Citation Nr: 1502743 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 07-33 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for left varicose veins, rated as 10 percent disabling prior to June 11, 2010, and currently-rated 20 percent disabling. 2. Entitlement to an increased rating for right varicose veins, rated as 10 percent disabling prior to June 11, 2010, and currently-rated 20 percent disabling. REPRESENTATION Appellant represented by: National Veterans Organization of America, Inc. WITNESS AT HEARING ON APPEAL Veteran, Spouse, E.L. ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ). In April 2012, the Board issued a decision that, in part, denied the claims of entitlement to increased ratings for varicose veins, bilaterally, and remanded the issue of entitlement to service connection for residuals of a right ankle fracture for further development. Service connection for residuals of a right ankle fracture was granted by the RO in November 2012. The Veteran did not file a notice of disagreement with respect to the initially-assigned rating, and as such that issue is not in appellate status. In September 2013, pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board sent the Veteran a letter notifying him of an opportunity to receive a new decision from the Board that would correct any potential due process error relating to the duties of the VLJ that conducted the March 2010 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a VLJ has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked). In October 2013, the Veteran responded that he wished to have the prior decision vacated and a new one issued in its place. Accordingly, the portion of the April 2012 Board decision that denied the claims of entitlement to increased ratings for left and right varicose veins was vacated by the Board in June 2014. Pursuant to the directives of Bryant, the Veteran was scheduled for an additional hearing before the undersigned VLJ in December 2014. Despite his request to vacate the April 2012 Board decision based on Bryant insufficiency, the Veteran failed to report for his scheduled hearing. The request is deemed withdrawn, and the Board finds that the directives of Bryant have been satisfied in this case. See 38 C.F.R. § 20.704(d) (2014), see also Bryant. FINDINGS OF FACT 1. Prior to June 11, 2010, left varicose veins were manifested by intermittent edema, and the most probative evidence of record fails to demonstrate the presence of persistent edema. 2. Prior to June 11, 2010, right varicose veins were manifested by intermittent edema, and the most probative evidence of record fails to demonstrate the presence of persistent edema. 3. From June 11, 2010, left varicose veins are manifested by edema without stasis pigmentation, eczema, or ulceration. 4. From June 11, 2010, right varicose veins are manifested by edema without stasis pigmentation, eczema, or ulceration. CONCLUSIONS OF LAW 1. Prior to June 11, 2010, the criteria for an evaluation in excess of 10 percent for left varicose veins have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); §§ 4.7, 4.104, Diagnostic Code 7120 (2014). 2. Prior to June 11, 2010, the criteria for an evaluation in excess of 10 percent for left varicose veins have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); §§ 4.7, 4.104, Diagnostic Code 7120 (2014). 3. From June 11, 2010, the criteria for an evaluation in excess of 20 percent for left varicose veins have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); §§ 4.7, 4.104, Diagnostic Code 7120 (2014). 4. From June 11, 2010, the criteria for an evaluation in excess of 20 percent for left varicose veins have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); §§ 4.7, 4.104, Diagnostic Code 7120 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially-complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with proper VCAA notice via letters dated in December 2005, March 2006, and May 2008. Moreover, in March 2010, the Veteran was afforded a hearing conducted before the undersigned Veterans Law Judge (VLJ). Although it was determined that this hearing may have been insufficient pursuant to Bryant, as noted in the preceding section, the Veteran failed to report for an additional, scheduled hearing. As such, VA has fully satisfied its duty to assist the Veteran by providing an in-person hearing pertaining to the issues on appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2014). With regard to these claims, the Board notes that the Veteran has been afforded adequate VA examinations which reflected a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and opinions supported by medical rationale. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Increased Ratings Disability evaluations are determined by evaluating the extent to which a 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). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). If two evaluations are potentially-applicable, the higher evaluation 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 (2014). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The AOJ has assigned staged ratings in this case, and the Board concurs that the disabilities discussed herein warrant staged ratings. The Veteran has appealed his assigned evaluations for varicose veins. His disabilities are rated pursuant to Diagnostic Code 7120. Under Diagnostic Code 7120, a non-compensable rating is warranted for asymptomatic, palpable, or visible 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; a 20 percent rating is warranted for varicose veins manifested by persistent edema, incompletely-relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating requires persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating warrants persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating requires massive board-like edema with constant pain at rest. Turning to the evidence of record, in September 2005, the Veteran expressed that his chronic, bilateral varicose veins had worsened, especially the right leg. He reported swelling, burning, and itching. He also related that his legs felt heavy. During a February 2006 VA compensation and pension examination, the Veteran denied edema of the lower extremities. Examination revealed no edema, eczema, and/or stasis pigmentation of either leg. Varicose veins of the right and left lower extremities, without venous insufficiency, were diagnosed. During a July 2007 VA compensation and pension examination, the Veteran reported that his legs felt heavy and that he used an elastic compression hose daily without relief. A medical history noted the presence of persistent edema, no skin discoloration, constant pain even at rest, and aching, throbbing, heavy feelings, and fatigue present after prolonged walking or standing. There was no history of ulceration. Examination revealed that edema was present, but that it was not massive or board-like. There was no stasis pigmentation or eczema. Bilateral varicose veins, symptomatic, were diagnosed. In his October 2007 VA Form 9 (Substantive Appeal), the Veteran asserted that he had persistent edema which was not fully-relieved by elevating his extremities. Per the Veteran, he elevated his legs frequently but still had pain and swelling. He did not achieve complete relief as the burning, pain and swelling continued. In the December 2007 VA compensation and pension examination, a medical history noted the presence of persistent edema, persistent skin discoloration, constant pain even at rest, and aching, throbbing, heavy feelings, and fatigue present after prolonged walking or standing. There was no history of ulceration. There was no history of edema that was massive or board-like, and no stasis pigmentation or eczema was identified. Examination revealed visible, large varicose veins of the upper and lower leg. There was no edema, stasis pigmentation or eczema, and/or ulceration of either leg. During his March 2010 hearing, the Veteran reported that his varicose veins had worsened and where not getting better. He reported that his legs felt heavy. Per the Veteran, he had problems walking and sleeping at night, and that the pain in the knee, ankle and varicose veins woke him up. At the time of the August 2010 VA compensation and pension examination, the Veteran reported that his varicose veins worsened in the last 10 to 15 years (with pain and swelling of the legs). His varicose veins were palpable from the thigh down to the leg. Edema was present, though not massive, and it was board-like. There was no stasis pigmentation or eczema, and no ulceration was present. Right and left varicose veins were observed manifested by mild to moderate functional limitation. The examiner diagnosed superficial varicose veins whose pathophysiology was tied to an incompetency of the saphenous vein valve which produced some sort of insufficiency. Per the examiner, the Veteran's symptomatology generally mirrored the VA evaluation conducted in 2006. During his June 2011 VA compensation and pension examination, the Veteran reported that his varicose veins worsened in the last 10 to 15 years with pain and swelling of the legs. While edema was present and board-like, it was not massive. There was no stasis pigmentation, eczema, or ulceration present. As noted above, the Veteran has appealed the denial of an increased rating for right and left varicose veins, rated as 10 percent disabling prior to June 11, 2010. To warrant a higher rating during this period of time, the evidence must show varicose veins manifested by persistent edema, incompletely-relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. Based on the evidence presented, the Board finds that an evaluation in excess of 10 percent for right and left varicose veins, prior to June 11, 2010, is not warranted. During this time period, the objective evidence and subjective reports of edema were inconsistent. Examination in July 2007 revealed the presence of edema, and in October 2007, the Veteran reported persistent edema which was not fully-relieved by elevating his extremities. However, the Veteran explicitly denied edema in February 2006, and examination at that time failed to reveal the presence of edema. Examination in December 2007 noted a history of edema, but upon examination, edema was not shown. Similarly, there was no stasis or eczema identified during this period. Therefore, the probative evidence