Citation Nr: 21074650 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-00 097 DATE: December 15, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for service-connected varicose veins, left lower extremity, is granted. REMANDED Entitlement to a rating in excess of 40 percent for service-connected varicose veins, left lower extremity, is remanded. FINDING OF FACT The Veteran's varicose veins of the left lower extremity are productive of persistent edema and stasis pigmentation with intermittent ulceration. CONCLUSION OF LAW The criteria for entitlement to a 40 percent rating for varicose veins of the left lower extremity have 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 (DC) 7120. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1996. In December 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript will be associated with the file during the normal course of business. Increased Rating A. Legal Principles and Regulations Disability evaluations are determined by application of the criteria set forth in the 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 (2016). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the 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. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). B. Analysis In a May 1997 rating decision service connection for varicose veins was granted at 10 percent under DC 7120. In a July 2008 rating decision, the Veteran's rating for varicose veins of the left lower extremity was increased to 20 percent. The Veteran did not file a notice of disagreement contesting the initial rating. However, on April 22, 2016, the Veteran filed a claim of increase with respect to his service-connected varicose veins of the left lower extremity. Given that compensation already has been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Therefore, the relevant temporal focus for this disability is one year prior to the date of receipt of the claim; thus, the appeal period begins on April 22, 2015. 38 C.F.R. § 3.400. Diagnostic Code 7120 provides 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. Turning to the evidence of record, in April 2016 non-VA medical records, the examiner noted that the Veteran has a long-standing problem with varicose vein disease, severe venous insufficiency and chronic dermatitis. He has severe chronic lower extremity edema and has multiple problems with cellulitis and exacerbation of venous statis disease. The examiner noted that in the lower extremity, the Veteran has pertinent persistent edema, stasis pigmentation, and eczema. He has never had a frank ulcer of the left lower extremity. The examiner noted that the Veteran's varicose vein disease of the left lower extremity continues to worsen. See April 2016 medical records from The Vein Center. In a May 2016 VA examination report, the VA examiner noted long standing history of varicose veins, that was still present on the left leg. The VA examiner noted a diagnosis of various veins, with minimal functional limitation. The Veteran reported persistent edema and stasis pigmentation on his left lower extremity. Physical examination revealed that the Veteran has visible superficial varicose veins in the inner thighs. No edema was noted on the left leg. The VA examiner noted asymptomatic palpable and visible varicose on left extremity. The left extremity has beginning stasis pigmentation. The VA examiner noted that there is no persistent statis pigmentation and persistent edema on the left lower extremity. In July 2016 non-VA medical records, the examiner noted that the Veteran's varicose vein disease is productive of persistent edema and statis pigmentation or eczema with multiple bouts of venous stasis ulcers. Overall, the examiner noted that the Veteran suffers from "severe chronic edema, worsening stasis pigmentation, dermatitis, cellulitis, skin breakdown and documented serve venous insufficiency on duplex examination" of the left lower extremity. See Medical records from July 2016 to March 2018 from The Vein Center and Vein and Vascular treatment centers. In a May 2017 VA examination report for artery and vein conditions, the VA examiner noted a diagnosis of varicose veins of the left lower extremity. The Veteran reported leg heaviness, pain, fatigue, and weakness with compression stockings vanicreme and leg elevation. The VA examiner identified the following symptoms with the Veteran's varicose veins disease: aching in leg after prolonged standing, aching in leg after prolonged walking, fatigue after standing and walking, and symptoms relieved by elevation and compression. The VA examiner noted beginning stasis pigmentation on the left lower extremity, with intermittent ulceration, and persistent edema that is incompletely relived by elevation of the extremity. Based on the foregoing, the Board finds that the evidence of record supports an increased rating of 40 percent throughout the period on appeal. Specifically, private medical records from the Vein Center and from Vein and Vascular treatment centers, as well as the May 2017 VA examination report, all reflect that the Veteran has varicose veins of the left lower extremity that are productive of persistent edema and statis pigmentation with intermittent ulceration. This is the exact criteria listed under DC 7120 for a 40 percent rating. As such, a 40 percent rating for this disability is warranted. Also, the Board acknowledges that during the December 2021 Board hearing, the Veteran asserted that a VA examination was inadequate because the examiner diagnosed him with "spider veins" rather than varicose veins. However, as discussed in detail above, both the May 2016 and May 2017 VA examiner diagnosed the Veteran with varicose veins of the left lower extremity. Thus, the Board finds that the evidence of record does not substantiate the Veteran's claim that the VA examinations are inadequate. Nevertheless, for the reasons discussed in more detailed below, the Board will remand the issue of whether a rating in excess of 40 percent is warranted for the Veteran's varicose veins of the left lower extremity. REASONS FOR REMAND With respect to the claim as to entitlement to a rating in excess of 40 percent for service-connected varicose veins of the left lower extremity, further development is warranted. Here, during the December 2021 Board hearing, the Veteran testified to additional symptoms associated with his varicose vein disease of the left lower extremity. Particularly, the Veteran testified that he feels numbness in his toes. As this symptom was not considered in prior VA examinations, the Board finds that a VA examination is warranted to evaluate whether this symptom effects the severity of the Veteran's varicose veins of the left lower extremity. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding VA and non-VA records relevant to the Veteran's claim for varicose veins of the left lower extremity. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Upon completion of the above to the extent possible, schedule the Veteran for a VA examination to ascertain the severity of his service-connected varicose veins of the left lower extremity. The examiner should specifically have the Veteran provide a full account of his symptoms. The examiner should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with these conditions. All medical findings are to be expressed in terms conforming to the schedular criteria of under Diagnostic Code 7120. Specifically, the VA examiner is asked to address the Veteran's statement that he feels numbness in his toes and whether this symptom is a) related to the Veteran's varicose veins of the left lower extremity and b) if so, does this symptom effect the severity of the Veteran's disability and how so? Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). (continued on next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.