Citation Nr: 1761192
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 15-16 936 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
1. Entitlement to service connection for varicose veins of the right leg.
2. Entitlement to service connection for a heart disorder, to include as secondary to the service-connected varicose veins of the legs.
3. Entitlement to a disability rating in excess of 10 percent for varicose veins of the left leg.
4. Entitlement to a total disability rating based upon individual unemployability (TDIU).
ATTORNEY FOR THE BOARD
J. Smith, Counsel
The Veteran served on active duty from November 1950 to April 1955 in the United States Army. He was awarded the Combat Infantry Badge.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico.
In June 2017, the Board remanded the above claims for further development.
The record shows that the Veteran spells the second part of his last name as captioned on the title page. This spelling is consistent with the DD Form 214, service treatment records, and the Veteran’s own printed name and signature. However, the VA Master Record spells this part of the last name differently. The AOJ should take appropriate action to confirm the correct spelling, and if necessary, change the name in the Master Record.
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) (West 2012).
The issues of entitlement to service connection for a heart disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The Veteran’s varicose veins of the right leg are related to active military service.
2. The Veteran’s varicose veins of the left leg are not manifested by persistent edema incompletely relieved by elevation of the extremity.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for varicose veins of the right leg have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
2. The criteria for a rating in excess of 10 percent for varicose veins of the left leg are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In reaching the decisions below, the Board considered the Veteran’s claims and decided entitlement based on the evidence. The Veteran has not raised any other issue, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
Service Connection Claim
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
The Veteran has a current varicose veins of the right leg, documented on VA examinations in October 2014 and August 2017.
Service treatment records show that in May 1953, the Veteran sought treatment for pain in his legs with prolonged marching or standing. He was diagnosed with varicose veins in both legs. The examination revealed that the left leg varicose veins were large enough to disqualify him for reenlistment. The Veteran subsequently went surgical excision on the left leg, and was able to reenlist and continue his military service.
On VA examination in October 2014, the examiner diagnosed bilateral varicose veins but did not provide an opinion on the etiology of the condition.
On VA examination in August 2017, the VA examiner provided a lengthy opinion. She provided a summary the May 1953 diagnosis of bilateral varicose veins and subsequent surgical treatment of the left leg varicose veins. Based on the service treatment records and post-service records, she opined that the current varicose veins of the right leg were at least as likely as not related to the May 1953 diagnosis. She additionally provided discussion at length on whether military service aggravated the right leg varicose veins, finding that it did not.
The August 2017 positive nexus opinion constitutes the entirety of the evidence on the etiology of the Veteran’s right leg varicose veins; there is no evidence to the contrary of this opinion. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for his varicose veins of the right leg. While the examiner did not find that the right leg varicose veins were aggravated by service, she found, and restated several times, that the current condition was related to the May 1953 documentation of varicose veins.
The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The August 2017 report is adequate for the purposes of adjudication. The examiner based her conclusions on a review of the entire electronic claims file, including the symptomatology demonstrated in the service treatment records, and current symptomatology. The evidence is at least in equipoise in showing that the Veteran has right leg varicose veins that are attributable to service. In resolving all reasonable doubt in the Veteran’s favor, service connection is warranted.
Higher Rating Claim
Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.
If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.
Staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as described below, staged ratings are not warranted for the varicose veins of the left leg.
The Board has reviewed all of the evidence in the Veteran’s electronic files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.
In a November 1960 rating decision, service connection for varicose veins of the left leg was granted. The Veteran was assigned a noncompensable rating.
In the November 2014 rating decision on appeal, the rating was increased to 10 percent, effective June 26, 2014, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7120.
Diagnostic Code 7120 provides ratings for varicose veins. Ratings are provided under this code as follows: 0 percent disabling for asymptomatic palpable or visible varicose veins; 10 percent disabling for 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; 20 percent disabling for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema; 40 percent disabling for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; 60 percent disabling for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and 100 percent disabling for massive board-like edema with constant pain at rest.
In a June 2014 private medical record, a non-invasive vascular study revealed no evidence of deep or superficial vein thrombosis. There was moderate and severe deep venous insufficiency in the left leg.
In a July 2014 VA treatment record, there were prominent varicose veins bilaterally, but more noticeably on the right leg. There was no evidence of necrosis. There were no ulcers.
In a July 2014 private treatment record, an arterial evaluation of the lower extremities revealed an essentially normal study without evidence of hemodynamically significant stenosis or insufficiency of the lower extremities’ arterial system bilaterally. There was no evidence of an aneurysm in the iliac or popliteal arteries bilaterally.
On VA examination in October 2014, the Veteran reported severe pain in the extremities. On examination, the examiner noted aching and fatigue in the leg with prolonged standing and walking. The symptoms were relieved by elevation of the extremity. There was persistent stasis pigmentation, intermittent edema, and constant pain at rest. There were no other pertinent physical findings, complications, conditions, signs, or symptoms.
In a September 2015 VA treatment record, the Veteran’s varicose veins were assessed. There was no inflammation. Compressive stockings were recommended.
In August 2017, a VA examination was conducted but the examiner did not render findings sufficient for rating the varicose veins of the left leg under the applicable diagnostic criteria. Rather, the examiner primarily addressed the etiology of the right leg varicose veins.
The preponderance of the evidence is against the assignment of a rating higher than 10 percent. As noted, the next higher rating requires persistent edema incompletely relieved by elevation of the extremity. The October 2014 VA examiner found only intermittent edema, and determined that the Veteran’s symptoms were relieved by elevation of the extremity. There is no evidence to the contrary. There is also no evidence of persistent ulceration or massive board-like edema to support a rating higher than 20 percent. Because there is a specific Diagnostic Code for rating varicose veins, consideration of other codes for evaluating the disability is not appropriate. Copeland v. McDonald, 27 Vet. App. 333 (2015), (holding that when a condition is specifically listed in the schedule, it may not be rated by analogy.)
The VA examination report is adequate for adjudication. The examiner examined the Veteran and pertinent records, considered his history, and set forth objective findings necessary for adjudication. The Board has further considered the admissible and believable assertions of the Veteran. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the lay statements are not considered more persuasive than the objective medical findings which, as indicated, do not support a higher rating than that assigned by the RO.
For the foregoing reasons, the Board finds that the preponderance of the evidence is against the assignment of any higher rating or staged rating under the applicable rating criteria. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of a higher rating, the doctrine is not for application.
Service connection for varicose veins of the right leg is granted.
A disability rating in excess of 10 percent for varicose veins of the left leg is denied.
With regard to the claim for a heart disorder, the Veteran has current coronary artery disease. He reports that his heart disorder is secondary to his service-connected varicose veins. See, e.g., Informal Claim, Notice of Disagreement. A VA examination has not yet been provided to address this matter. While addressing the Veteran’s varicose veins, the August 2017 VA examiner provided some discussion in this regard, however, she did not provide a clear opinion on secondary service connection based on both causation and aggravation. See 38 C.F.R. § 3.310 (providing secondary service connection on the basis of either causation or aggravation by a service-connected disability.) Additionally, while his service treatment records do not document any complaints, diagnoses, or treatment pertaining to his heart, in June 2015, a private physician opined that the Veteran’s cardiovascular disorder was more likely than not related to military service, but without providing any supporting rationale. An opinion must also be provided addressing direct service connection.
The claim for a TDIU is intertwined with the service connection claim being remanded. A potential grant of service connection for the claim, and any statement made by the examiner on the impact of the disorder on employability pursuant to the applicable examination worksheet, would affect adjudication of the TDIU issue. Moreover, appellate adjudication of the TDIU claim must be deferred pending the RO’s implementation of the Board’s award of service connection above, including the assignment of a rating and effective date.
Accordingly, these claims are REMANDED for the following action:
(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Afford the Veteran a VA examination addressing the etiology of his heart disorder. All current heart disorders must be identified. A rationale must be provided for all conclusions reached.
The examiner must provide an opinion as to (i.) whether any current heart disorder began during active service or is related to any incident of service, and (ii.) whether any current heart disorder was (a) caused or (b) aggravated (chronically worsened) by the service-connected varicose veins of the bilateral legs.
In rendering the opinions, the examiner must consider the June 2015 private medical report attributing the Veteran’s current heart disorder to service.
2. Thereafter, readjudicate the claims, considering all evidence. If the benefits sought remain denied, the
Veteran and his representative should be provided a SSOC.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs