Citation Nr: 21006916 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-08 069 DATE: February 5, 2021 ORDER For the period prior to December 12, 2013, an initial rating in excess of 10 percent for left leg varicose veins characterized as status post endovascular laser ablation with residual varicosities is denied. For the period prior to January 29, 2018, a disability rating in excess of 40 percent for left leg varicose veins is denied. The July 2019 rating reduction from 40 percent to 10 percent for left leg varicose veins was improper; restoration of the 40 percent disability rating from January 29, 2018 is granted. FINDINGS OF FACT 1. Prior to December 12, 2013, the Veteran’s left leg varicose veins were productive of intermittent edema and pain with prolonged standing, walking, and running relieved by elevation of the extremity. 2. For the period after December 12, 2013, the Veteran’s left leg varicose veins were productive of persistent edema and stasis pigmentation; there has been no evidence of ulceration or massive board-like edema with constant pain. 3. The reduction in rating from 40 percent to 10 percent for the Veteran’s left leg varicose veins is not supported by the evidence of record; the record does not contain sufficient evidence of improvement in the Veteran’s condition and ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for left leg varicose veins prior to December 12, 2013 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7120. 2. The criteria for entitlement to a disability rating in excess of 40 percent for left leg varicose veins for the period prior to January 29, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, Diagnostic Code 7120. 3. The reduction of the rating of left leg varicose veins from 40 percent to 10 percent, effective January 29, 2018, was improper; restoration of the 40 percent rating is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105, 4.13. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter was previously before the Board in February 2018. At that time, the Board remanded the claim for an increased rating of the Veteran’s service-connected left leg varicose veins in order for the Agency of Original Jurisdiction (AOJ) to review a January 2018 VA examination in the first instance. As the record reflects that the AOJ issued a supplemental Statement of the Case (SOC) in July 2019, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings for Left Leg Varicose Veins Generally, disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 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 compensation, as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran has an initial 10 percent disability rating for his service-connected left leg varicose veins prior to December 12, 2013 and is rated at 40 percent for the period prior to January 29, 2018. Following the February 2018 Board remand, the AOJ reduced the Veteran’s disability rating to 10 percent, effective January 29, 2018. See 38 C.F.R. § 4.104, Diagnostic Code 7120. Pursuant to Diagnostic Code 7120, a noncompensable evaluation is assigned for asymptomatic palpable or visible varicose veins. A 10 percent evaluation is warranted for intermittent edema of an extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent evaluation is assigned for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent evaluation is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent evaluation is warranted with the following findings attributable to the effects of varicose veins: massive board-like edema with constant pain at rest. Here, the Veteran was afforded VA examinations for his left leg varicose veins in March 2011, December 2013, January 2018 and March 2019. The March 2011 VA examiner noted that the Veteran had ongoing aching pain reduced by compression stocking. No edema, ulceration or other signs of varicose vein complications were noted. The December 2013 VA examiner noted that the Veteran had consistently and persistently swollen legs with throbbing pain after work, and aches and fatigue after standing and walking that were relieved by elevation and compression. The Veteran was also noted to have persistent stasis pigmentation and persistent edema incompletely relieved by elevation of the extremity. The Veteran reported to the January 2018 VA examiner that he had daily discomfort, especially with prolonged standing, and that compression stockings helped reduce swelling, but his symptoms persisted. The Veteran’s symptoms were noted to include aching and fatigue in his leg after prolonged standing and walking. Beginning eczema, persistent stasis pigmentation, persistent eczema and persistent subcutaneous induration were also noted. The Veteran reported to the March 2018 VA examiner that he continued to use compression stockings and that his symptoms included aching and fatigue in his leg after prolonged standing relieved by elevation. Beginning eczema, persistent stasis pigmentation and persistent subcutaneous induration were noted. A June 2019 VA addendum requested clarification as to the difference between the finding in the December 2018 VA examination that the Veteran’s symptoms were not relieved by elevation of the extremity and the March 2019 VA examination finding that the Veteran’s symptoms were relieved by elevation. The examiner noted that any change may have been due to the underlying disease or a change in the relationship between the Veteran’s symptoms and his lifestyle. VA treatment records reflect that the Veteran underwent laser ablation for his left leg varicose veins in March 2011. Follow-up treatment notes documented no significant complaints of pain, numbness or weakness. The results of the procedure were noted to be “excellent.” The Veteran submitted a lay statement in July 2018 noting that he experienced daily leg swelling. Based on the foregoing, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent prior to December 12, 2013. The Veteran’s lay statements, VA treatment records and VA examination reflect that the Veteran experienced intermittent edema with aching and fatigue in the leg after prolonged standing or walking during the period prior to December 12, 2013. The record does not support a finding that the Veteran experienced persistent edema and stasis pigmentation or eczema with or without intermittent ulceration during that period. The Board also concludes that there is no basis for a rating in excess of 40 percent for the period after December 12, 2013. While the competent medical and lay evidence of record does reflect that the Veteran experienced persistent edema and stasis pigmentation, there is no evidence of persistent ulceration or board-like edema with constant pain so as to warrant a higher rating pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7120. The Board also finds that the reduction of the Veteran’s disability rating for left leg varicose veins from 40 percent to 10 percent effective January 29, 2018 was improper. As the rating reduction was initiated by VA during the course of the claim for an increased evaluation, the reduction is properly before the Board on this appeal. Where, as here, a rating reduction does not result in an overall reduction of the Veteran’s overall disability rating, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VA rating reductions, as with all VA rating decisions, must be based on review of the entire history of a veteran’s disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). A rating reduction is not proper unless a veteran’s disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Murphy v Shinseki, 25 Vet. App. 510, 517 (2014). The evidence must reflect an actual change in a veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. See 38 C.F.R. § 4.13. It must be determined that any such improvement also reflects an improvement in a veteran’s ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 416-19. When a veteran’s disability rating is reduced without following the applicable regulations, the reduction is void ab initio and the prior rating should be restored. See Greyczv v. West, 12 Vet. App. 288, 292 (1999); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A review of the record reflects that the Veteran’s disability rating was reduced from 40 percent to 10 percent based on the lack of a finding of persistent edema in the January 2018 VA examination. At the time of the January 2018 VA examination, the Veteran was noted to have persistent eczema, persistent stasis pigmentation and persistent subcutaneous induration. The Veteran submitted a lay statement in July 2018 noting that he still experienced daily swelling that interfered with his ability to perform his activities of daily living. Notably, in finding that a reduced rating was warranted, the AOJ made no finding that the proposed reduction was based on findings of improvement of the Veteran’s left leg varicose veins and a corresponding improvement in the Veteran’s ability to function under the ordinary conditions of work and life. As the evidence reflects that the Veteran continued to experience swelling, and that the condition continued to interfere with his activities of daily living, the Board finds that the evidence does not show improvement in the Veteran’s ability to function under the conditions of life and work so as to warrant a reduction of his rating. Accordingly, the Board finds that the reduction from 40 percent to 10 percent was improper and the 40 percent rating is restored, effective January 29, 2018. 38 C.F.R. § 3.105. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.