Citation Nr: 18144214 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-35 860 DATE: October 24, 2018 ORDER Entitlement to a disability rating in excess of 40 percent for right leg varicose veins is denied. Entitlement to a disability rating in excess of 40 percent for left leg varicose veins is denied. FINDINGS OF FACT 1. The Veteran’s right leg varicose veins disability has not been productive of persistent ulceration. 2. The Veteran’s left leg varicose veins disability has not been productive of persistent ulceration. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for right leg varicose veins thereafter have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.104, Diagnostic Codes 7120. 2. The criteria for a rating in excess of 40 percent for left leg varicose veins thereafter have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.104, Diagnostic Codes 7120. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to January 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2012 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2017. In April 2018, the Board remanded the case for further development. The Veteran was previously represented by a private attorney. A September 2018 VA correspondence notes the withdrawal of the private attorney. Both the Veteran and the private attorney were notified. The record does not indicate that the Veteran has selected new representation. Therefore, the Board concludes that Veteran is unrepresented in the instant appeal. The Board notes that subsequent to the Board’s remand in April 2018, in a rating decision dated in September 2018, the RO increased the Veteran’s disability ratings for her right and left leg varicose vein disabilities and assigned a 40 percent rating, for each leg, effective the date of the claim for the increased evaluation. Entitlement to a disability rating in excess of 40 percent for right leg varicose veins and entitlement to a disability rating in excess of 40 percent for left leg varicose veins are denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. The Board has reviewed the lay statements by the Veteran and her spouse, and all relevant medical evidence, with particular attention to the private examinations from Carolina Vein and Laser Specialists and VA examinations dated in August 2012 and August 2018. The Veteran has noted wearing compressions socks, experiencing pain with sitting and standing for long periods of time, trouble sleeping. At her March 2017 Travel Board hearing, the Veteran reported experiencing discomfort and pain in her legs. She noted that she could not sleep for more than three hours without pain. She also described swelling in, and dry skin around, her ankles. After a review of the evidence of record, the Board finds that ratings in excess of 40 percent for both the Veteran’s right leg varicose veins and left leg varicose veins disabilities are not warranted. Under Diagnostic Code 7120 for varicose veins, a 40 percent rating is warranted when varicose veins cause persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is warranted when there is evidence of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A private medical note dated in September 2011 from Dr. F. shows that the Veteran had been evaluated and treated for chronic superficial venous insufficiency and varicose vein disease. She reported chronic symptoms of aching, pain, swelling, itching, and fatigue. Skin changes of hemosiderin deposition and venous stasis dermatitis, and edema of the bilateral ankles was found. The Veteran was afforded a VA examination in August 2012. She reported discoloration and superficial varicosities in both legs, as well as pain after prolonged walking, sitting and, at times, rest. Upon examination, edema, stasis pigmentation or eczema and ulcerations were not found for either leg. For the Veteran’s right leg, visible, palpable, soft, tender tortuous veins along the posterior thigh, popliteal aspect and distal calf were found. Clusters of tender spider veins were noted on an area of ecchymosis on the lateral distal right lower extremity. Nontender spider veins were found along the right lateral ankle. For the Veteran’s left leg, tender, palpable, soft varicose veins were found along the anterior and posterior left thigh and distal left lower extremity. Small spider veins which were not palpable were found along the left lateral proximal calf and distal left lower extremity. The Veteran was afforded a VA examination in August 2018. Found in both legs were symptoms of aching and fatigue after prolonged standing and walking. Persistent stasis pigmentation, persistent edema that was incompletely relieved by elevation of extremity, persistent edema, and constant pain at rest were noted for both legs. The VA examiner indicated that the Veteran’s condition was considered severe. Given the evidence for the period on appeal, ratings in excess of 40 percent for the Veteran’s right leg varicose veins and left leg varicose veins disabilities are not warranted. For a higher rating to be assigned, there must be evidence of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. The Veteran has never reported any ulceration, and no ulceration was found on the private or VA examination reports. As such, ratings in excess of 40 percent are not warranted. In addition, separate ratings are already assigned for scars of the right leg associated with the Veteran’s varicose veins. The Veteran has not appealed the assigned ratings. As a final matter, while the August 2012 VA examination report reflects that the Veteran had to take frequent stretch breaks from her desk, and the August 2018 VA examination report shows that the Veteran’s vascular condition impacted her ability to stand, sit, walk for more than 15 minutes at a time without changing positions, there is no evidence of record showing that that her varicose vein disabilities render her unemployable. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is necessary. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A-L Evans, Counsel