Citation Nr: 22014070 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 13-01 982 DATE: March 11, 2022 ORDER Entitlement to an initial 50 percent rating for varicose veins of the left lower extremity (LLE) on an extraschedular basis from February 3, 2009 to January 29, 2014 is granted. Entitlement to a rating in excess of 30 percent for varicose veins of the LLE on an extraschedular basis from January 30, 2014 to September 16, 2014 is denied. Entitlement to an initial rating in excess of 50 percent for varicose veins of the LLE on an extraschedular basis beginning September 17, 2014 is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to September 30, 2014 is denied. Entitlement to TDIU beginning December 2, 2016 is denied. FINDINGS OF FACT 1. Prior to January 30, 2014, the Veteran's LLE varicose veins manifested in symptoms not contemplated by the schedular criteria and resulted in marked interference with employment. 2. Beginning January 30, 2014, the Veteran's LLE varicose veins have not been shown to be so exceptional or unusual, with such related factors as marked interference with employment or repeated hospitalization, to warrant the assignment of higher ratings on an extraschedular basis. 3. The evidence is insufficient to establish that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 50 percent rating for varicose veins of the LLE from February 3, 2009 to January 29, 2014 have been met, on an extraschedular basis. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.22, 4.104, Diagnostic Code 7120 (2021). 2. The criteria for entitlement to an extraschedular rating in excess of 30 percent for varicose veins of the LLE from January 30, 2014 to September 16, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.104, Diagnostic Code 7120 (2021). 3. The criteria for entitlement to an extraschedular rating in excess of 50 percent for varicose veins of the LLE beginning September 17, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.104, Diagnostic Code 7120 (2021), 7121 (86 Fed. Reg. 54095 (Sept. 30, 2021)). 4. The criteria for entitlement to TDIU prior to September 30, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 5. The criteria for entitlement to TDIU beginning December 2, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 in November 2021. 1. Entitlement to increased ratings for LLE varicose veins 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 and cellulitis. 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 reported that his related cellulitis infections were treated 5 times in the emergency room, but he had not been hospitalized for cellulitis. 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 that 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. He 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 a January 30, 2014 VA treatment record, the Veteran noted that he now "owns a bar so on his feet more." In June 2014 correspondence, the Veteran reported visiting the emergency room in July 2010 for a cellulitis infection. In September 2014 VA treatment notes, the examiner noted persistent edema, subcutaneous induration, stasis pigmentation, and persistent ulceration. At his 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. In May 2015 VA treatment records, the Veteran visited urgent care for his left leg cellulitis. The Veteran was diagnosed with mild cellulitis and was treated with oral antibiotics. 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 Veteran reported his last episode of cellulitis was 2 months prior, but the Veteran had not been hospitalized for cellulitis. 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. In November 2016, the Veteran reported to the emergency department for recurrent cellulitis. The Veteran was discharged home on the same day. In December 2016 VA treatment notes, the Veteran reported he had 5 to 6 episodes of cellulitis. His most recent episode was 1 week prior. He had been admitted to the hospital, and he was currently on antibiotics. In July 2018 VA treatment notes, the Veteran was treated in the emergency department for recurrent cellulitis. He reported his last episode of cellulitis occurred four months prior. The Veteran had a November 2018 LLE ablation scheduled, but the procedure was cancelled due to cellulitis. March 2019 VA treatment records show the Veteran had just completed a 2-week regiment of antibiotics for his cellulitis. The Veteran had experienced dermatitis related to his venous condition. See March 2019 VA treatment records; October 2019 VA treatment records. In March 2021 VA treatment notes, the Veteran was treated in the emergency department for an ulcer with cellulitis. The Veteran was prescribed antibiotics. 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 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. The Board notes that the Veteran's December 2014 hearing transcript contains some suggestions of a prior inadequate examination, and the Board finds that this examination report, addressing key subjective complaints and objective symptoms, is fully adequate to address any asserted prior deficiencies. The Regional Office's (RO) December 2021 Administrative Review of the claims recommended denial of increased ratings under 38 C.F.R. § 3.321(b)(1). In January 2022, the Director of Compensation Service found that no extraschedular entitlements existed. They found that, on review of the record, there was no evidence that showed frequent hospitalization, or marked interference with work. The Director concluded that an increased extraschedular evaluation was not warranted. 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. Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step analysis for determining whether an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). First, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); see also Thun, supra. Second, if the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). See 38 C.F.R. § 3.321(b)(1). Third, there must be a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, supra. There is a justiciable standard limiting the Secretary of Veterans Affairs's discretion for assignment of such a rating, namely that the extraschedular rating is commensurate with the average earning capacity impairment due exclusively to service-connected disability or disabilities. Kuppamala, supra. Further, the Rating Schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Now that the Board has determined the symptomatology and functional impairment of the Veteran's LLE varicose veins with associated cellulitis, the first question is whether the available schedular rating criteria was adequate to evaluate it. Thun, 22 Vet. App. at 115. The schedular criteria for varicose veins contemplates symptoms such as edema; aching and fatigue after prolonged standing or walking; stasis pigmentation or eczema; ulceration; subcutaneous induration; and constant pain at rest. 38 C.F.R. §§ 4.104, Diagnostic Code 7120 (2021), 7121 (86 Fed. Reg. 54095 (Sept. 30, 2021). The Veteran's symptoms, such as recurrent cellulitis, are not discussed in the rating criteria under Diagnostic Codes 7120 (2021) and 7121 (86 Fed. Reg. 54095 (Sept. 30, 2021). To the extent that the Veteran's extensive medical records additional symptoms not already compensated for under the current diagnostic criteria, the first prong of Thun is met. The Board will next address the second prong of Thun. In numerous statements, the Veteran asserted that his varicose veins of the LLE is productive of marked interference with his employment. In the July 2011 TDIU application, the Veteran reported he last worked full-time in 2002. In the October 2011 VA PTSD examination, the Veteran reported that he had been employed as a bartender for many years, and he had been at his present position for approximately 5 years. And until 2010, the Veteran had worked 4-5 days per week. However, due to his varicose veins and cellulitis, he began to work intermittently, and eventually was only working one night per week. He had not worked in the 2 months preceding the examination. In the November 2011 addendum opinion, the examiner noted that the Veteran stated he would be able to work if he could locate a sedentary, sitting-down job. In the January 2013 VA Form 9, the Veteran reported that he had to quit his job as a bartender a year prior because he could not stand for over six hours. In February 2013 VA treatment records, the Veteran reported he no longer worked a bartender, and he worked part-time at a cleaner. Regarding marked interference with employment, the Court has defined "marked interference" as "a loss of earning capacity that is less severe than one where the veteran is totally unemployable." Thun, 22 Vet. App. at 117. Accordingly, extraschedular consideration cannot be denied simply because the evidence does not establish the inability to obtain or retain employments opposed to entitlement to TDIU. Id. The lay and medical evidence showed that the Veteran's symptoms would cause marked interference with employment, particularly work as a bartender, during a portion of the appeal period. The third prong of Thun has also been satisfied because the Board referred the matter to the Director of Compensation and Pension Service. In September January 2022, the Director denied an extraschedular rating. In light of the above, the Board finds that the Veteran's varicose veins present an exceptional or unusual disability picture because they are productive of marked interference with employment, rendering impractical the application of the regular schedular standards. The Board finds that the symptoms accounted for here equate to a 60 percent rating for LLE varicose veins prior to January 30, 2014, minus the 10 percent rating for the pre-existing condition. 38 C.F.R. § 4.22. Based on the lay and medical evidence, the Board concludes that the Veteran's LLE varicose veins warrant a total 50 percent rating prior to January 30, 2014 (60 percent extraschedular rating minus 10 percent for pre-existing condition); and, to this extent only, the appeal is granted. Beginning January 30, 2014, the Board cannot find the Veteran's varicose veins manifested in marked interference with employment or frequent hospitalizations. In January 2014, the Veteran reported he owned a bar room, so he was on his feet more. In an August 2016 mental health note, the Veteran reported new stress with his business since his business manager quit. The Board recognizes that due to his varicose veins and cellulitis, the Veteran's ability to work in any career which requires prolonged walking and standing would be greatly hindered. However, the evidence of record shows the Veteran maintaining his own business from January 2014 through August 2016. There is no evidence showing the Veteran has not been able to maintain owning his bar since August 2016. The Veteran did not provide evidence showing how his varicose veins would interfere with him running his business. The evidence does not show the Veteran is required to stand for long periods of time now that he owner of a business and no longer a bartender. Based upon the evidence, the Veteran's varicose veins symptoms not contemplated by the rating criteria do not result in marked interference with employment. The Board finds the evidence the evidence is also against finding the Veteran's LLE varicose veins symptoms caused frequent periods of hospitalizations. There is no probative evidence of frequent periods of hospitalizations related to the Veteran's cellulitis symptoms. Although the Veteran has consistently received treatment for cellulitis, to include visits to the emergency department and urgent care, there is no evidence the Veteran was hospitalized. The Veteran reported being hospitalized one month prior in December 2016 VA treatment notes; however, emergency department notes from November 2016 show the Veteran was not hospitalized and was discharged home the same day. Therefore, the Board finds there is no probative evidence of frequent hospitalizations due to the LLE varicose veins and associated cellulitis. Based on the analysis above, the Board must find that the evidence is not in approximate balance and that the evidence persuasively favors finding that the criteria for extraschedular ratings for LLE varicose veins beginning January 30, 2014 have not been met. Accordingly, the benefit-of-the-doubt doctrine does not apply, and the increased rating claims for that period. 38 U.S.C. § 5107(b). 2. Entitlement to TDIU VA will grant TDIU when the evidence shows that a veteran is precluded from securing or following any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the June 2009 VA PTSD examination, the Veteran reported he worked as a seasonal sailing instructor, but he currently worked 2-3 hours every two weeks at his neighbor's cleaner. In November 2010 VA treatment notes, the Veteran reported working as a bartender. In the July 2011 TDIU application, the Veteran reported that he had completed 4 years of college, and he worked as a junior college professor in the past. For the most recent occupational history, the Veteran only listed that he worked as part-time as a driver since 2006. The Board notes the entitlement to TDIU from September 30, 2014 to December 1, 2016 is not before the Board, as the Veteran was already in receipt of a 100 percent (now reduced to 20 percent) rating for prostate cancer and special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) during that time period. The remaining time periods, however, remain on appeal as regards TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). During the October 2011 VA PTSD examination, the Veteran reported that he had been employed as a bartender for many years, and he had been at his present position for approximately 5 years. Until 2010, the Veteran had worked 4-5 days per week. However, due to his varicose veins and cellulitis, he began to work intermittently, and eventually was only working one night per week. He had not worked in the 2 months preceding the examination. In the November 2011 addendum opinion, the examiner noted the Veteran stated he would be able to work if he could locate a sedentary, sitting-down job. In the January 2013 VA Form 9, the Veteran reported that he had to quit his job as a bartender a year prior because he could not stand for 6+ hours. In February 2013 VA treatment records, the Veteran reported he no longer worked a bartender, and he worked part-time at a cleaner. In January 2014, the Veteran reported he owned a bar room, so he was on his feet more. In an August 2016 mental health note, the Veteran reported new stress with his business since his business manager quit. In October 2018, the Board assumed jurisdiction over the Veteran's TDIU claim in associated with the underlying increased rating claims in accordance with Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). The Board noted the Veteran's medical and lay evidence provided inconsistent occupational histories. Therefore, the claim was remanded, in part, to provide the Veteran notice as to the steps necessary to substantiate a claim for TDIU, and provide an opportunity to submit an updated VA Form 21-8940. In October 2019, the RO provided the Veteran with the notice required in accordance with the remand directives. See Stegall v. West, 11 Vet. App. 270-71 (1998). In response to additional remands, the RO also sent notices to the Veteran in order to substantiate the TDIU claim in April 2020 and August 2020. To date, the Veteran has not submitted any new evidence, to include the requested VA Form 21-8940. Prior to September 16, 2014, the Veteran met the schedular criteria for consideration of TDIU. However, upon review of the record, the Board finds that the evidence persuasively favors a finding that the criteria for TDIU have not been met. To date, the Veteran has not completed a VA Form 21-8940 with the relevant occupational history of the Veteran properly reported. While failure to complete the form is not fatal to a TDIU claim in and of itself, the absence of such a completed application deprives the Board of information pertinent to the Veteran's employment history, educational history, and income information necessary to address a claim for TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Beginning January 30, 2014, the Veteran reported owning a bar room. The Veteran's non-completion of the VA Form 21-8940s leaves the Board without the ability to request relevant information such as the level of income the Veteran is able to make as the owner of the bar. The Board does not know the hours the Veteran works while owning the bar. The Board lacks information to find that the Veteran's ownership of a bar does not constitute substantially gainful employment. In sum, the Board concludes that there is insufficient evidence to find that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The medical evidence shows he runs, or has run during the recent pendency of this appeal, his own bar, and he did not complete the VA Form 21-8940. Although this business venture could potentially fail to meet the standard of substantially gainful employment, he has not provided the evidence requested. Accordingly, the criteria for TDIU have not been met, and the claim for TDIU must be denied. See Wood, 1 Vet. App. at 193. 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.