Citation Nr: 1758041 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-11 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for arthritis of the joints (hands, fingers, toes of both-feet, bilateral knees, and bilateral elbows), to include as secondary to service-connected seborrheic dermatitis, scalp. 2. Entitlement to an increased disability rating for varicose veins, left lower extremity, currently rated as 20 percent disabling prior to July 6, 2011 and 10 percent disabling from July 6, 2011. 3. Entitlement to an increased disability rating for varicose veins, right lower extremity, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from March 1974 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was previously remanded by the Board in June 2014. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. As noted above, this case was previously remanded by the Board for additional development in June 2014. At that time, the Board also remanded the issue of entitlement to restoration of a 20 percent disability rating for varicose veins, left lower extremity, since July 6, 2011. Specifically, the Board ordered the RO to issue a statement of the case (SOC) on this issue in compliance with Manlincon v. West, 12 Vet. App. 238 (1999). The June 2014 Board remand further directed the RO to return the issue to the Board if the Veteran filed a timely and adequate substantive appeal following the issuance of the SOC. Following the issuance of the SOC in October 2014, the Veteran did not file a timely substantive appeal. As such, the issue of entitlement to restoration of a 20 percent disability rating for varicose veins, left lower extremity, since July 6, 2011 is not before the Board. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.302 (c) (2017) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case); Roy v. Brown, 5 Vet. App. 554, 556 (1993) (if the claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision"). The Board notes that at no time after the issuance of the SOC, in October 2014, has VA treated the issue as being on appeal. Additionally, in the October 2017 Appellant's Brief, the Veteran's representative makes no arguments relating to entitlement to restoration of a 20 percent disability rating for varicose veins, left lower extremity, since July 6, 2011. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. FINDINGS OF FACT 1. The competent evidence of record does not demonstrate a diagnosis of arthritis of the joints (hands, fingers, toes of both-feet, bilateral knees, and bilateral elbows) proximate to the claim, or during the appeal period. 2. Prior to July 6, 2011, the Veteran's varicose veins, left lower extremity were manifested by no more than persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. 3. From July 6, 2011, the Veteran's varicose veins, left lower extremity were manifested by no more than intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. 4. Throughout the entire rating period, the Veteran's varicose veins, right lower extremity were manifested by no more than intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the joints (hands, fingers, toes of both-feet, bilateral knees, and bilateral elbows), to include as secondary to service-connected seborrheic dermatitis, scalp have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for a disability rating in excess of 20 percent for varicose veins, left lower extremity prior to July 6, 2011, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.104, Diagnostic Code 7120 (2017). 3. The criteria for a disability rating in excess of 10 percent for varicose veins, left lower extremity from July 6, 2011, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.104, Diagnostic Code 7120 (2017). 4. The criteria for a disability rating in excess of 10 percent for varicose veins, right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.104, Diagnostic Code 7120 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to Service Connection for Arthritis of the Joints The Veteran contends that he has arthritis of the joints that is secondary to his service-connected seborrheic dermatitis of the scalp or secondary to his nonservice-connected psoriasis. Specifically, the Veteran contends that his psoriasis condition spread to his elbow, knee, calf and hand joints. See VA Form 21-4138, Statement in Support of Claim, received August 2009. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the evidence of record does not contain probative evidence of arthritis of the joints at any time proximate to, or during, the claim. The Veteran was provided a VA non-degenerative arthritis examination in October 2015. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated that he has pain in most joints including his ankles, shoulders and lower back. The Veteran further stated that most of the pain is in his right shoulder and that he is presently prescribed medication and cream. Upon examination the Veteran did not have any limitation of joint movement or deformities related to the claimed arthritis condition. The October 2015 VA examiner noted that there is a documented history of shoulder, ankle, and lumbar joint pain. However, there is no evidence of severe arthritic changes on examination. A review of the Veteran's VA treatment records reveal that he was diagnosed with severe degeneration of the lumbar spine. However, there is no diagnosis of arthritis of the joints to include of the hands, fingers, toes of both-feet, bilateral knees, and bilateral elbows. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran currently has arthritis of the joints that had its onset during active service, that there is current arthritis of the joints that is otherwise causally or etiologically related to his active service, or that there is current arthritis of the joints that is caused by, proximately due to, or chronically aggravated by the service-connected seborrheic dermatitis, scalp. The Board acknowledges the Veteran's assertions that he has arthritis of the joints. However, he has not been shown to have the medical training and knowledge required to diagnose such condition. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37. Therefore, his assertions are not considered competent and do not weigh against the probative value of the medical treatment records, including the October 2015 VA examination and the Veteran's VA treatment records, which do not show a diagnosis of arthritis of the joints. As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during the course of the appeal or in proximity to the claim. See Degmetich, 104 F. 3d at 1332; Brammer, 3 Vet. App. at 225; see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Although the Board recognizes the Veteran's sincere belief in his claim, the most probative evidence of record does not show that he had arthritis of the joints at any point during or in proximity to the appeal period. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In this case there is an absence of proof of arthritis of the joints (hands, fingers, toes of both-feet, bilateral knees, and bilateral elbows) during or in proximity to the appeal period. Without evidence of a current diagnosis of arthritis of the joints (hands, fingers, toes of both-feet, bilateral knees, and bilateral elbows) the Board need not address the other elements of service connection. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings for Bilateral Lower Extremity Varicose Veins The Veteran seeks higher disability ratings for his service-connected bilateral, lower extremity, varicose veins. The Veteran's claim for an increased rating was received on August 17, 2009. Therefore, the relevant rating period is from August 18, 2008, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o) (2). Throughout the rating period, the Veteran's service-connected varicose veins, right lower extremity, have been rated as 10 percent disabling under diagnostic code 7120. The Veteran's service-connected varicose veins, left lower extremity are rated as 20 percent disabling prior to July 6, 2011 and 10 percent disabling from July 6, 2011 under Diagnostic Code 7120. Under Diagnostic Code 7120 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 assigned for persistent edema, incompletely relieved by elevation of 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 assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and a maximum 100 percent rating is assigned for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120. Turning to the relevant evidence of record, the Veteran was provided a VA examination in February 2010. The VA examiner interviewed the Veteran and conducted an in-person examination. The Veteran reported that he was diagnosed with bilateral lower extremity varicose veins. The Veteran reported that he has leg pain after prolonged standing and walking. He further reported that he has intermittent leg edema which is not completely relieved by foot elevation or compression hosiery. The VA examiner stated that the Veteran did not have eczema or ulceration. Upon examination, the VA examiner noted bilateral lower extremity varicose veins. There were no ulcers, edema, elevated edema, stasis pigmentation or eczema. In the Veteran's VA Form 9, received April 2011, he stated that he is only able to walk approximately one block due to leg pain. He further stated that when he stands or walks for prolonged periods of time his legs swell and pain increases. The Veteran was provided a VA arteries and veins examination in July 2011. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted edema and skin discoloration were not present. The VA examiner further noted that the Veteran had pain that occurred during rest but was not constant. The VA examiner noted symptoms of aching, fatigue and throbbing present after prolonged standing or walking that were relieved by elevation or compression hosiery. Upon physical examination of the left leg, the VA examiner noted there was no edema, stasis pigmentation, eczema or ulceration. The Veteran did not report tenderness of the varicosities during the examination. In December 2011, VA received a correspondence from the Veteran's representative stating that the Veteran suffers from persistent edema which is incompletely relieved by elevation of the extremities or compression hosiery. The representative further stated that compression hosiery and elevation makes the Veteran's symptoms worse. A review of the Veteran's VA treatment records contain a February 2014 vascular surgery outpatient note that reflects the Veteran has no edema in the bilateral lower extremities. Additionally, the note reflects that the Veteran's lower extremity pain is not related to his venous insufficiency. The Veteran was provided a VA artery and vein examination in October 2015. