Citation Nr: 1759941 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-06 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for right leg varicose veins, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to February 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this matter in January 2014 and March 2016 for further development. The Veteran presented testimony at a Board hearing in May 2013. A transcript of the hearing is associated with the Veteran's claims folder. In October 2017, the Veteran was informed that the Veterans Law Judge that conducted the hearing is no longer employed by the Board. The Veteran was given the opportunity to testify before a different Veterans Law Judge. In November 2017, the Veteran responded that he did not want an additional Board hearing. FINDING OF FACT The Veteran's right leg varicose veins are not manifested by persistent edema or subcutaneous induration; stasis pigmentation or eczema; and persistent ulceration CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 40 percent for the Veteran's service-connected right leg varicose veins have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including § 4.7, and 4.104, Diagnostic Code 7120 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his appeal. See Doucette v. Shulkin, 28 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). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected varicose veins have been rated by the RO under the provisions of Diagnostic Code 7120. Under this code, in pertinent part, varicose veins productive of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration, are rated as 40 percent disabling. For a higher, 60 percent rating, the evidence must demonstrate (1) persistent edema or subcutaneous induration, (2) stasis pigmentation or eczema, and (3) persistent ulceration. Finally, for a 100 percent rating, Diagnostic Code 7120 requires massive board-like edema with constant pain at rest. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); but see Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). This service-connected disability is directly contemplated by the Schedule, thus the Board will not analysis under analogous diagnostic codes. Copeland, 27 Vet. App. at 337. At the Veteran's May 2013 Board hearing, he testified that following surgery in 2006, his right leg swelled up. He also described pulling pain and a tightening up of his leg. He stated that following the surgery, he had more pain. He testified that swelling is constant (and that he can feel the difference between his right and left legs). He testified that the last time he was examined, his right leg (measured right below the kneecap) was approximately and inch larger than his left leg. He also testified as to two or three black spots (ultra pigmentation) on his right leg. The Veteran underwent a VA examination in March 2007. The examiner noted that due to a bones condition, the Veteran suffers from pain located at the right foot. The pain occurred three times per week and each time lasted for 3 days. He stated that the pain travelled to upper leg. The characteristics of the pain were that it was sharp in nature and level 9/10. He stated that the pain could be elicited by physical activity and was relieved by rest. He stated that when he experienced pain, he required bed rest. Upon examination, there was no indication that the disability was manifested by; stasis pigmentation or eczema; persistent ulceration; persistent edema; or subcutaneous induration The Veteran underwent a VA examination in August 2011. He reported that he had varicose vein stripping in February 2006. The Board notes that the RO granted a 100 percent rating due to surgery from February 16, 2006 to April 1, 2006. The Veteran reported pain in the right lower leg below the knee several times per week. He reported pain at rest with walking or standing. He rated the pain at 8 out of 10. He reported throbbing, cramping, tingling, and burning sensation in the right lower leg. He has not been using the compression stockings due to discomfort. He stated that the stockings did not help the symptoms. He reported that he elevates his legs periodically, which helps somewhat. He reported taking ibuprofen (800 mg.) twice a week for the pain with partial relief of symptoms without side effects. The Veteran's symptoms included aching and fatigue after prolonged standing or walking. Symptoms were relieved by elevation of the extremity. There was intermittent edema. The report reflects that there was no persistent edema or subcutaneous induration; no intermittent ulceration; no persistent stasis pigmentation or eczema; no massive board-like edema; and no constant pain at rest. There was no Raynaud's syndrome. The Veteran did not use any assistive devices as a normal mode of locomotion. The scar was not painful and/or unstable. It did not have a total area of 39 square cm (6 square inches) or greater. The examiner found the right lower extremity to have minimal edema. There were no cords and no tenderness. There were a few mildly prominent superficial nontender veins. There were several superficial nontender surgical scars noted on the right lower extremity measuring between 1/2 cm. to 1 cm. There was no evidence of ulceration or chronic venous stasis changes. Dorsalis pedis and posterior tibial pulses were intact. The examiner remarked that the Veteran was able to walk approximately 1 mile before having to rest due to the pain in his right leg. He was able to stand for approximately 15 minutes before noting worsening pain. He had superficial surgical scars which do not cause any functional impairment. The Veteran underwent a third VA examination in June 2014. The diagnosis was recurrent varicose veins status post vein stripping, right lower extremity. The Veteran reported persistent pain in his right leg due to varicose veins. The examiner found asymptomatic palpable varicose veins and asymptomatic visible varicose veins. There was no persistent edema or subcutaneous induration. There was no intermittent ulceration. There was no persistent stasis pigmentation or eczema. There was no Raynaud's syndrome. The Veteran did not use any assistive devices as a normal mode of locomotion. The scar was not painful and/or unstable. It did not have a total area of 39 square cm (6 square inches) or greater. The examiner stated that the diagnosis had changed as it was a progression of the previous diagnosis and the varicose veins were recurrent status post surgery. The Board notes that the post-service treatment records since the June 2014 VA examination have not shown any of the symptomatology required for an increased rating. To the contrary, treatment reports dated October 2016 and November 2016 reflect no lower extremity edema (Caseflow, 2/7/17, pgs. 14, 20). Treatment records dated July 2016 reflect that the Veteran experiences tingling in both legs a couple times per week, at an 8/10. Treatment records dated February 2017 reflect that the Veteran's symptoms (of painful, aching, cramping with an uncomfortable feeling) are relieved by rest. Analysis As noted above, in order to warrant a rating in excess of 40 percent, the Veteran's disability would have to be manifested by (1) persistent edema or subcutaneous induration, (2) stasis pigmentation or eczema, and (3) persistent ulceration. The Board notes that none of these symptoms have been present at any of the three VA examinations. Moreover, none have been noted in the outpatient treatment records. The Board notes that there was minimal edema noted at the Veteran's August 2011 VA examination. It was described as intermittent. There have been no findings of edema since then. Moreover, the Board notes that for an increased rating, all of the symptoms must be present. Persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration is the criteria for a 40 percent rating. In order to warrant a higher rating the Veteran must also show persistent ulceration. There have been no such findings. Additionally, in reviewing the Veteran's recount of his symptoms he has not described or contended that he has or has had persistent ulceration. As such, the Board finds that the Veteran's disability picture regarding his right leg varicose veins is more nearly approximated by the criteria for the current 40 percent rating. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 40 percent for right leg varicose veins must be denied. See Gilbert v. Derwinski, 1 Vet. App 49, 53-54 (1990). ORDER An increased rating for right leg varicose veins is denied. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs