Citation Nr: 18160073 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-02 500 DATE: December 21, 2018 ORDER Entitlement to an increased rating for varicose veins of the lower left extremity, to include restoration of a 40 percent rating, is granted. Entitlement to an increased rating for varicose veins of the lower right extremity, to include restoration of a 40 percent rating, is granted. FINDINGS OF FACT 1. The evidence of record is insufficient to establish improvement of varicose veins of the lower left extremity at the time of reduction. 2. The evidence of record is insufficient to establish improvement of varicose veins of the lower right extremity at the time of reduction. CONCLUSIONS OF LAW 1. The decision to reduce the evaluation for service-connected varicose veins of the left lower extremity from 40 percent to 10 percent was not proper; restoration of the 40 percent evaluation is therefore warranted. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 7120. 2. The decision to reduce the evaluation for service-connected varicose veins of the right lower extremity from 40 percent to 10 percent was not proper; restoration of the 40 percent evaluation is therefore warranted. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 7120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from February 1967 to October 1969. Increased ratings for varicose veins of the lower left and lower right extremities, to include restoration of 40 percent ratings Certain notice considerations apply when reduction in the evaluation of a service-connected disability is contemplated. If the contemplated lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons and must be given 60 days to present additional evidence to show that compensation payments should be continued at the present level. See 38 C.F.R. § 3.105(e). The criteria governing rating reductions for service-connected disabilities is found in 38 C.F.R. § 3.344. The requirements for reductions of ratings differ depending on how long the previous rating has been in place. The provisions of 38 C.F.R. §§ 3.344(a) and (b) apply to ratings that have continued for five years or more. When a disability has not become stable and is likely to improve, and the disability rating has not continued at the same level for at least five years, a reexamination disclosing improvement in that disability will warrant a reduction in its rating. 38 C.F.R. § 3.344(c). In the present case, a 40 percent rating was awarded in a February 2011 rating decision, effective from July 18, 2005. The rating reduction to 10 percent became effective December 1, 2014. The February 2011 decision noted that because the Veteran had surgical procedures to ameliorate the varicosities, and because a subsequent examination report implied improvement, a future examination was being requested. Moreover, while an April 2013 rating decision continued the previously assigned 40 percent rating, the RO noted that since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination. In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) stated, however, that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21. Furthermore, in considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Veteran currently has a 10 percent rating under 38 C.F.R. § 4.104, Diagnostic Code 7120. Under Diagnostic Code 7120, a 10 percent evaluation is warranted for varicose veins that are manifested by intermittent edema of an extremity or aching and fatigue in a leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. 38 C.F.R. § 4.104 Diagnostic Code 7120. A 20 percent evaluation requires persistent edema which is not completely relieved by elevation of the extremity, whether or not there is beginning stasis pigmentation or eczema. Id. A 40 percent rating is assigned when varicose veins cause persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. Id. A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Id. A 100 percent rating is assigned for massive board-like edema with constant pain at rest. Id. Turning to the evidence of record, in a January 2013 VA examination, the examiner reported that the Veteran stated that the swelling had improved after vein ablation, but the varicose vein pain persisted and has gotten progressively worse. She reported increased varicose vein pain, stating that “veins plump more” when she walks 50-100 yards. The Veteran reported that she rests and stretches her feet and legs when she has variceal vein pain intermittently while walking her dog. She reported taking medication if the pain was worse than usual. The examiner also reported that the Veteran stated that she elevates both legs when she has more pain. The Veteran noted that she did not put compression stockings because it is painful to put them on. The Veteran also stated that she had been doing zumba for many years, but because of increased pain in varicose veins, she stopped attending zumba classes a year ago. The examiner noted symptoms of aching and fatigue in both legs after prolonged standing of walking, symptoms relieved by elevation of extremity, and incipient stasis pigmentation or eczema of both legs. The examiner also noted intermittent edema of extremity of both legs. The examiner stated that the pain in the Veteran’s feet and leg varicosities could limit her ability to obtain and secure a physical type of employment, where considerable standing more than thirty minutes and walking can produce pain in her varicosities. The examiner went on to state that frequent elevation of legs and frequent breaks so that she can walk around to decrease edema would be needed to help the Veteran secure and maintain a sedentary type of employment. In a May 2014 VA examination, the Veteran reported no significant changes from the previous examination performed in 2013. The Veteran noted that she now used Biofreeze topical spray in addition to medication as needed pain approximately three times a week. The Veteran noted that elevating her legs no longer seemed to alleviate the pain. The examiner noted symptoms of incipient stasis pigmentation or eczema of both legs and intermittent edema of both extremities. The examiner stated that the Veteran’s disabilities had functional impact in that the Veteran should avoid prolonged standing and walking, and needed to elevate feet periodically. In a June 2014 Notice of Disagreement, the Veteran stated that she was not physically examined in the May 2014 VA examination. The Veteran further challenged the examiner as a medical professional. In an August 2016 VA examination, the Veteran reported that, since her last rating examination in May 2014, she has had worsening symptoms of pain and swelling. She also reported that in the last few months, she had gotten a few small stasis ulcers on her left leg. She stated that she could only be on her feet for about twenty minutes before she had to elevate her legs due to pain. She reported that she treats with elevation, rest, anti-inflammatory medications, topical analgesics such as biofreeze, and ice. She further reported that she did not wear compression hose as they do not seem to help and cause more pain. She went on to state that she did not have much improvement following her 2007 surgery. The examiner reported symptoms of aching in both legs after prolonged standing, aching in both legs after prolonged walking, fatigue in both legs after prolonged standing, and fatigue in both legs after prolonged walking. The examiner reported symptoms relieved by elevation of extremity. The examiner went on to report findings of persistent stasis pigmentation, persistent eczema, and intermittent edema of the bilateral lower extremities. The examiner also noted intermittent ulceration of the left leg. The examiner described functional impact, stating that the Veteran would not be able to do a job that required prolonged standing or walking, and would need to be able to elevate feet periodically as needed. After review of the record, the Board finds that reduction of the ratings was improper. The medical record shows that, at the time of the reduction, the Veteran had incipient stasis pigmentation or eczema. Moreover, later examinations found symptoms such as persistent stasis pigmentation or persistent eczema consistent with the Veteran’s assertion that there had been no improvement. While the examinations report intermittent edema, the Veteran, who has demonstrated some medical expertise as an operating room nurse, reported constant swelling. Giving that Veteran the benefit of the doubt, the Board finds that the evidence is insufficient to establish improvement. Therefore, restoration of a 40 percent rating is appropriate. To the extent that the Veteran asserts that a higher rating is warranted, the evidence of record does not show that a 60 percent rating is appropriate. While the August 2016 VA examination showed evidence of ulceration of the left leg, the examiner found it to be intermittent, and the Veteran has not indicated persistent ulceration. Therefore, a higher rating is not warranted. For these reasons, the Board finds the reduction of rating for varicose veins of the left and right lower extremities was improper and a rating of 40 percent is restored. However, a rating higher than 40 percent is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ford, Associate Counsel