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran has bilateral lower extremity varicose veins. The VA examiner further noted that the Veteran has aching in the bilateral lower extremities after prolonged standing and walking and that the symptoms are relieved by compression hosiery. The examiner noted that the Veteran has bilateral lower extremity beginning stasis pigmentation and intermittent edema of the bilateral lower extremity. The VA examiner noted that the Veteran uses compression stockings to prevent swelling, pain and circulatory problems and that the stockings relieve the Veteran's symptoms. In view of the relevant evidence of record, the Board finds that, prior to July 6, 2011, the Veteran was not entitled to a disability rating in excess of 20 percent under Diagnostic Code 7120 for his service-connected varicose veins, left lower extremity, because the disability was not manifested in persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. At the July 2011 VA examination the Veteran did not present with edema or skin discoloration. As such, prior to July 6, 2011, the Veteran is not entitled to a rating in excess of 20 percent for his service-connected varicose veins, left lower extremity. For the period from July 6, 2011, for the Veteran's varicose veins, left lower extremity and from August 18, 2008, for the Veteran's service-connected varicose veins, right lower extremity the Board finds that an increased rating is not warranted under Diagnostic Code 7120. In this regard, although there is medical evidence of stasis pigmentation and eczema, there is no competent medical evidence showing that the Veteran has persistent edema that is not relieved by elevation to warrant the next higher rating of 20 percent. Significantly, the October 2015 VA examiner noted that the Veteran's edema of the bilateral lower extremities was intermittent. In addition, the February 2010 and July 2011 VA examiners noted that edema and skin discoloration were not present. VA clinical records also do not document persistent edema. The only evidence of record noting that the Veteran has persistent edema is the December 2011 correspondence from the Veteran's representative. The Board acknowledges the Veteran's contentions that he is entitled to higher ratings for his service-connected bilateral lower extremity varicose veins. The Veteran is competent to report symptoms such as pain and discoloration. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also credible in his belief that he is entitled to higher ratings. However, the Veteran is not competent to offer a medical opinion, for example, as to the relative severity of his service-connected bilateral lower extremity varicose veins as applied to the applicable schedular rating criteria, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Therefore, in assigning a disability rating, the Board relies upon the competent, probative opinions provided by the medical professionals and on the objective medical evidence of record. The medical professionals' opinions are probative because the professionals have the knowledge and expertise necessary to rate the Veteran's disability, and because they are based on a review of the record, and on an in-person examination of the Veteran. They are thorough and provide enough detail to rate the Veteran under the relevant rating criteria. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). When considered in conjunction with the relevant rating criteria, the preponderance of the evidence is against a finding that ratings higher than those assigned herein are warranted for the service-connected bilateral lower extremity varicose veins. In summary, the record does not show that the Veteran was entitled to a rating in excess of 20 percent for his service-connected varicose veins, lower left extremity prior to July 6, 2011 and in excess of 10 percent from July 6, 2011. In addition, the record does not show that the Veteran was entitled to a rating in excess of 10 percent at any time during the appeal period for his service-connected varicose veins, right lower extremity. To the extent that the Veteran seeks ratings for his service-connected bilateral lower extremity varicose veins higher than or in addition to those provided herein, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to service connection for arthritis of the joints (hands, fingers, toes of both-feet, bilateral knees, and bilateral elbows), to include as secondary to service-connected seborrheic dermatitis, scalp is denied. Entitlement to a disability rating in excess of 20 percent for varicose veins, left lower extremity, prior to July 6, 2011 is denied. Entitlement to a disability rating in excess of 10 percent for varicose veins, left lower extremity, from July 6, 2011 is denied. Entitlement to a disability rating in excess of 10 percent for varicose veins, right lower extremity, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs