Citation Nr: 18154158
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 18-48 621
DATE:	November 29, 2018
ORDER
Entitlement to a rating in excess of 40 percent for varicose veins of the right calf is denied.
Entitlement to an initial rating in excess of 10 percent for recurring cellulitis of the right leg is denied.
FINDINGS OF FACT
1. The Veteran’s varicose veins of the right calf is manifested by symptoms of vein insufficiency; persistent edema; faint diffuse erythema of the right lower leg; persistent stasis pigmentation and fatigue in the right leg after prolonged walking.  There is no evidence of persistent ulceration or massive board-like edema.
2. The Veteran’s cellulitis of the right leg is manifested by symptoms of intermittent cellulitis over the right lower leg treatable with oral antibiotics for less than 6 weeks. There is no evidence that the cellulitis affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas. There is no evidence that the Veteran was treated with systemic therapy for 6 weeks or more.  
CONCLUSIONS OF LAW
1. The criteria for entitlement to a rating in excess of 40 percent for varicose veins of the right calf have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 7120.
2. The criteria for entitlement to an initial rating in excess of 10 percent for recurring cellulitis of the right leg have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7820-7806.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1952 to September 1954.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 
Increased Rating
1. Entitlement to a rating in excess of 40 percent for varicose veins of the right calf
The Veteran contends, without specificity, that he is entitled to a 100 percent rating for his service-connected varicose veins.  See June 2017 Notice of Disagreement.  For the reasons explained below, the Board finds that a rating in excess of 40 percent is not warranted.  
The Veteran’s varicose veins are rated as 40 percent disabling under Diagnostic Code 7120.  A 40 percent rating is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is assigned for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120.
In order for the Veteran to be eligible for a rating in excess of 40 percent, there be evidence of persistent ulceration or massive board-like edema.  There is no evidence that the Veteran has either.  
Private treatment records from Marshfield Clinic indicate that the Veteran underwent an ultrasound test on both of his legs in October 2016 which revealed insufficiency of veins in both legs, more severe in the right.  The treating physician noted that the insufficiency was the cause of the Veteran’s leg swelling.  The ultrasound was negative for deep vein thrombosis (DVT).  
July 2015 and September 2016 VA health screening notes indicates no evidence of ulcerations.
The Veteran was afforded a VA artery and vein examination in January 2017 where he reported continued swelling of the right lower leg.  He reported wearing compression stockings daily; taking diuretic medication daily and elevating his leg while resting.  The examiner noted that there were mild chronic skin changes, for which the Veteran uses lotion to treat.  He denied any pain associated with the swelling.  The examiner noted that the Veteran had persistent stasis pigmentation and persistent edema that was incompletely relieved by elevation of the extremity.  The examiner also noted that the Veteran had mild stasis changes (browning of the skin).
During the course of the appeal, the Veteran was moved to a nursing home facility and was unable to travel to a Compensation VA examination due to his severe symptoms of dementia.  A staff nurse at the nursing home coordinated with the compensation examiner in August 2018 to provide the current severity of the Veteran’s varicose veins.  The VA examiner noted that the nurse’s “questions increased pain with standing, based on non-verbal reaction.”  The Veteran was noted to have fatigue in leg after prolonged standing; symptoms relieved by compression hosiery; persistent stasis pigmentation and edema.  There was a report of varicosity over the anterior leg; negative tenderness with associated stasis changes; and brown pigmentation changes of the skin.  
The Veteran was able to attend a VA artery and vein examination in October 2018 where he endorsed symptoms of aching in leg after prolonged standing and walking; fatigue in left after prolonged standing and walking and symptoms relieved by compression hosiery.  The examiner also noted evidence of stasis pigmentation.
Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent for his varicose veins.  The Board credits the private treatment records which document persistent edema and stasis.  The Board further credits the VA examinations reports which corroborate similar symptomatology.  The Board however notes that none of the examiners, neither private nor VA employed, indicated that the Veteran had ulcerations or massive board-like edema.  The Veteran has never endorsed these symptoms at any point during the period on appeal.  As noted above, evidence of ulcerations or massive board-like edema is necessary for any rating in excess of 40 percent. Since the preponderance of the evidence shows that there is no evidence of either, the Board denies the Veteran’s claim for a rating in excess of 40 percent.  
