Citation Nr: 1342935 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-13 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for postoperative left leg varicose veins. 2. Entitlement to an evaluation in excess of 10 percent for postoperative right leg varicose veins. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1980 to December 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Columbia, South Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied ratings in excess of 10 percent for left and right leg varicose veins. In April 2012, the Board remanded the above issues for additional development. All requested actions having been taken, the claims are returned to the Board for further appellate consideration. The Board notes in passing that in the January 2013 supplemental statement of the case, the RO inadvertently identified the issue pertaining to the left leg disability as entitlement to a disability evaluation in excess of 20 percent, rather than the correct issue of entitlement to a disability evaluation in excess of 10 percent. Although the proper issue was discussed in the reasons and bases of that decision, the "Decision" incorrectly indicated that the 20 percent disability rating was continued. The Board will, of course, limit its review to the correct issue on appeal. 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). Here, although there are indications of unemployment, to which varicose veins contributed, the allegations and evidence indicate that unemployability was caused by a number of different service-connected conditions. While these may be considered a "single disability" for purposes of 38 C.F.R. § 4.16, there is no allegation, express or inferred, that varicose veins alone rendered the Veteran unemployable. Therefore no TDIU claim is inferred as part of the current appeal for increased evaluations. The Board notes that TDIU was granted, effective January 28, 2011, in a January 2013 rating decision; the Veteran has not yet appealed the assigned effective date. 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. FINDING OF FACT Left and right postoperative varicose veins are manifested by pain, with no ulcerations, discoloration, or other skin condition, or showing of more than intermittent mild edema; compression hose are effective in treatment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for postoperative left leg varicose veins 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 evaluation in excess of 10 percent for postoperative left leg varicose veins 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). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A July 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With regard to notice, the Board is aware that the January 2013 supplemental statement of the case (SSOC) incorrectly lists the current left leg evaluation as 20 percent when identifying the issues addressed. Throughput the remainder of the document, however, and in all other correspondence noting the appellate issue, the correct 10 percent evaluation is set forth. Her representative correctly identified the issues in a November 2013 informal hearing presentation. The Veteran has therefore not been prejudiced by the typographical error in the SSOC. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 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 she is in receipt of disability benefits from the Social Security Administration (SSA); the SSA confirmed that no benefits were being paid in January 2008. 38 C.F.R. § 3.159(c)(2). Multiple VA examinations have been afforded the Veteran; examiners have made all required clinical findings necessary for application of the Rating Schedule criteria. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran has not argued, and the record does not reflect, that these examinations are inadequate for rating purposes. No formal hearing was conducted in this case. An informal local hearing was held with a Decision Review Officer (DRO) in February 2009. Although the Veteran had requested a hearing before a Veterans Law Judge, to be held at the RO, in September 2009 correspondence, she withdrew that request in March 2010. 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). Analysis As the discussion of the left and right legs is identical, they are addressed 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 Diagnostic Code 7120, which provides that for each affected extremity, asymptomatic palpable or visible varicose veins are rated noncompensable (0 percent). With intermittent edema or aching and fatigue after prolonged standing or walking, and symptoms are relieved by elevation or compression hosiery, a 10 percent evaluation is assigned. Persistent edema, incompletely relieved by elevation, with or without beginning stasis pigmentation or eczema, is rated 20 percent disabling. A 40 percent evaluation is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Massive board-like edema with constant pain at rest is rated totally (100 percent) disabling. Review of VA treatment and examination reports from 2007 to the present reveal that at most, doctors have noted trace edema of the lower extremities, as in January 2008. All other records report no edema of either leg. The Veteran reported "a lot of swelling" at her October 2012 VA examination, however, and in June 2012 a private doctor reported 1+ edema in the right leg. The edema was not present in August 2012, however, and cannot therefore be termed persistent. No pigmentation changes of the legs are reported or complained of, nor is eczema or similar skin condition. There is no complaint of or clinical finding related to any ulceration of the lower extremities. The rating criteria for varicose veins in excess of 10 percent are successive. Successive rating criteria are where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Any Schedular evaluation in excess of 10 percent requires a finding of at least persistent edema, which is not shown here at any time during the appellate period. Any swelling or edema comes and goes, based on ongoing treatment records from VA and private sources. Additionally, none of the complications of varicose veins, such as ulceration, stasis pigmentation, or eczema, which are required for evaluations in excess of 20 percent, are noted at any time. In the absence of the baseline criteria of persistent edema, no Schedular evaluation in excess of 10 percent may be assigned. The Board notes that the Veteran's primary complaint is pain, which she reports has progressed and is now continual, preventing her from activity or even sitting. Regardless of the presence of edema, she maintains, a higher level of functional impairment is imposed upon her. The Board has therefore considered 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. However, the Board finds the Schedular criteria to be adequate, as they include consideration of the Veteran's complaints of pain. The criteria for 10 percent consider "aching" with use, and the 100 percent criteria pair "constant pain at rest" with edema. Intermediate levels of impairment, in the successive scheme set forth by the regulations, must therefore also consider pain and its functional impact. Simply put, the Schedule provides increased evaluations for, in part, the symptom complained of by the Veteran. As pain is contemplated by the Schedule, further discussion of 38 C.F.R. § 3.321 is not warranted. The preponderance of the evidence is against the claims; there is no doubt to be resolved. Evaluations in excess of 10 percent for either the left or right leg postoperative varicose veins are not warranted. ORDER An evaluation in excess of 10 percent for postoperative left leg varicose veins is denied. An evaluation in excess of 10 percent for postoperative right leg varicose veins is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs