Citation Nr: 20005236 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 19-11 429 DATE: January 22, 2020 ORDER Entitlement to a disability rating in excess of 40 percent for residuals of varicose veins of the right leg (vascular condition) is denied. FINDING OF FACT It is more likely than not that the Veteran’s vascular condition does not manifest as the combination of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 40 percent for the Veteran’s vascular condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to January 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of March 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Following the rating decision on appeal, the Veteran timely submitted his notice of disagreement (NOD) in March 2017. The RO subsequently issued a statement of the case (SOC) in January 2019 and the Veteran’s timely appeal to the Board followed in March 2019. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned VLJ was scheduled. Before addressing the merits of the Veteran’s claim, the Board briefly addresses its procedural history to note additional claims no longer on appeal. The Veteran filed his claim for an increased disability rating for his vascular condition, as well as claims for service connection for a psychiatric disorder as secondary to his vascular condition and for a total disability rating based on individual unemployability (TDIU), in November 2015. The January 2019 SOC addressed each of these claims. In his March 2019 appeal to the Board, the Veteran indicated that he was only appealing the issue of an increased disability rating for his vascular condition. Accordingly, the Board finds that the issues of service connection for a psychiatric disorder as secondary to the Veteran’s vascular condition and of entitlement to a TDIU are no longer on appeal. The Board notes that subsequent appellate argument of October 2019, filed on the Veteran’s behalf by his representative veterans service organization (VSO), continues to address each of these three issues. The Court of Appeals for Veterans Claims (CAVC) has previously held that “withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). As an initial matter, the submission of subsequent appellate argument on withdrawn claims would suggest the inference that their withdrawal is not “unambiguous” as contemplated by DeLisio. However, the Board notes that DeLisio specifically addressed the context of claims withdrawn during oral argument at a hearing, rather than in writing. DeLisio, 25 Vet. App. at 57-58; see also Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (providing that “DeLisio sets out the proper standard for determining whether a veteran has effectively withdrawn a claim at a [Board] hearing”) (emphasis added). The applicable regulations provide that when withdrawing a claim in writing, the statement must identify the name of the veteran in question, the name of the claimant if one has been substituted on the veteran’s behalf, the applicable VA file number, and the claims to be withdrawn. 38 C.F.R. § 20.205(b)(1). The Veteran’s March 2019 appeal to the Board, in addition to identifying his name and VA file number, plainly states that he has read the SOC and is only appealing the issue of an increased disability rating for his vascular condition. See March 2019 VA-9 at 2. The logical inference is that his remaining claims are not being appealed. The Board therefore considers it more likely than not that the inclusion of withdrawn claims in subsequent appellate argument reflects miscommunication between the Veteran and his representative VSO. The Board will therefore proceed to address the Veteran’s remaining appellate claim on the merits. 1. Entitlement to a disability rating in excess of 40 percent for the Veteran’s vascular condition. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, 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 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s vascular condition is rated as 40 percent disabling from February 2004. The applicable rating criteria provide that a disability rating of 60 percent is not assigned unless there is a combination of a) persistent edema or subcutaneous induration, b) stasis pigmentation or eczema, and c) persistent ulceration. 38 C.F.R. § 4.104, Diagnostic Code 7120; see also Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (providing that use of the conjunctive “and” in a regulation indicates that all enumerated criteria are required, while “or” allows alternate factors). The Veteran underwent a VA examination on this issue in January 2016. The VA examiner found persistent stasis pigmentation and persistent eczema, but did not find persistent edema, subcutaneous induration, or persistent ulceration. See January 2016 VA Examination Report at 2. The VA examiner additionally noted, per statements from the Veteran during the examination, that “[the Veteran] has edema in the evenings[.]” Id. at 4. In other words, the VA examiner found the second, but not the first or the third, of the three required criteria for a 60 percent disability rating for the Veteran’s vascular condition. After reviewing the evidence of record, the Board has found no other competent evidence to support the inference that the Veteran’s vascular condition manifests all three of the required criteria for a 60 percent rating. The Board is sympathetic to the Veteran’s assertions that “[taking] mass transit is painful, standing room only on some of the trains and buses, walking is only good for about one city block, before I start limping.” See January 2016 Correspondence at 1; see also March 2019 VA-9 at 2 (asserting that “I can’t go more than a city block without limping while using my cane”); see also January 2019 VA Medical Records at 107 (noting Veteran “reports pain and [swelling] of [the] [right] leg, usually after 1 block”). However, the applicable rating criteria plainly contemplate the Veteran’s symptoms. See 38 C.F.R. § 4.104, Diagnostic Code 7120 (providing that the 10 percent rating criteria include “aching and fatigue in leg after prolonged standing or walking”); see also 38 U.S.C. § 7104(c) (providing that the Board is bound in its adjudications by VA regulations). The assignment of an increased disability rating in excess of 40 percent for the Veteran’s vascular condition is therefore not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7120. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107(b). The Board has considered whether referral of the Veteran’s claim for extraschedular consideration is warranted. Generally, referral for extraschedular consideration is warranted where 1) the established schedular criteria are inadequate to describe the severity and symptoms of the Veteran’s disability, 2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization, and 3) the award of an extraschedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). The Board notes that a letter from the Veteran’s physician states that the Veteran “has developed a pain in his right groin along with an enlarged lymph node in the region of the surgical incision site of his prior venous stripping surgery.” See August 2017 Medical Treatment Record at 2. The Board further notes that enlarged lymph nodes are not among the symptoms contemplated for the Veteran’s vascular condition. 38 C.F.R. § 4.104, Diagnostic Code 7120. As an initial matter, this would seem to support the inference that the first Thun factor has been met. However, the context of the physician’s letter makes clear that the functional impairment arising out of the Veteran’s symptoms is due to pain, which “has made it difficult to walk without a cane as well as distances beyond 3 blocks. [The Veteran] also has difficulty lifting his leg to put on his socks. He also experiences pain in the region when coughing and sneezing.” See August 2017 Medical Treatment Record at 2; see also March 2017 Medical Treatment Records at 2 (finding “pain in right groin[,] severe on coughing or sneezing” but “no rest pain” and “no edema”). The basis of disability evaluations is functional impairment. 38 C.F.R. § 4.10. As previously noted, pain and associated fatigue after prolonged standing or walking is expressly contemplated by the applicable rating criteria. 38 C.F.R. § 4.104, Diagnostic Code 7120. The Board therefore concludes that the first Thun factor has not been met and that further extraschedular analysis is moot. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008). Because the established schedular criteria are adequate to describe the Veteran’s disability picture, referral for an extraschedular rating is not warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.