2. Entitlement to an initial rating in excess of 10 percent for recurring cellulitis of the right leg
The Veteran contends, without specificity, that he is entitled to a 100 percent rating for his service-connected cellulitis of the right leg.  See June 2017 Notice of Disagreement.  For the reasons explained below, the Board finds that a rating in excess of 10 percent is not warranted.  
The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. Although there is no specific effective date provided for ratings issued under the new criteria, there is no specification on whether the regulations are retroactive. Therefore, the new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (2018).  The Veteran’s application was received by VA before the August 2018 effective date for the revised skin regulations; however, the Board finds that since the new regulation is not more favorable to the Veteran, it will consider the Veteran’s claim under the regulations in effect at the filing of his claim. 
The Board notes that Diagnostic Code 7820 for infections of the skin not listed elsewhere instructs the rater to rate the disability as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7820. The Veteran is rated for his cellulitis under Diagnostic Code 7820-7806.  
Under Diagnostic Code 7806, dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas or; requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period warrants a 60 percent rating. 38 C.F.R. § 4.118, DC 7806. 
Dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating.  Id.
Dermatitis or eczema affecting at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent rating.  Id.
Private treatment records from Marshfield Clinic indicate that the Veteran was treated for right leg cellulitis in August 2016 and has had similar episodes in the past.  He was treated successfully with Doxycycline, an oral medication for infections, taken twice daily for 10 days.  There is also evidence that he was previously unsuccessfully treated with Cephalexin, another oral medication for infections. 
The Veteran was afforded a VA skin diseases examination in January 2017 where the examiner noted the Veteran’s diagnosis of cellulitis.  The Veteran reported multiple bouts of cellulitis over the right lower leg that usually responds well to a course of oral antibiotics. He denied any current skin infection.  The examiner noted that the Veteran did not have any skin condition which caused scarring.  The examiner also noted that the Veteran had been treated with oral medications for a duration of less than 6 weeks.  The examiner noted that the Veteran did not have any current skin condition at the time of the examination. 
During the course of the appeal, the Veteran was moved to a nursing home facility and was unable to travel to a Compensation VA examination due to his severe symptoms of dementia.  A staff nurse at the nursing home coordinated with the compensation examiner in August 2018 to provide the current severity of the Veteran’s cellulitis.  The staff reported that the Veteran was not under any treatment for his cellulitis.  She observed that the Veteran had a red raised area on his right thigh.
The Veteran was able to attend a VA artery and vein examination in October 2018 where the examiner noted that the Veteran had resolved cellulitis at the time of the examination.  The Veteran denied any medication treatment in the previous 12 months for his cellulitis.  The examiner noted that the Veteran’s cellulitis was not active at the time.  
Based on the foregoing, the Board finds that a rating in excess of 10 percent for cellulitis is not warranted.  In that regard, although the Veteran was treated for cellulitis in 2016, the evidence indicates that his cellulitis resolved after a 10-day treatment regimen and has not resurfaced since then.  The Board credits the private treatment records which indicate that the Veteran was treated with oral antibiotics (intermittent systemic therapy) for 10 days.  The Board further credits the subsequent VA examinations and the Veteran’s lay statements which indicate that the Veteran has not experienced symptoms of cellulitis since 2016.  A 10 percent rating is warranted for intermittent systemic therapy.  The Veteran’s current 10 percent rating is reflective of his intermittent oral treatment of his cellulitis for a period of 10 days.  In order to be entitled to a 30 percent rating, the next higher rating, there must be evidence of systemic therapy for a total duration of 6 weeks or more or evidence of cellulitis on 20 to 40 percent of the entire body or exposed areas affected.  Such evidence is not present in this case.  In fact, as noted above, the preponderance of the evidence shows the Veteran has not experienced active symptoms of cellulitis since 2016.  Nonetheless, the Board will not disturb the current rating.  
The Board has considered other diagnostic codes and finds that the preponderance of the evidence substantiates that the Veteran is not entitled to a higher rating under any other codes not already discussed.
 
MICHAEL A PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Baskerville 

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