Citation Nr: 20008352 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-29 263 DATE: January 31, 2020 ORDER A rating higher than 20 percent for left lower leg extremity (LLE) varicose veins is denied. The petition to reopen the claim for service connection for an upper respiratory infection (URI) is granted. Service connection for right lower leg extremity (RLE) varicose veins is granted. REMANDED Service connection for an URI is remanded. FINDINGS OF FACT 1. The Veteran’s LLE varicose veins are manifested by persistent edema incompletely relieved by elevation of extremity, aching fatigue after prolonged standing and walking and constant pain at rest; the evidence does not show persistent edema and stasis pigmentation or eczema. 2. Service connection for an URI was denied in an unappealed and final April 2011 rating decision, and evidence received since that raises a reasonable possibility of substantiating the claim. 3. The evidence is at least in relative equipoise as to whether the Veteran’s RLE varicose veins are related to service. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for LLE varicose veins are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7120. 2. The criteria for reopening the claim for service connection for URI are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for RLE varicose veins are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007). LLE varicose veins The Veteran is currently assigned a 20 percent rating for LLE varicose veins pursuant to DC 7120 which provides a 20 percent rating for varicose veins with findings of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is assigned for varicose veins with findings of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A Note to DC 7120 provides that these ratings are for involvement of a single extremity. If more than one extremity is involved, each extremity is to be rated separately and combined (under 38 C.F.R. § 4.25), using the bilateral factor (38 C.F.R. § 4.26), if applicable. 38 C.F.R. § 4.104. In July 2017, the Veteran underwent a VA examination to evaluate his LLE varicose veins. The examiner provided a diagnosis of bilateral lower extremity venous varicosities. Symptoms included bilateral leg visible varicose veins and aching in legs after prolonged standing and walking. The examiner noted that the varicose veins persistent edema and constant pain at rest. The examiner also noted a .1 square inch scar on the left lower extremity related to service-connected LLE varicose veins. The scar was not painful or unstable. VA treatment records note a diagnosis of varicose veins and mild edema is noted throughout the record. May 2019 VA treatment note indicates let pain, left greater than right. However, it is not clear if the leg pain is attributed to the Veteran’s back pain or varicose veins. The medical record specifically notes that no ulceration is noted. Additionally, stasis pigmentation is not noted. Based on the foregoing evidence, the Board finds that increased ratings are not warranted. There is no evidence the Veteran’s LLE varicose veins met the criteria for a higher 40 percent rating, i.e., persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. Instead, the record reflects at most symptoms of persistent edema, incompletely relieved by elevation, and aching and fatigue after prolonged walking and standing. The Board notes that a separate noncompensable rating was granted for a residual scar associated with the LLE varicose vein disability. The Veteran has not contended, and the evidence does not show, that a higher rating is warranted for this separately rated disability. New and Material Evidence Generally, a claim that has been denied by an unappealed rating decision may not thereafter be reopened. 38 U.S.C. § 7105 (c). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). To warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). URI The Veteran was denied service connection for an URI in an April 2011 rating decision based on a finding that elements (1) and (3) were missing as no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service subject to service connection. The Veteran did not appeal; therefore, the decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104 , 20.302, 20.1103. Evidence added to the record since that decision reflects that the Veteran was treated for an upper respiratory infection in October 2016. This evidence satisfies the first element, current disability, that was missing before and raises a reasonable possibility of substantiating the claim. Therefore, the Board finds that new and material evidence has been received that relates to an unestablished fact that is necessary to substantiate the claim and the claim is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). RLE varicose veins The Veteran contends that there is a causal relationship between his RLE varicose veins and his period of active duty service. Upon review of the evidence, the Board finds that service connection is warranted. Notably, the Veteran is service connected for LLE varicose veins. The Veteran’s service treatment records show treatment for LLE varicose veins in March and October 1967. RLE varicose veins is not noted. However, throughout the post-service record, RLE varicose veins is noted. The June 1992 VA examination report, upon which service connection for LLE varicose veins is granted, shows that varicose veins were first noted in 1967 with aching in the Veteran’s lower extremities, left greater than right. A February 1997 VA examiner diagnosed bilateral varicose veins which were worse on the left. The most recent VA examination conducted in July 2017 continues to show that the Veteran has RLE varicose veins with aching in the leg after prolonged standing and walking, persistent edema and constant pain at rest. In statements, the Veteran consistently reported that he had varicose veins in both legs in service, worse in the left leg. A lay person is competent to identify varicose veins. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Therefore, the Veteran’s lay statements are competent evidence of the Veteran’s symptoms of varicose veins during service. The statements also are credible as they are uncontroverted by the other evidence of record and are consistent with the circumstances of the Veteran’s service as his DD 214 Form shows that his military occupational specialty was cook and he would endure prolonged standing. Thus, the Board finds that the totality of the evidence in the instant case is at least in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for RLE varicose veins is granted. REASONS FOR REMAND Service connection for an URI As the Board has reopened this claim, remand is required to obtain a VA opinion regarding the relationship, if any, between the Veteran’s in-service respiratory treatment and his currently diagnosed URI. (Continued on the next page)   The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Then, schedule the Veteran for a VA examination to determine the etiology of his upper respiratory infection. Upon evaluation of the Veteran and review of the file, the physician is asked to opine: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s upper respiratory infection had its onset in service or is otherwise etiologically related to active service? The rationale for the opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hemphill 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.