BVA9504984 DOCKET NO. 91-46 155 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for bilateral varicose veins, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from November 1945 to December 1947. This matter came to the Board of Veterans' Appeals (Board) originally on appeal from a November 1990 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim seeking an increased disability evaluation for his service-connected bilateral varicose veins, then rated as 20 percent disabling. The veteran appealed and, following the receipt of additional medical evidence, an increased rating of 50 percent was assigned, effective in March 1990. On his behalf, the service representative expressed disagreement with that rating. In October 1992, the Board remanded the case to the RO for additional development. The case is once again before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in effect, that the 50 percent disability evaluation currently assigned for his service-connected bilateral varicose veins is inadequate to compensate the veteran for the problems that he is experiencing with his lower extremities. Essentially, the veteran maintains that he suffers from persistent pain and swelling in his legs, exacerbated by prolonged periods of sitting, as well as poor circulation, and, therefore, an increased disability evaluation is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record supports the veteran's claim for an increased evaluation of 60 percent, and no more, for bilateral varicose veins. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's bilateral varicose veins are primarily manifested by complaints of persistent pain and swelling, poor circulation, recurring cramps in the right thigh and both calves, extreme paresthesia in the right leg with postphlebitic syndrome, paresthesia in the left leg and bilateral peripheral vascular disease. 3. The veteran's bilateral varicose veins are productive of pronounced functional impairment, with secondary involvement of the deep circulation. CONCLUSION OF LAW The criteria for a 60 percent evaluation, and no more, for bilateral varicose veins have been met. 38 U.S.C.A. §§ 1155, 5107, (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.102 and Part 4, Diagnostic Code 7120 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds initially that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed and that appellate review of the claim can proceed at the present time. As a preliminary matter, the Board acknowledges that the accredited representative has pointed out that further examination may be required prior to final appellate consideration because the VA examiners did not comment specifically on whether there was involvement of the deep circulation. However, there are sufficient findings recorded so that the Board can concede that such exists. Moreover, because the Board is granting the benefit sought on appeal, the veteran's claim has not been prejudiced by not requesting additional VA examination prior to appellate review. Therefore, no further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a). In evaluating the veteran's request for an increased evaluation, it is essential to the evaluation that the veteran's disability be viewed in relation to its entire history. 38 C.F.R. § 4.1. Service connection for bilateral varicose veins has been in effect since February 1969, when a 10 percent evaluation was assigned to the veteran's disability. This was done under the provisions of Diagnostic Code 7120 of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The rating was based primarily on the veteran's service medical records and the report of a February 1968 examination. A review of the service medical records reflects that while on active duty in March 1947, the veteran was seen for varicosities of the left popliteal space. Physical examination in August 1947, revealed varicose veins in the popliteal space of the right leg. On that occasion, the veteran was provided an ACE bandage. He was thereafter seen in October 1947 at which time examination revealed small varicose veins for which no treatment was indicated. The report of a separation examination, dated in December 1947, was negative regarding the presence of varicose veins of either extremity. On VA peripheral vascular examination in February 1968, the veteran complained of chronic pain and swelling, exacerbated by prolonged periods of standing or walking. Physical evaluation of the lower extremities revealed moderate varicosities of the right lower extremity between the knee and ankle and in the popliteal space. There was no tortuosity except those in the right popliteal space which were approximately 2 and 1/2 inches in length. The varicosities of the left leg were small without tortuosity or sacculation. There was no dermatitis, ulceration or swelling. The pedal circulation was normal. Perthes' and Trendelenburg's tests were positive, showing the patency of deep veins. The diagnosis was varicose veins of the lower extremities. Thereafter, the veteran's bilateral varicose veins were not reevaluated until October 1974. On that occasion, VA examination revealed small areas of pigmentation of the right lower extremity. Moderate tortuous varicosities were noted between the knees and ankles of the right leg with a plexus of large varicose veins of the right popliteal fossa. There were small varicosities of the left leg between the knee and ankle which were tortuous. Perthes' and Trendelenburg's tests were positive showing the patency of the deep collateral venous circulation and the incompetency of the valves of the superficial veins. Arterial pulsations were decreased of both lower extremities but adequate. Based on these findings, the RO, by a rating decision dated in January 1976, increased the veteran's disability evaluation for his bilateral varicose veins from 10 percent to 20 percent disabling. On VA examination in May 1991, data recorded for clinical purposes indicated that the veteran suffered from poor circulation and numbness in both legs, as well as cramping of the muscles in the calves after walking for two blocks. Physical evaluation revealed bilateral saphenous varicosities extending to the groin, more prominent in the right leg. There were poor popliteal and impalpable dorsalis pedis pulses, bilaterally. The relevant diagnosis was severe bilateral saphenous varicosities. The disability evaluation for the veteran's bilateral varicose veins was increased to 50 percent disabling, effective March 9, 1990. In accord with the Board's remand request, the veteran was examined by the VA in December 1992. On that occasion, he reported that he was experiencing progressively more difficulty with his varicose vein disorder. His legs ached when he stood or walked; he had a numb feeling in the legs when they swelled; and his feet felt hot. On physical examination, there were large tortuous varices over the popliteal area and down the posterior aspect of the right lower leg. There were palpable dilated veins at the posterior aspect of the right thigh. The left leg had moderate varices on the posterior calf. Skin appearance and temperature was normal and there was no paresthesia. The diagnosis was bilateral saphenous varicosities, severe in the right leg. The veteran was again examined by the VA in February 1993. He then complained that he had pain and swelling of both legs, worse on the right, extending to the bottom of the foot. The right leg was approximately twice the diameter of the left. The dorsalis pedis pulses were barely palpable, bilaterally. The skin was described as being thin and shiny. The right leg was cooler than the left. There was reported to be extreme paresthesia of the right leg, as well as some paresthesia of the left leg. he diagnoses were: bilateral varicose veins with post phlebitic syndrome, right leg; and peripheral vascular disease, both lower legs. Also of record are the results of testing for lower extremity arterial disease, conducted by the VA on an outpatient basis later in February 1993. In evaluating the veteran's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board notes that a 50 percent evaluation requires severe bilateral varicose veins involving the superficial veins above and below the knees with involvement of the long saphenous veins, varicosities ranging over 2 centimeters in diameter, marked distortion and sacculation, edema and episodes of ulceration, but with no involvement of the deep circulation. A 60 percent evaluation requires pronounced bilateral varicose veins with the findings of the severe condition described above and additional secondary involvement of the deep circulation, as demonstrated by Perthes' and Trendelenburg's tests, with ulceration and pigmentation. 38 C.F.R. § 4.104 and Part 4, Code 7120. With severe varicose veins, tests to determine impairment of the deep circulation are essential, as the superficial varicosities may be caused by the impairment of deep return circulation, or there may be phlebitis as a complication of varicose ulcers. With phlebitis or impairment of deep return circulation, the appropriate higher rating should be applied. 38 C.F.R. § 4.102. On the basis of the medical evidence discussed above, as well as the veteran's subjective complaints of pain, the Board finds that his bilateral varicose veins are best evaluated as 60 percent disabling. In this regard, the Board notes that physical examinations have revealed marked varicose veins in both extremities, more severe on the right. Moreover, on recent VA examination, it was indicated that the right leg was approximately twice the diameter of the left leg. The dorsalis pedis pulses were barely palpable bilaterally. The skin of the lower extremities was thin and shiny. The right leg was cooler than the left leg. Paresthesia was extreme in the right leg with some paresthesia in the left leg. The diagnosis was bilateral varicose veins with postphlebitic syndrome of the right leg. In determining the most appropriate rating for the veteran's bilateral varicose veins, the Board has considered 38 C.F.R. § 4.7, which provides that, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. While the current clinical data fail to reveal the presence of ulceration and pigmentation in either of the veteran's lower extremities, the Board believes that the above findings, including involvement of the deep circulation and the presence of post phlebitic syndrome of one leg, more nearly approximate the criteria required for a rating of 60 percent than for the current disability evaluation of 50 percent. Granting the veteran the benefit of any doubt, the Board concludes that the veteran's varicose vein disorder is most appropriately characterized as "pronounced" in view of the above findings. Accordingly, an evaluation of 60 percent will be assigned. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.102 and Part 4, Diagnostic Code 7120. A 60 percent rating is the maximum schedular evaluation provided for bilateral varicose veins. Implicit in our findings that the symptoms shown more nearly meet the criteria for a 60 percent rating, rather than a 50 percent rating, is the finding that there is no basis for assignment of a rating higher than 60 percent on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). Nor does the evidence suggest in any way that the schedular rating would be inadequate; the disability picture is not so unusual or exceptional as to warrant extraschedular consideration. The Board has also considered the provisions of Diagnostic Code 7121 which relates to unilateral phlebitis or thrombophlebitis with obliteration of deep return circulation. The record reflects that the veteran has postphleblitis syndrome of the right extremity. A 30 percent disability evaluation would require persistent swelling of the leg and thigh, increased on standing or walking 1 or 2 hours, readily relieved by recumbency; moderate discoloration, pigmentation and cyanosis. 38 C.F.R. § 4.104, Diagnostic Code 7121. While the veteran has complained of recurrent swelling of the right lower extremity, and the right leg was described at the time of the examination as being twice the diameter of the left, moderate discoloration, pigmentation and cyanosis are not shown. We are persuaded by a review of the recent VA examinations, that evaluating the veteran's postphlebitis syndrome of the right lower extremity under Diagnostic Code 7121 would not result in the assignment of a higher overall disability rating for the bilateral condition. ORDER An increased evaluation of 60 percent for bilateral varicose veins is granted, subject to the controlling criteria applicable to the payment of monetary awards. N. R. ROBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.