Citation Nr: 21012062 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-20 784 DATE: March 3, 2021 ORDER Entitlement to a rating higher than 40 percent for right lower extremity varicose veins with lipodermatosclerosis is denied. Entitlement to a rating higher than 40 percent for left lower extremity varicose veins with lipodermatosclerosis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REFERRED The Veteran’s VA treatment records show that she wished to submit a claim for service connection for a knee disability. The Veteran is advised that a claim for benefits must now be submitted on the appropriate VA application form. See 38 C.F.R. § 3.1(p). FINDINGS OF FACT 1. The Veteran’s right and left leg varicose veins with lipodermatosclerosis have not been found to have persistent ulceration or massive board-like edema with constant pain at rest. 2. The Veteran’s scarring from varicose veins does not affect an area of at least 929 square centimeters, and it is not painful or unstable. 3. The preponderance of the evidence does not indicate that the Veteran’s service-connected varicose veins with lipodermatosclerosis prevent her from engaging in all forms of substantially gainful employment that are consistent with her education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for right lower extremity varicose veins with lipodermatosclerosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7120; 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 2. The criteria for a rating higher than 40 percent for left lower extremity varicose veins with lipodermatosclerosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7120; 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 3. The criteria for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to August 1968. This case comes to the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In August 2018, the case was remanded by the Board for further development. The Veteran attended a Board hearing in June 2016. In November 2020, the Veteran was informed that the Veterans Law Judge who conducted the hearing was no longer employed at the Board. She responded in December 2020 that she did not wish to appear at another Board hearing. Varicose Veins The Veteran requests ratings higher than 40 percent for her right and left lower extremity varicose veins with lipodermatosclerosis. She was initially assigned a 10 percent rating for each leg, effective April 8, 2011. In May 2013, the Veteran submitted a claim for an increased rating for her varicose veins. In a February 2014 rating decision, she was assigned increased ratings of 40 percent for each leg, effective May 21, 2013. These evaluations were continued in a May 2014 rating decision. Disability ratings are determined by applying the criteria set forth in 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s varicose veins disabilities are rated under Diagnostic Code 7120. Varicose veins are assigned a 10 percent rating when there is intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation or compression hosiery. A 20 percent rating is assigned when there is persistent edema, incompletely relieved by elevation, with or without beginning stasis pigmentation or eczema. A 40 percent rating is assigned when there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is assigned when there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is assigned when there is massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120. The evaluations are assigned to each extremity, and when more than one extremity is involved, they are combined under 38 C.F.R. § 4.25, using the bilateral factor (38 C.F.R. § 4.26) is applicable. Id. at Note. The Veteran attended a VA examination in November 2013. She reported having persistent varicosities, and although she wore compression stockings on a routine basis, she continued to have swelling, achiness, and heaviness, as well as numbness and tingling in her feet. She did not take any medication for these symptoms, and was working on a part-time basis, just two hours a day, 4 to 5 days a week, doing cleaning. She reported that elevation of the extremities did reduce some of the edema and swelling. She did not report any skin ulcerations or skin breakdown. She was not precluded from physical activity as a direct result of her varicose veins. The examiner found that the Veteran had aching and fatigue in the legs after prolonged standing or walking, symptoms were relieved by elevation and compression hosiery, persistent stasis pigmentation or eczema, and persistent edema. She did not use any assistive devices for locomotion. The examiner found that the Veteran’s numbness and pain were symptoms related to the varicose veins. The Veteran also had lipodermatosclerosis. The examiner noted that the Veteran had recently had a pulmonary embolism, but found that this was less likely than not related to her varicose veins. A May 2014 addendum opinion stated that the Veteran’s lipodermatosclerosis caused minimal to mild functional impairment, and standing for long periods would exacerbate the condition. The Veteran also attended a VA examination in June 2019. She reported that she had aching in the legs with varicose veins in her entire legs and ankles. She used compression stockings. She was diagnosed with a bilateral varicose veins lipodermatosclerosis rash which had caused chronic disfigurement of the lower legs. The examiner found that the Veteran had aching and fatigue after prolonged standing and walking; persistent stasis pigmentation; persistent edema that was incompletely relieved by elevation; and persistent subcutaneous induration. The Veteran did not have beginning/persistent eczema or massive board-like edema. The Veteran was found to have scarring on the right lower ankle/leg that was 7 by 11 centimeters, and on the left lower ankle/leg that was 19 by 10 centimeters. The scars did not have underlying soft tissue damage. The scarring was not painful or unstable. The examiner found that physically demanding tasks such as stairs and ladders were limited, but sedentary tasks such as sitting were unlimited. The Veteran’s private treatment records during the appeal period show frequent findings of lower extremity edema. In May 2013, she was found to have no skin ulcerations, lesions, or rashes. In August 2013, she was noted to have large, bulging varicose veins of the bilateral legs. In April 2014, she was noted to have varicose veins and easy bruising. There was no real edema, but the right lower leg appeared slightly larger than the left. In September 2016, she was treated for left leg pain, with numbness and tingling in her foot. She was tender to palpation and ambulated with a wheeled walker. In December 2017, she was found to have slight left leg edema and her left lower calf area had poor circulation and was inflamed. In February 2018, she was noted to have no edema. In October 2018, she reported wearing support