicose veins of the right lower extremity is denied. Entitlement to a finding of TDIU, prior to April 26, 2010, is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs