Citation Nr: A19002083 Decision Date: 10/18/19 Archive Date: 10/18/19 DOCKET NO. 190423-8187 DATE: October 18, 2019 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected varicose veins, status post-surgery, left leg (claimed as left leg surgery), is denied. REMANDED Entitlement to an increased disability rating in excess of 10 percent for service-connected bilateral hearing loss is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s service-connected varicose veins, status post-surgery, left leg, did not manifest in persistent edema, stasis pigmentation, or eczema. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for service-connected varicose veins of the left leg have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1974 to February 1980. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a February 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. The rating decision continued disability evaluation for varicose veins, left leg and for bilateral hearing loss. In April 2019, the Veteran timely appealed the rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). 1. Entitlement to a disability rating in excess of 10 percent for service-connected varicose veins, status post-surgery, left leg. The Veteran alleges that his varicose veins disability is worse than currently rated. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Varicose veins are rated under Diagnostic Code 7120. Under Diagnostic Code 7120 for varicose veins, 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 warranted for varicose veins manifested by persistent edema, incompletely-relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating requires persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating warrants persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating requires massive board-like edema with constant pain at rest. The Veteran’s VA treatment records do not indicate that the Veteran received VA treatment for his disability during the period on appeal. In February 2019, the Veteran underwent a VA examination for his claim. The VA examiner noted that the Veteran’s left leg has asymptomatic palpable varicose veins, asymptomatic visible varicose veins, aching in leg after prolonged standing and walking, fatigue in leg after prolonged standing and walking, and that the Veteran’s symptoms are relieved by elevation of extremity and symptoms relieved by compression hosiery. The VA examiner found that the Veteran has intermittent edema of the left extremity. The Veteran did not have to have an amputation of an extremity due to his varicose veins and did not use any assistive devices. The Veteran was noted to have a scar on his left leg which was not found to be painful or unstable. The Veteran’s ability to work was found to be impacted by left leg pain with prolonged standing or walking. The VA examiner noted that the Veteran’s diagnosis has not changed. Based on the evidence of record, the Board finds that the criteria for higher disability rating for the service-connected varicose veins of the left leg is not warranted. In this regard, the February 2019 VA examination revealed that the Veteran experiences intermittent edema of the left leg, and fatigue and aching of the left leg. The Veteran’s fatigue and aching are relieved by elevation of the left leg and by use of compression hosiery. As such, the Veteran’s overall disability picture most closely approximates a 10 percent rating. In order to warrant an assignment of the next higher 20 percent disability rating, the evidence must show that the Veteran’s varicose veins had persistent edema, incompletely relived by elevation of extremity, with or without beginning stasis pigmentation or eczema. There is no indication that the Veteran had persistent edema at any point during the period on appeal. After reviewing the Veteran’s medical records and reported symptoms, the February 2019 VA examiner concluded that the Veteran’s edema is intermittent and not persistent. In addition, the VA examiner noted that the Veteran’s varicose veins were asymptomatic palpable and visible. The examiner did not find that the Veteran had stasis pigmentation, or eczema in the left leg. Therefore, the criteria for the next higher rating of 20 percent have not been met or approximated. 38 C.F.R. § 4.104, DC 7120. In addition, the Veteran’s scar is not painful or unstable, and does not warrant a separate rating. The Board finds that the preponderance of the evidence is against an increased rating for service-connected varicose veins of the left leg. The benefit of the doubt doctrine does not apply, and the claims must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased disability rating in excess of 10 percent for service-connected bilateral hearing loss. The Veteran contends that his service-connected bilateral hearing loss is worse than currently rated. In January 2019, the Veteran underwent an audiometric VA examination. The January 2019 VA examination report indicates that the results of the exam were incomplete. The VA examiner was not able to measure the Veteran’s left ear speech discrimination. The VA examiner noted that they were unable to perform CNC testing for the left ear because the rate of volume was beyond the limits of the testing equipment and the Veteran’s tolerance. Speech discrimination scores are used to rate the Veteran’s bilateral hearing loss pursuant to 38 C.F.R. § 4.85 Table IV. Following the incomplete VA examination results, the AOJ rated the Veteran based on previous audiometric examinations. However, given that the Veteran alleged that his hearing is worse, the AOJ had a duty to provide another examination, at the very least to determine whether it was possible to obtain accurate results. VA’s duty to assist a Veteran includes providing an adequate examination when such is necessary to decide the claim. Not providing a complete and comprehensive VA examination in this matter when it was determined that one was necessary to decide the claim is considered a pre-decisional duty-to-assist error and therefore, a remand is necessary for a new VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his bilateral hearing loss disability. The claims file and a copy of this remand should be made available to the examiner. Any studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner should report the extent of the Veteran’s disability in accordance with VA rating criteria and include an opinion regarding the functional effects caused by the Veteran’s bilateral hearing loss disability. If the audiologist is unable to obtain accurate test results, he or she should explain why, if possible. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kuksova, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.