stocking daily, but still had daily symptoms, including lower extremity edema. She was noted to have chronic skin changes from poor vascularity. She was diagnosed with venous stasis dermatitis. VA treatment records also show continuing treatment for varicose veins. In July 2014, she was noted to have varicose veins. There was no palpable pretibial edema. She was prescribed support panty hose. In August 2015, there was also no palpable pretibial edema. The Veteran was evaluated in March 2016 for complaints of right knee swelling after a fall. She had gait stability with ambulation and could rise and lower from the chair with minimal assistance to her walker. There was no edema, but she had significant varicosities bilaterally. In August 2016, there was also no palpable edema, but the Veteran was wearing compression stockings. A November 2018 evaluation found no pretibial edema. In April 2019, the Veteran reported that she had lower extremity edema and skin dermatitis that was chronic. Examination found bilateral lower extremity edema, greater on the right, with venous status dermatitis bilaterally. The Board has reviewed all of the evidence of record and finds that ratings higher than 40 percent for the Veteran’s right and left leg varicose veins are not warranted. The VA examinations show that the Veteran has been found to have persistent edema and stasis pigmentation, and this is the basis for the 40 percent rating. She has never been found, however, to have persistent ulceration or massive board-like edema, and these symptoms are part of the required criteria for higher ratings. The Veteran also has not indicated that she has had persistent ulceration or massive board-like edema, nor are these symptoms indicated in any VA or private treatment records. A rating higher than 40 percent is therefore denied. The Board acknowledges that the Veteran’s diagnosis has been expanded to include lipodermatosclerosis, which is inflammation and discoloration of the subcutaneous fat layer. The rating criteria for varicose veins does include changes in the skin as part of the rating criteria, as stasis pigmentation is specifically listed in the rating criteria, as is edema. The Board finds that to assign a separate rating for these overlapping symptoms would therefore constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). While the Veteran was also found to have scarring caused by her varicose veins, and scarring can be assigned separate compensable ratings in certain instances, the Board does not find that the criteria for a separate compensable rating for scarring have been met. Scars in places other than the head, face, and neck, are rated under Diagnostic Code 7801, 7802, or 7804. A 10 percent rating can be assigned when there is a scar associated with underlying soft tissue damage (or, under the prior wording of the rating criteria, that is “deep and nonlinear”) that affects an area of at least 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801. A 10 percent rating can be assigned when there is a scar not associated with underlying soft tissue damage that affects an area of at least 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7802. A 10 percent rating is also assigned when there are one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Here, the Veteran was found to have 77 square centimeters of scarring on her right leg and 190 square centimeters of scarring on her left leg, which unfortunately is not of sufficient size to allow for a compensable rating under Diagnostic Code 7802. Her scars were not found to have underlying soft tissue damage. While the Veteran has pain in her legs, this has been found to be due to her varicose veins and edema, and the scarring itself was not found to be painful or unstable. A compensable rating therefore cannot be assigned under Diagnostic Code 7802. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 will be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. In this case, however, there is no evidence indicating any functional impairment or other disabling effects from the Veteran’s scarring, and therefore no other diagnostic codes are applicable. The Board also notes that the effective date assigned for the increased 40 percent ratings, May 21, 2013, is appropriate. A claim for an increased rating was received from the Veteran on May 21, 2013. Except when otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Claims for increased benefits may be awarded at the earliest date in which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year of the date such an increase occurred. Otherwise, the increase is effective the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). In this case, there is no medical evidence indicating that the Veteran’s varicose veins increased in severity during the one year prior to receipt of her claim of May 21, 2013. Her VA and private treatment records show no treatment for varicose veins during this period which indicate that a worsening has occurred. The Board is therefore unable to assign an effective date earlier than May 21, 2013. The Veteran has also asserted that her rating is incorrect because the bilateral factor has not been properly applied. The Board notes that the way that ratings are assigned is not a straight-forward addition of the separate rating amounts, but are instead placed in a Combined Ratings Table, which then calculates the total evaluation. 38 C.F.R. § 4.25. This table shows that a 40 percent rating combined with a 40 percent rating totals 64 percent, which is rounded to a 60 percent rating. When a disability impacts both the right and left legs, a “bilateral factor” is added to the disability, which is calculated as 10 percent of the combined evaluation. 38 C.F.R. § 4.26. An additional “bilateral factor” of 6.4 percent can therefore be added to the 60 percent rating, and this is rounded to a 70 percent evaluation. The Codesheet attached to the April 2015 rating decision shows that the Veteran has been assigned a total 70 percent rating, including the bilateral factor. It therefore indicates that the Regional Office has appropriately calculated the Veteran’s total rating, and the appropriate rating has been assigned. In sum, the Board finds that ratings higher than 40 percent for both the right and left legs are appropriate, and no higher ratings can be assigned. The claims are denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against the assignment of any higher ratings. See 38 U.S.C. § 5107(b). TDIU The Veteran has also applied for a TDIU. In her March 2014 application for a TDIU, she wrote that she was unable to work due to varicose veins with lipodermatosclerosis. She wrote that she had last worked as a housekeeper in February 2014, and that her highest level of education was one year of college. She wrote that as a housekeeper at a funeral home, she was required to clean the viewing rooms, the casket room, and the private rooms. She wrote that the business had three floors, and her duties required her to climb stairs with the cleaning supplies and tools to clean all the floors. The Veteran has also submitted statements indicating that her work is impaired by her inability to drive, which is due to a nervous condition. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). This regulation provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more disabilities, there must be at least one that is rated 40 percent or more, with the remaining disabilities combining to 70 percent or more. Id. For the purpose of establishing one 60 percent disability, disabilities of both lower extremities, including the bilateral factor, will be considered. Id. The Veteran has been awarded service-connection for right lower extremity varicose veins with lipodermatosclerosis (40 percent) and left lower extremity varicose veins with lipodermatosclerosis (40 percent). She has a combined disability rating of 70 percent since May 21, 2013. The Veteran therefore has met the schedular threshold criteria for a TDIU since this time. For a veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a TDIU, neither the appellant’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. In this case, the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities prevent her from obtaining or maintaining all forms of gainful employment. The Veteran attended a VA examination in November 2013. She reported that prolonged weight bearing aggravated her condition by causing discomfort and increased swelling. She was found not to be precluded from physical activity as a direct result of her bilateral lower leg varicose veins. The examiner found that the condition had caused her to decrease her work hours to 2 hours a day. The Veteran also attended a VA examination in June 2019. The examiner found that her condition did impact her ability to work, because physically demanding tasks such as stairs and ladders were limited. Her ability to perform sedentary tasks were unlimited. The Veteran’s VA and private treatment records show that she does receive continued treatment for varicose veins and leg swelling, but they do not indicate that she has ever been advised by medical professional that she needs to decrease physical activity or stop working due to this condition. In April 2019, the Veteran reported to her treating VA primary care physician that she had lower extremity edema and skin dermatitis that was chronic. She said that she had to quit her job because she could not stand the pain and discomfort with standing for more than one hour. The Board acknowledges that even before the Veteran stopped working in 2014, her work hours may have been marginal, as she was only working 2 hours a day due to leg pain in 2013. See 38 C.F.R. § 4.16(a) (Generally, marginal employment is deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person.). Nevertheless, the Board does not find that the evidence overall indicates that the Veteran’s right and left leg varicose veins with lipodermatosclerosis prevent her from performing all forms of gainful employment consistent with her education and experience. The Veteran has written that she was unable to keep working as a housekeeper in a funeral home because she had severe leg pain with prolonged standing, and that she was unable to carry her cleaning equipment up the stairs to the second and third floors of the building. The Board accepts that the Veteran was unable to continue working in this particular job, but it does not demonstrate that she would have been unable to work in any other job, such as a job in a building that was only one story or that had an elevator. There is also no evidence indicating that she would not have been able to work in a job that was sedentary, or even partially sedentary, such that she would not have been required to stand or walk the entire time while working. The Veteran is only service connected for her bilateral leg disabilities, and while she has other disorders that could impact her ability to perform any job, such as her reported nervous condition, presbyopia, and venous thrombosis, these disabilities are not service-connected, and their impact on her employment cannot be considered when determining whether a TDIU is warranted. The preponderance of the most probative medical evidence is therefore against finding that the Veteran is unable to obtain or maintain employment due to her service-connected disabilities alone. While the question of employability is ultimately one for the Board, as the fact finder, to decide, the findings of the VA examiner provide highly persuasive evidence regarding whether the Veteran’s symptoms would cause any significant occupational impairment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). An evaluation of the probative value of a medical opinion is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusions reached. The Board may then determine the credibility and weight to be attached to such opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds the evidence in the November 2013 and June 2019 to be competent and credible, and these examiners’ opinions are highly persuasive, as they were based on in-person examinations of the Veteran and review of the claims file and medical records. The Board places great probative weight on these competent medical opinions concerning the Veteran’s capability, and they are not directly contradicted by any other medical opinions of record. The June 2019 VA examiner considered all of the Veteran’s reported and observed symptoms, but did not find that there it would prevent her from any sedentary activities. The Veteran’s own reports indicate that she had to stop working in her job as a housekeeping due to leg pain, but she has not discussed why she would not be able to perform any other employment which did not require so much time standing or using stairs. Again, the Board highlights that no medical professional has advised the Veteran that she needed to decrease her work hours or determined that she was unable to engage in gainful employment solely due to her service-connected disabilities. While the Veteran’s bilateral leg conditions do make all activities more difficult for her, the majority of the probative medical evidence indicates that bilateral varicose veins with lipodermatosclerosis alone do not prevent her from all forms of gainful employment. In sum, the most probative evidence shows that the combined impact of the Veteran’s service-connected right and left leg varicose veins with lipodermatosclerosis do not preclude all forms of gainful employment. As the evidence preponderates against showing that the Veteran is unemployable as a result of her service-connected disabilities alone, the Veteran is not entitled to a TDIU. The appeal is denied. In reaching the above conclusion, the Board has again considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.