of record demonstrates edema, during this appellate period intermittent, was intermittent in nature. Further, while the Veteran reported aching and fatigue in his leg after prolonged standing or walking during this time frame, such symptoms were noted to have been relieved by elevation or compression hosiery. During the February 2006 examination, the Veteran related that at rest he had no problem with pain and discomfort. Also, while examinations in July 2007 and December 2007 showed a history of aching, throbbing, heavy feelings, and fatigue after prolonged walking or standing, symptoms were relieved by elevation or compression hosiery. Accordingly, the evidence, taken in the aggregate, does not support an evaluation in excess of 10 percent for varicose veins during the initial appellate period. The Board acknowledges the Veteran's reports of persistent edema, swelling, burning sensation with itching, leg heaviness, and his complaints of problems walking and sleeping at night during this period. The Board finds that the Veteran is competent to report such symptoms. However, his claims of persistent edema during this time frame are not credible in light of the objective evidence of record showing otherwise. The more credible and probative evidence establishes that, during this period, the Veteran did not have persistent edema. The Board therefore that the Veteran's reports of persistent edema are not credible in light of the showing of no edema during examinations in February 2006 and December 2007. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board also recognizes that the Veteran reported in July 2007 that his that his legs felt heavy, and that he used an elastic compression hose daily without relief. However, as noted in July 2007 and December 2007 examinations, the symptoms of heaviness, aching, fatigue and throbbing were noted to have been relieved by elevation or compression hosiery. The Board has considered the Veteran's statements, however the more credible and probative evidence establishes that the criteria for a 20 percent rating were not met during this appellate period. Turning to the current evaluation of 20 percent, to warrant a higher rating, the evidence must demonstrate persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. In light of the above findings, the Board finds that the criteria for the next higher rating have not been met. In this regard, at most, examination has revealed the presence of edema. However, there is no showing of stasis pigmentation, eczema, or ulceration on examination. As such, findings during the latter appellate period do not justify a higher evaluation under Diagnostic Code 7120. In sum, the evidence establishes that the Veteran's symptoms do not more closely approximate the criteria for a 40 percent rating, or any other evaluation. Neither the lay or medical evidence of record demonstrates that the criteria for a higher rating have been met. The Board is aware that board-like edema was reported in 2010. However, the examiner specifically established that the edema was not massive. Such finding would not warrant a higher evaluation, to include a 100 percent evaluation. Accordingly, the Veteran's symptomatology does not reach the level contemplated by a 40 percent or higher rating, and his claim for an evaluation in excess of 20 percent for left and right varicose veins, from June 11, 2010, is denied. The Board has also considered all potentially-applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for any disability. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted in this case. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. at 115. Here the schedular rating criteria used to rate the Veteran's varicose veins reasonably-describe the Veteran's disability level and symptomatology during each appellate period. As noted in detail above, a rating in excess of 10 percent, prior to June 11, 2010, was not warranted because the most probative evidence of record failed to demonstrate persistent edema. Thereafter, the record was silent for objective evidence of stasis pigmentation. His manifestations during each of these appellate periods are consistent with his assigned ratings. As the Veteran's disability picture is reasonably contemplated by the rating schedule, the assigned schedular evaluation is adequate and referral for consideration of an extra-schedular evaluation is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009), has been raised. The Board notes that the Veteran has not specifically alleged that he is unemployable on account of his varicose veins, and no VA examiner of record found that such disability had a significant impact on the Veteran's occupation. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service-connected disability. In reaching the above-stated conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for left varicose veins, rated as 10 percent disabling prior to June 11, 2010, and currently-rated 20 percent disabling, is denied. Entitlement to an increased rating for right varicose veins, rated as 10 percent disabling prior to June 11, 2010, and currently-rated 20 percent disabling, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs