Citation Nr: 1760305
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 14-20 928 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
Entitlement to restoration of a 20 percent rating for varicose veins, left leg.
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
A. Keninger, Associate Counsel
The Veteran served on active duty from May 1958 to April 1961.
This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
A Statement of the Case (SOC), issued by the RO in May 2014, upheld the reduction from 20 percent to 10 percent for the Veteran’s left leg varicose veins.
The Veteran testified at a videoconference hearing before the undersigned Veteran’s Law Judge in September 2017. A transcript of the hearing was prepared and associated with the claims file.
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).
FINDINGS OF FACT
The preponderance of the evidence indicates there has not been actual improvement in the Veteran’s service-connected left leg varicose veins under the ordinary conditions of life and work.
CONCLUSION OF LAW
The criteria for restoration of a 20 percent rating for varicose veins, left leg, as of October 1, 2012, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.105(e), 3.344, 4.104, Diagnostic Code 7120 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
In a July 2009 rating decision, the RO granted service connection for varicose veins, left leg, at a 20 percent rate based on June 2009 and January 2011 VA examinations. In April 2012, the RO informed the Veteran of its intent to reduce his rating for varicose veins, left leg, from 20 percent to 10 percent based on findings from a January 2012 examination that noted no edema in the Veteran’s left leg. The Veteran indicated disagreement with this proposed decrease in a June 2012 statement, but the RO decreased the Veteran’s rating to 10 percent for varicose veins, left leg, in a July 2012 rating decision.
The Board has reviewed the Veteran’s VA examinations of record, which show that the Veteran has consistently reported that his leg will swell throughout the day and feel “tight” with prolonged standing or sitting. The Veteran wears compression hosiery and has multiple superficial varicosities and a decrease in sensation in his left leg. No edema was noted in June 2009, however, in January 2011, VA examiners indicated edema was present and persistent, and the Veteran began to report pain, numbness, and a heavy feeling in his legs, especially after prolonged sitting or standing.
The Veteran attended another VA examination in January 2012, and that examiner noted aching and fatigue in the Veteran’s left leg after prolonged standing and walking, visible varicose veins, and the continued use of compression hosiery; however, the examiner did not indicate the Veteran had edema. As a result, the Veteran’s rating was reduced to 10 percent.
At a September 2017 videoconfernce hearing, the Veteran competently and credibly reported that his left leg varicose vein disability has not improved. He indicated that his treating physician and specialist have not indicated improvement, though he does continue to take steps to manage his symptoms by using compression hosiery, wearing orthotic shoes with special insoles, elevating his legs, and taking breaks to relieve numbness and pain. The Veteran testified that he chose to wear cotton socks to the hearing rather than his compression hosiery, in part so that his symptoms could be seen without treatment but also because the compression hosiery is difficult to put on. The Veteran testified that he consistently has edema, even when wearing the compression hosiery, though he noted that the compression hosiery does provide some relief. The Veteran continued to report difficulty walking or standing and noted he frequently has to elevate his feet to help with blood flow to his feet. The Veteran testified that he drove himself to the hearing today, but he had to stop because his feet get numb after sitting in one position for an extended period of time. The Veteran also noted that he was able to stand for the approximately five minutes he had to wait for his hearing to begin, but he did utilize the wall for support, which the Veteran’s representative confirmed. Additionally, the Veteran noted that had additional waiting been required, he would have needed to request a chair due to pain in his legs. Finally, the Veteran reported that his regular doctor had prescribed a handicap parking tag as walking more than 250 feet was difficult.
Under the provisions of 38 C.F.R. § 3.444, which addresses when evaluations may be reduced, the Board must consider whether the facts actually reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Here, the Board cannot make such a finding. When the RO implemented the reduction, it was based solely on one examination in January 2012, which showed no edema. As noted above, the Veteran competently and credibly testified that his symptoms have not improved in recent years, despite the notation of no edema at his January 2012 examination, and the Veteran testified that he does still have edema on a persistent basis, though it is somewhat relieved by regular use of compression hosiery. The Board finds the Veteran’s testimony of his symptoms is consistent with his actions and appearance at his videoconference hearing.
The Board is unable to conclude that the Veteran’s service-connected varicose veins, left leg, has improved since the June 2009 and January 2011 VA examinations that established a 20 percent rating. Accordingly, the criteria for a reduction of a 20 percent rating to a 10 percent rating for varicose veins, left leg, have not been met. 38 C.F.R. §§ 3.102, 3.344. The 20 percent rating for varicose veins, left leg, is restored.
The 20 percent rating for varicose veins, left leg, as of October 1, 2012, is restored.
A. P. SIMPSON
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs