Citation Nr: 18143889 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 13-01 982 DATE: October 23, 2018 ORDER Entitlement to a 50 percent rating for varicose veins of the right lower extremity beginning September 17, 2014 is granted, on a schedular basis, subject to the regulations governing monetary awards. Entitlement to a 50 percent rating for varicose veins of the left lower extremity beginning September 17, 2014 is granted, on a schedular basis, subject to the regulations governing monetary awards. REMANDED Entitlement to an initial disability rating in excess of 30 percent for varicose veins of the right lower extremity prior to September 17, 2014, on a schedular and extraschedular basis, is remanded. Entitlement to an initial disability rating in excess of 30 percent for varicose veins of the left lower extremity prior to September 17, 2014, on a schedular and extraschedular basis, is remanded. Entitlement to a disability rating in excess of 50 percent for varicose veins of the right lower extremity for the period beginning September 17, 2014, on a schedular and extraschedular basis, is remanded. Entitlement to an initial disability rating in excess of 50 percent for varicose veins of the left lower extremity for the period beginning September 17, 2014, on a schedular and extraschedular basis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 30, 2014 is remanded. FINDINGS OF FACT 1. The Veteran’s varicose veins of the right and left lower extremities pre-existed active duty service, and manifested in aching and fatigue in the legs after prolonged standing or walking. 2. The Veteran’s varicose veins of the right and left lower extremities manifested chronic and persistent ulcer symptoms beginning September 17, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating for varicose veins of the right lower extremity beginning September 17, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.22, 4.104, Diagnostic Code 7120. 2. The criteria for entitlement to a 50 percent rating for varicose veins of the left lower extremity beginning September 17, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.22, 4.104, Diagnostic Code 7120. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to February 1970. The Veteran testified before the undersigned Veterans’ Law Judge in December 2014. During the hearing, the Veteran waived agency of original jurisdiction (AOJ) reconsideration of new evidence. In March 2015 and September 2017, the Board of Veterans’ Appeals (Board) remanded the matters for further development. The United States Court of Appeals for Veterans Claims (Court) has outlined in Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) that “when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.” The Veteran submitted a July 2011 VA Form 21-8940; hence, the Board assumes jurisdiction over the TDIU claim. The Board notes the matters were remanded in September 2017 for the AOJ to issue a supplemental statement of the case (SSOC). The AOJ issued a SSOC in August 2018; however, the AOJ failed to adjudicate the issue properly. The SSOC stated the issues, in part, as claims for initial ratings in excess of 50 percent, instead of the accurate 30 percent rating. The Board will address the inaccurate initial rating aspect of the claims in the remand section below. However, as the Board found evidence to provide a partial grant for the benefits sought, to that extent only, the Board will issue a decision herein as there will be no prejudice to the Veteran. Increased Rating The Veteran’s varicose veins are currently rated under Diagnostic Code 7120 for varicose veins, which provides a 10 percent rating for varicose veins with 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 for persistent edema which is not completely relieved by elevation of the extremity, whether or not there is beginning stasis pigmentation or eczema. A 40 percent rating is assigned when varicose veins cause persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is assigned when there is evidence of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent evaluation is assigned for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. The Veteran was inducted into active duty on January 31, 1968. See VA Form DD-214. Prior to induction into active duty, in December 1967, Dr. J.C.S. advised against prolonged standing due to the Veteran’s bilateral lower extremity varicose vein symptoms. Although no varicose vein symptoms were noted in the pre-induction examination, the STRs contain evidence of the Veteran’s left and right varicose vein symptoms warranting a 10 percent disability rating prior to induction into active duty, under Diagnostic Code 7120. Due to the Veteran’s pre-existing disabilities which were noted in the pre-induction examination, the presumption of soundness does not apply as argued by the Veteran’s representative. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Accordingly, as the disability pre-existed service with a disability rating of 10 percent, VA must subtract the level of disability upon induction from the Veteran’s current level of disability. 38 C.F.R. § 4.22. A VA treatment note from September 17, 2014 described the Veteran ulcer symptoms as “chronic” and “persistent.” Because of this, the Veteran’s left and right varicose veins of the lower extremities warrant a 50 percent evaluation due to the Veteran’s disability picture most approximating a 60 percent rating, minus 10 percent for the pre-existing condition, as of September 17, 2014. This represents a partial grant of the claims on appeal, for the period from September 17, 2014 until July 10, 2015 (when the current 50 percent evaluations previously went into effect). The question of whether even higher ratings, schedular or extraschedular, are warranted for the staged ratings on appeal will be addressed on remand. REASONS FOR REMAND In September 2017, the Board directed the AOJ to issue an SSOC as to the issues on appeal. The AOJ issued a SSOC in August 2018 in which it improperly listed the initial ratings as 50 percent, and provided reasons and basis denying ratings in excess of 50 percent. The Veteran’s right and left lower extremity disabilities have initial ratings of 30 percent. Therefore, another remand is necessary to issue a SSOC to properly address the initial ratings of the Veteran’s right and left varicose veins of the lower extremities. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the December 2014 Board hearing, the Veteran asserted that the Veteran’s symptoms present an unusual disability picture and warrant extraschedular considerations. In the March 2015 remand, the Board instructed the readjudication of the Veteran’s claim, to include a determination on whether an extraschedular evaluation was warranted under 38 C.F.R. § 3.321(b)(1). However, a review of the Veteran’s file shows such a determination has not been completed, and therefore another remand is required. Stegall, supra. The Veteran contends his service-connected varicose veins render him unable to secure gainful employment. The Board notes that during the period on appeal, the Veteran has had a total combined disability rating of 100 percent based upon multiple disabilities beginning on September 30, 2014; he had a 100 percent disability rating for prostate cancer between September 30, 2014 and December 1, 2016; and he was entitled to special monthly compensation under 38 U.S.C. § 1114 between from September 30, 2014 to December 1, 2016. Therefore, the issue of TDIU is moot beginning September 30, 2014. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Yet, for the period on appeal prior to September 30, 2014, TDIU is still available to the Veteran. As a decision on the remanded issues of increased ratings on an extraschedular basis could significantly impact a decision on the issue of aTDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Furnish the Veteran a 38 C.F.R. § 3.159(b) notice letter addressing his TDIU claim. 2. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 3. After completion of any action deemed appropriate in addition to the requested above, adjudicate 1.) entitlement to an initial rating in excess of 30 percent for varicose veins of the right lower extremity, on a schedular and extraschedular basis; 2.) entitlement to an initial rating in excess of 30 percent for varicose veins of the left lower extremity, on a schedular and extraschedular basis; 3.) entitlement to a disability rating in excess of 50 percent for varicose veins of the right lower extremity for the period beginning September 17, 2014, on a schedular and extraschedular basis; 4.) entitlement to a disability rating in excess of 50 percent for varicose veins of the left lower extremity for the period beginning September 17, 2014, on a schedular and extraschedular basis; and 5.) entitlement to TDIU prior to September 30, 2014. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel