Citation Nr: 1337970	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  11-26 549A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an increased rating for varicosities of the right lower extremity, currently rated at 20 percent disabling.


ATTORNEY FOR THE BOARD

J. Taylor, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1969 to January 1998.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in March 2009 by a Regional Office (RO) of the Department of Veterans Affairs (VA).  

Documents on Virtual VA are either duplicative of the evidence of record or are not pertinent to the present appeal.  The Veterans Benefits Management System (VBMS) does not include any documents.  


FINDING OF FACT

Throughout the entire timeframe on appeal, the Veteran's varicose veins of the right lower extremity have been manifested by persistent edema (not relieved by elevation) and stasis pigmentation, but without ulcerations or massive board like edema with constant pain at rest.


CONCLUSION OF LAW

Throughout the entire timeframe on appeal, the criteria for a 40 percent rating, but no greater, for varicose veins of the right lower extremity is warranted.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7120 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

      Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by letter dated in December 2008.  The Veteran was notified of the evidence needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim.  

      Duty to Assist

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, post-service treatment records, and lay statements have been associated with the record.  

Additionally, during the appeal period, the Veteran was afforded VA examinations in January 2009, August 2009, and October 2012.  The Board has carefully reviewed the VA examinations of record and finds that the examinations, along with the other evidence of record, are adequate for rating purposes.  Specifically, these examination reports contain sufficient findings to rate the Veteran's disability under the appropriate diagnostic criteria.  Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained.  

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.

II.  Rating Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38
U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7. 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

III.  Varicosities of the Right Lower Extremity

The Veteran contends that his varicosities of the right lower extremity warrant a rating in excess of 20 percent.  He claims that he deals with pain and swelling on a daily basis, and he no longer has a normal, equal gait.  See April 2009 notice of disagreement and October 2011 Form 9 Appeal.

By way of background, service connection for varicosities of the right lower extremity was originally awarded in an August 1998 rating decision.  A noncompensable rating was assigned, effective February 1, 1998.  In a subsequent May 2003 rating decision, the RO increased the Veteran's rating for varicosities of the right lower extremity to 10 percent, effective February 11, 2003.  The Veteran filed his current claim for increase in December 2008, and a March 2009 rating decision increased the Veteran's rating for varicosities of the right lower extremity to 20 percent, effective December 12, 2008.  

Under Diagnostic Code 7120, a 10 percent rating is warranted for intermittent edema or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery; a 20 percent
rating is warranted for persistent edema, incompletely relieved by elevation of an extremity, with or without beginning stasis pigmentation or eczema; a 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; a 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and a maximum 100 percent rating is warranted for massive, board-like edema with constant pain at rest.  38 C.F.R. § 4.104, Diagnostic Code 7120.  

Upon careful review of the evidence of record, the Board finds that the Veteran is entitled to a 40 percent rating, but no higher, for his varicose veins in the right lower extremity.  

The January 2009 VA examination showed edema and stasis pigmentation of the right lower extremity.  The edema was not massive or board-like, and ulcerations were not present.  The edema was partially relieved by elevation of the extremity and rest.  The Veteran reported experiencing pain at rest, and aching, fatigue, and a heavy feeling after prolonged walking or standing.  The Veteran's varicosities were minimally visible, but palpable, and appeared as bulges in his calf.  The August 2009 VA examiner reported the same findings.  An April 2010 private treatment record from Dr. K.B. noted a brown pigmented lower extremity and indicated that the Veteran had lower extremity stasis pigmentosa.  The October 2012 VA examination showed that the Veteran has persistent edema and incipient stasis pigmentation of the right lower extremity.  There was no indication of massive or board-like edema, and ulcerations were not present.  The Veteran reported experiencing constant pain at rest, and aching and fatigue in his leg after prolonged walking or standing.  The Veteran reported that the swelling in his right leg persists, and he does not obtain relief when his leg is elevated.  He explained that the pain persists 24 hours a day and he has to stop performing yard work after an hour to rest his right leg and let the pain pass.

The Board acknowledges that the Veteran has had periods when his symptoms were less severe than currently noted.  In an effort to allow for the greatest degree of stability of the disability evaluation as per 38 C.F.R. § 3.344(a), however, the Board finds that the more favorable 40 percent evaluation for the entire timeframe on appeal should be assigned.

Although the Veteran reported that he had skin lesions in one instance in December 2008, all other lay and medical evidence of record does not show that he has persistent ulcerations.  Thus, the evidence does not more nearly approximate the criteria for the next higher rating of 60 percent under Diagnostic Code 7120.  Likewise, he does not have massive board like edema with constant pain at rest as contemplated by a 100 percent evaluation.  

In sum, a 40 percent rating, but no higher, for varicosities of the right lower extremity is warranted for the entire appeal period. 

IV.  Additional Considerations

The Board has considered whether the Veteran is entitled to staged ratings for his varicosities of the right lower extremity during the period on appeal.  The Board finds that staged ratings pursuant to Hart are not appropriate.  

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating.  38 C.F.R. 
§ 3.321(b)(1).  The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical.
 
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. 
 
If the criteria reasonably describe the veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected varicosities of the right lower extremity.  The Veteran's varicosities of the right lower extremity are manifested by pain, pigmentation, and swelling.  The ratings assigned contemplate these impairments.  For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).

Finally, there is no evidence of record that the Veteran's varicosities of the right lower extremity have markedly interfered with employment; therefore remand for a total disability rating based on individual unemployability is not appropriate.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

A 40 percent rating for service-connected varicosities of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs