Citation Nr: 21070584 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-01 982 DATE: November 24, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for varicose veins of the left lower extremity (LLE) on a schedular basis prior to September 17, 2014 is denied. Entitlement to a rating in excess of 50 percent for varicose veins of the LLE on a schedular basis beginning September 17, 2014 is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for varicose veins of the LLE on an extraschedular basis prior to September 17, 2014 is remanded. Entitlement to a rating in excess of 50 percent for varicose veins of the LLE on an extraschedular basis beginning September 17, 2014 is remanded. Entitlement to a total disability due to individual unemployability (TDIU) prior to September 29, 2014 is remanded. Entitlement to TDIU beginning December 2, 2016 is remanded. FINDINGS OF FACT 1. The Veteran's pre-induction examination showed the Veteran was diagnosed with symptomatic varicose veins prior to active-duty service. 2. Prior to September 17, 2014, the Veteran's varicose veins of the LLE manifested in persistent edema, stasis pigmentation, eczema, and intermittent ulceration. 3. Beginning September 17, 2014, the Veteran's varicose veins of the RLE manifested in persistent edema, subcutaneous induration, stasis pigmentation, eczema, and persistent ulceration, but did not manifest in broad-like edema or constant pain at rest. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 30 percent for varicose veins of the LLE on a schedular basis prior to September 17, 2014 have not been met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.22, 4.104, Diagnostic Code 7120. 2. The criteria for entitlement to a rating in excess of 50 percent for varicose veins of the LLE on a schedular basis beginning September 17, 2014 have not been met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.22, 4.104, Diagnostic Codes 7120 (2021), 7121 (86 Fed. Reg. 54095 (Sept. 30, 2021)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to February 1970. The Veteran testified before the undersigned Veterans Law Judge in December 2014. In the October 2018 decision, the Board of Veterans' Appeals (Board), in part, found the Veteran's TDIU claim was moot beginning on September 4, 2010. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted a Joint Motion for Partial Remand (JMPR) which vacated the Board's finding that the Veteran's TDIU claim was moot after December 1, 2016; and the JMPR remanded the claim to the Board for further development and readjudication in accordance with the terms of the JMPR. The matters were most recently remanded by the Board in August 2020. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Entitlement to increased ratings for LLE varicose veins Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's varicose veins are currently rated under Diagnostic Code 7120 for varicose veins, which provides a 10 percent rating for varicose veins with 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 for persistent edema which is not completely relieved by elevation of the extremity, whether or not there is beginning stasis pigmentation or eczema. A 40 percent rating is assigned when varicose veins cause persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is assigned when there is evidence of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent evaluation is assigned for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. During the pendency of this appeal, VA amended the Schedule for Rating Disabilities: The Cardiovascular System, 86 Fed. Reg. 54089, 54095 (Sept. 30, 2021), effective November 14, 2021. Under the new amendments, varicose veins are to be rated under Diagnostic Code 7121, and the Board notes there is no difference between the criteria of Diagnostic Code 7120 and 7121. In February 2009 VA treatment notes, the Veteran presented with distal discoloration, 1+ edema, and 1 + pulses in the LLE; however, there were no ulcers observed. The Veteran also reported pain with ambulation. The Veteran was afforded a VA examination in May 2009. The examiner found edema and stasis pigmentation or eczema below the knee. There were numerous small varicosities on the anterior and medial leg and foot. There was no evidence of ulceration, massive edema, or broad-like edema. In August 2009 VA treatment notes, the Veteran was diagnosed with a venous stasis ulcer of the left foot. The Veteran reported that pain from the ulcer limited his ability to stand at work. In the October 2009 notice of disagreement (NOD), the Veteran reported that an open venous ulcer was treated in April 2009, and there were signs of venous ulcers in May 2009 and an infected venous ulcer in July 2009. In March 2010 VA treatment notes, the Veteran presented with hyperpigmentation in the LLE. In November 2010 VA treatment notes, the Veteran reported painful varicose veins. In March 2011 VA treatment notes, the Veteran reported distention after being on his feet all day, occasional bleeding from veins, and a history of ulceration a month prior to the examination, but the ulcers had healed. The Veteran underwent a laser ablation in April 2011. In May 2011 VA treatment the examiner noted good pulses and no edema. The Veteran was provided with a VA examination in October 2011. The Veteran showed asymptomatic palpable varicose veins; asymptomatic visible varicose veins; aching and fatigue in the leg after prolonged standing and walking; symptoms relieved by elevation; and symptoms relieved by compression hosiery. The examiner found persistent stasis pigmentation or eczema, intermittent ulceration, persistent edema, and persistent subcutaneous induration in both extremities. The examiner noted the Veteran reported several episodes of ulcerations, which had all healed, and there were well-healed scars from the groin to the medial aspect of the knees. The scars were not painful, unstable, or having a total area of at least 39 sq. cm. In February 2012 VA treatment notes, the examiner noted intermittent ulcers. Conservative management was not helping with recurrent ulcers. The Veteran was afforded a VA examination in August 2012. The Veteran reported off and on swelling in his LLE. He had ulceration off and on, approximately 30 times over the previous 10 years. However, there were no ulcers present at the time of examination. The examiner noted symptoms of aching and fatigue in the leg after prolonged standing or walking; symptoms relieved by elevation of extremity; symptoms relieved by compression hosiery; persistent stasis pigmentation or eczema; intermittent ulceration; and intermittent edema. The Veteran did present with scars, but they were not painful, unstable, or having a total area of at least 39 sq. cm. In the January 2013 VA Form 9 and July 2014 VA 646 Statement, the Veteran reported persistent ulcers. In March 2014 VA treatment records, the Veteran presented with a small ulcer on the LLE. In September 2014 VA treatment notes, the examiner noted persistent edema, subcutaneous induration, stasis pigmentation, and persistent ulceration. In the December 2014 Board hearing, the Veteran argued that his ulcerations were persistent instead of intermittent. The Veteran noted that conditions can be static, which means the symptoms are basically the same every day; or they can be recurrent, which means they never go away but are worse on some days. The Veteran was provided with a VA examination in July 2015. The Veteran reported sharp and stabbing pain in his leg, which was improved by elevating his leg. The Veteran was unable to tell the difference between pain related to his varicose veins, and pain from intermittent claudation related to this peripheral arterial disease (PAD). The examiner noted asymptomatic palpable varicose veins; asymptomatic visible varicose veins; aching in leg after prolonged standing; aching in leg after prolonged walking; fatigue in leg after prolonged walking; symptoms relieved by elevation of extremity; symptoms relieved by compression hosiery; peristent stasis pigmentation; peristent eczema; intermittent ulceration; persistent edema that is incompletely relieved by elevation; persistent edema; and persistent subcutaneous induration. The Veteran had claudation, diminished peripheral pulses, and trophic changes related to PAD. The Veteran's scars were not painful, unstable, or of a total area of at least 39 sq. cm. The examiner noted skin irregularities and vitiligo around the ankles, but there was no evidence of broad-like edema or constant pain at rest. In December 2015, an addendum opinion was provided, which found the Veteran's PAD was less likely than not caused by or aggravated by the service-connected varicose vein disability of the lower extremities. The Veteran has experienced dermatitis related to his venous condition. See March 2019 VA treatment records; October 2019 VA treatment records. The Veteran was provided with a VA examination in August 2021. The Veteran's left lower extremity showed aching after prolonged standing and walking, fatigue after prolonged standing and walking, and symptoms were relieved with compression and elevation. The examiner found persistent statis pigmentation, intermittent ulceration, and persistent edema. Bilaterally, the Veteran had asymptomatic palpable varicose veins; asymptomatic visible varicose veins; aching and fatigue in the leg after prolonged standing and walking; symptoms relieved by elevation; and symptoms relieved by compression hosiery. The examiner found persistent stasis pigmentation or eczema, intermittent ulceration, persistent edema, and persistent subcutaneous induration in both extremities. The examiner noted the Veteran reported several episodes of ulcerations, which had all healed, and there were well-healed scars from the groin to the medial aspect of the knees. In the December 2014 Board hearing, the Veteran's representative argued the VA examinations of record were inadequate, citing 38 C.F.R. § 4.70. However, no specific contentions were provided to support the argument of inadequacy. The Board notes that the questions of whether an examiner is competent and whether he has rendered an adequate examination are two separate inquiries. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that examination, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011). This presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. Rather than challenging the competency, the Veteran's general objection is based to the examinations as a whole. However, there is no evidence to support the Veteran's contentions, nor is the Board able to discern any irregularities in the examination report. Thus, the May 2009, October 2011, and August 2012 VA examiners' findings are adequate. During the December 2014 Board hearing, the Veteran reported that he did not have symptoms related to his varicose veins prior to active service. The Veteran's representative argued that the presumption of soundness should attach to the Veteran because he was allowed to enlist into active service. The Board notes the Veteran was inducted into active duty on January 31, 1968. See VA Form DD-214. The Veteran's October 1967 pre-induction examination listed varicose veins, and noted that the Veteran claimed to have pain with running and standing. Prior to induction into active duty, in December 1967, Dr. J.C.S. advised against prolonged standing due to the Veteran's bilateral lower extremity varicose vein symptoms. Based upon documentation in the Veteran's service treatment records (STRs) prior to induction into active service, the Veteran's LLE varicose vein symptoms warranted a 10 percent disability rating under Diagnostic Code 7120 due to symptoms of fatigue and aching after prolonged standing or walking. Due to the Veteran's pre-existing disabilities which were noted in the pre-induction examination, the presumption of soundness does not apply as argued by the Veteran's representative. