Citation Nr: 21069680 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 13-28 285 DATE: November 19, 2021 REMANDED Entitlement to a rating in excess of 20 percent for the period from December 14, 2017, to January 9, 2020, for residuals of varicosities surgery of the left greater saphenous system is remanded. The Veteran appealed the September 2020 Board decision to the extent that it denied an evaluation in excess of 20 percent for the period from December 14, 2017, to January 9, 2020. In June 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's June 2018 decision as to the increased rating for the period from December 14, 2017, to January 9, 2020, and remanded the matter for action consistent with the JMPR. REASONS FOR REMAND The Veteran had active service from August 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision by the agency of original jurisdiction (AOJ). In June 2018, the Board denied the Veteran's claim for increase. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's June 2018 decision and remanding the matter for action consistent with the JMR. When the matter was returned the Board, it was remanded for development of the record in December 2019. In July 2020, the AOJ increased the evaluation of the Veteran's left leg varicose veins disability to 20 percent, effective December 14, 2017. The matter was returned to the Board in September 2020. The Board (1) denied an evaluation in excess of 10 percent prior to December 14, 2017; (2) denied an evaluation in excess of 20 percent for the period from December 14, 2017, to January 9, 2020, and; (3) granted the Veteran an increased 40 percent evaluation for the period from January 9, 2020. Entitlement to a rating in excess of 20 percent for the period from December 14, 2017, to January 9, 2020, for residuals of varicosities surgery of the left greater saphenous system is remanded. By way of history, the Board remanded this matter in August 2017 to obtain a new examination to clarify whether the Veteran had persistent edema in his left leg because of inconsistent evidence in the record. Pursuant to the remand directives, the Veteran was afforded a VA examination in December 2017. The examiner noted intermittent edema of the left leg, but did not specifically discuss whether persistent edema was present and whether the symptoms were incompletely relieved by elevation of the extremity. In a June 2018 decision, the Board relied on the December 2017 examination to deny the Veteran's increased rating claim. As noted above, the Veteran appealed the June 2018 decision to the Court. As outlined in the June 2019 JMR vacating the Board's June 2018 decision, the December 2017 examination was deemed inadequate as it did not fully comply with the August 2017 Board remand. This inadequacy was again noted in a December 2019 decision when the matter was returned to the Board. While the matter was in remand status, a July 2020 rating decision assigned the Veteran an increased 20 percent rating for the period from December 14, 2017, to January 9, 2020. Inexplicably, the RO assigned the 20 percent rating based on evidence of persistent edema of the left leg. However, as noted above, the medical evidence of record for this period showed only intermittent edema, but failed to address the presence of persistent edema. When this matter was again before the Board in September 2020, the Board relied on the inadequate December 2017 examination to deny a rating in excess of 20 percent for the period from December 14, 2017, to January 9, 2020. In that decision, the Board noted that the evidence showed no more than intermittent edema. In the June 2021 JMPR, the parties again agreed that the Board erred by relying on the inadequate December 2017 examination. Here, the Veteran's left leg disability is rated under Diagnostic Code (DC) 7120. Under that code, a 20 percent evaluation is assigned where there is persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is assigned where there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. In an October 2021 Correspondence, the Veteran's attorney argues that by the AOJ assigning a 20 percent rating for the period in question, this implies that the Veteran has persistent edema of the leg, as such a finding is necessary for the assignment of a 20 percent rating under DC 7120. His attorney further argues that as the inadequate December 2017 examination also shows persistent stasis pigmentation, the Veteran should be awarded an increased 40 percent rating. Unfortunately, the Board cannot substitute the AOJ's implications, for objective medical evidence showing that the Veteran's symptoms rose to the level of severity to meet the criteria for an increased rating for this period. Thus, the resolution of this appeal hinges on a VA examination that fully addresses the criteria for a 40 percent rating under DC 7120 for the period from December 14, 2017, to January 9, 2020. To date, no examination of record has done so. Accordingly, remand is necessary for a retrospective examination to adequately assess the severity of the Veteran's residuals of varicosities surgery of the left greater saphenous system for the period in question. Extraschedular Consideration Lastly, the Veteran's attorney requested the Board to consider a referral for extraschedular consideration. See Correspondence, submitted October 18, 2021. The Board has considered whether such action is warranted and concludes that it is not. The initial consideration for determining whether extraschedular referral is warranted is if the evidence presents such an exceptional disability picture so that the available schedular evaluation is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran's symptoms included aching, fatigue, pain, discomfort, swelling, edema, stasis pigmentation, and eczema. The Veteran's attorney also contends that the symptoms affect the Veteran's activities of daily living and occupational tasks. A comparison between the level of severity and symptomatology of the disability with the established criteria shows that the rating criteria more than reasonably describe the Veteran's disability level and symptomatology. The criteria specifically provide for evaluation of the disability based upon all the symptoms exhibited by the Veteran, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. Further, Diagnostic Code 7120 considers relief of symptoms from elevating the legs or use of compression hosiery, which are precisely the methods the Veteran has used to treat his symptoms. Finally, for any period that the Veteran's symptoms were not relieved by these methods, a 20 percent rating under this code also contemplates such. Given the above, the Board finds that the Veteran's residuals of varicosities surgery of the left greater saphenous system are reasonably contemplated by the assigned diagnostic code. Thus, the threshold issue under Thun is not met, and further consideration of an extraschedular rating is not warranted. To the extent that the Veteran contends that he suffers from other venous conditions, no argument has been advanced as to how the Veteran's compensable evaluation under DC 7120 fails to consider, or otherwise compensate him for the impairment caused by such conditions. Should the Veteran contend that he suffers from any venous condition for which service connection is warranted, he is free to file a claim for any such disability. The matters are REMANDED for the following action: Obtain a retrospective medical opinion from an appropriate clinician to determine the severity of the Veteran's service-connected residuals of varicosities surgery, left greater saphenous system for the period from December 14, 2017, to January 9, 2020. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is asked to specifically address whether the Veteran's disability was manifested by persistent edema during this period. Additionally, the examiner must provide a comprehensive list of symptoms that were associated with the service-connected residuals of varicosities surgery of the left greater saphenous system during the time outline above. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.