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Accordingly, as the disability preexisted service with a disability rating of 10 percent, VA must subtract the level of disability upon induction from the Veteran's current level of disability. 38 C.F.R. § 4.22. Prior to September 17, 2014, the record does not support a rating in excess of 30 percent (40 percent minus 10 percent) for varicose veins under Diagnostic Code 7120. The evidence of record would have to show persistent ulceration was part of the Veteran's symptomatology to warrant a higher schedular rating. The Board finds the Veteran's disability picture manifested in intermittent ulceration prior to September 17, 2014. The Board draws specific attention to the August 2012 VA examination, where the Veteran reported he had ulcerations off and on, for a total of 30 times in 10 years. This would average out to ulcerations occurring approximately 3 times a year, or once every four months. Ulcerations three times a year do not raise to the level of persistent ulcerations. The Board is cognizant of VA treatment records positive for ulcerations, but the VA treatment records, in combination with the VA examinations show the Veteran's ulceration were intermittent and not persistent prior to September 17, 2014. The Veteran provided lay evidence of persistent ulcers in the January 2013 VA Form 9 and July 2014 VA 646 Statement. The Veteran and his representative have argued that the Veteran's ulcerations were "recurrent," which would raise to the level of persistent ulcerations. See December 2014 Board hearing. However, the terms "static" and "recurrent chronic," as argued by the Veteran are not within the schedular criteria for Diagnostic Code 7120. Based upon the schedular criteria, the Veteran's ulcerations are not persistent because the record shows the Veteran presented for treatment with ulceration, and presented without ulceration throughout the record. The VA examiner has the medical knowledge to differentiate between intermittent and persistent ulcerations. Although the Veteran believes his ulcerations were persistent prior to September 17, 2014, the Veteran has not been shown to have the requisite medical knowledge to identity the difference between intermittent and persistent ulcers. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds the medical records of record more probative in determining the onset of persistent ulcerations. The Veteran's varicose veins, prior to September 17, 2014, warrant a 40 percent rating, minus 10 percent for the pre-existing condition. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is otherwise against the Veteran's claim, that doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b). Beginning September 17, 2014, the record does not support a rating in excess of 50 percent for varicose veins under Diagnostic Code 7120, or Diagnostic 7121 as of November 14, 2021. The evidence of record would have to show that massive broad-like edema with constant pain at rest was part of the Veteran's symptomatology to warrant a higher schedular rating. At no point in the record have the Veteran's varicose veins in the LLE manifested in broad-like edema or constant pain at rest. Without either symptom, the Board is unable to find the Veteran's varicose veins most closely approximate a 100 percent schedular rating. The Veteran's varicose veins, beginning September 17, 2014, warrant a 60 percent rating, minus 10 percent for the preexisting condition. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is otherwise against the Veteran's claims, that doctrine is not for application, and the claim is denied. Id. The Board notes the Veteran's representative argued VA failed to consider additional Diagnostic Codes, and specifically listed Diagnostic Code 7118. See December 2014 Board hearing. The Veteran has not been diagnosed with angioneurotic edema as required under Diagnostic Code 7118. The Board finds the current Diagnostic Code most appropriate for the Veteran's varicose veins of the LLE. REASONS FOR REMAND The Veteran's representative suggested that the Veteran's varicose veins warranted referral for extraschedular consideration. See December 2014 Board hearing. The Board notes that the Veteran's varicose veins have manifested in cellulitis throughout the appellate period, to include hospitalization and emergency room visits. October 2011 VA examination; March 2021 VA treatment notes. In August 2021, the examiner determined the cellulitis was part of the Veteran's service-connected varicose veins. Cellulitis is not contemplated by the specific rating criteria. 38 C.F.R. § 4.104, Diagnostic Codes 7120-7121. Consequently, the Board finds that consideration of an extraschedular rating for the Veteran's LLE varicose veins by the regional office (RO) is warranted. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). A remand is thus needed to refer the claims to Under Secretary for Benefits or the Director of the Compensation Service for consideration of the assignment of an extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1). Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The TDIU claims noted above are inextricably intertwined with this rating matter and must also be remanded. The matters are REMANDED for the following action: The RO should refer this case to VA Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration of LLE varicose veins under 38 C.F.R. § 3.321(b)(1) for the period prior to September 17, 2014 and beginning September 17, 2014. Attention is directed to the evidence of cellulitis. All documentation obtained pursuant to this determination must be included in the claims file prior to readjudication. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.