BVA9503506 DOCKET NO. 91-51 748 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for varicose veins of the right leg, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) from a May 1991 decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied the veteran's claim for an increased rating for varicose veins of his right leg, rated as 20 percent disabling. The Board remanded the case in May 1992, and in a June 1994 decision the RO continued to deny the claim. The file shows that the only issue properly before the Board at this time is entitlement to an increased rating for right leg varicose veins. The 1992 Board remand also referred additional issues to the RO. The June 1994 RO decision denied an application to reopen a previously denied claim for service connection for left leg varicose veins, and also denied secondary service connection for a right wrist disability. The RO notified the veteran of this action on June 30, 1994. Those issues are not before the Board at this time, as they are not addressed by a notice of disagreement, statement of the case, and substantive appeal. 38 U.S.C.A. § 7105 (West 1991). The veteran should understand that if he wants to appeal these issues, he must file a timely notice of disagreement at the RO by June 30, 1995 (i.e., within the year following notice of the adverse action). Id. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the varicose veins of his right leg are more severe than reflected by the current rating, and he has pain, swelling, and other symptoms from the disorder. 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 preponderance of the evidence is against the veteran's claim for an increased rating for varicose veins of his right leg. FINDING OF FACT Varicose veins of the veteran's right leg are no more than moderately severe in degree. CONCLUSION OF LAW Varicose veins of the right leg are no more than 20 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.104, Code 7120 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background Medical records from the veteran's 1969-1971 active duty show treatment for right leg varicose veins. Service connection and a 10 percent rating were established for the condition, effective from October 1979 when the veteran filed a claim for compensation. In April 1985 he was hospitalized and underwent surgery for right leg varicose veins; the operation consisted of superficial saphenous vein stripping with ligation of the two deep perforating branches. A temporary total convalescent rating was assigned from April to June 1985, and since then right leg varicose veins have been rated 20 percent. In March 1991 the veteran claimed an increased rating. When seen in a VA outpatient clinic in March 1991, the veteran complained of episodic pain, swelling, and numbness in his right leg of 6 months duration. On clinical evaluation, it was commented that he was in no acute distress and no difficulty was noted. There was slight swelling in his right leg without inflammation, and it was noted that he did not wear support hose. A post-surgical scar was evident, secondary to the vein stripping procedure. The diagnosis was swelling, secondary to varicose veins. It was recommended that he elevate his legs and wear support hose. At an April 1991 VA examination, the veteran complained that his right leg symptoms had progressively worsened since the 1985 surgery on his right leg. He said his ankle swelled, toes got numb, he had pain in his groin, and the veins were prominent in his lower leg. There were stasis changes in the area of a prior ulcer above the ankle (the ulcer had healed prior to the 1985 surgery), and the remainder of the lower half of his right lower leg showed rather extensive discoloring and stasis change. On physical examination, there were multiple scars from the groin to the medial ankle. There was minimal swelling, and no objective sensory change was noted. The diagnoses were status postoperative, greater saphenous vein stripping of the right leg, and secondary ulceration and stasis changes. The Board remanded the case in May 1992 for additional development, including a vascular examination on the severity of right leg varicose veins. Development on remand also included that pertaining to matters not now on appeal (e.g., a July 1992 orthopedic examination concerning a wrist disability). The veteran was scheduled for a November 1992 VA vascular examination to determine the nature and severity of the varicose veins in his legs. However, he failed to report, and he did not give any reason for failing to report and did not contact the RO to reschedule an examination. II. Legal Analysis With respect to the veteran's claim for an increased rating for varicose veins of his right leg, the Board notes that, pursuant to instructions contained in its May 1992 remand, he was scheduled for a special VA vascular examination in November 1992 to determine the current severity of this disability. However, he failed to report and did not ask that his examination be rescheduled. He also did not give any justifiable reasons for his failure to report. While the VA has a duty to assist the veteran in developing evidence pertinent to his claim, he also has a duty to assist and cooperate in developing evidence; the duty to assist is not a one-way street. 38 U.S.C.A. § 5107(a); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Veterans claiming benefits have an obligation to report for examinations ordered by the VA, and the veteran in this case has not met his obligation. Thus, the Board has decided the claim based on the evidence of record. See 38 C.F.R. §§ 3.326, 3.327, 3.655; Dusek v. Derwinski, 2 Vet.App. 519, 520-521 (1992). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment in earning capacity a disability in question would cause. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. A 20 percent rating is assigned for unilateral varicose veins which are moderately severe, with involvement of superficial veins above and below the knee, with varicosities of the long saphenous, ranging in size from 1 to 2 cm. in diameter, with symptoms of pain or cramping on exertion, and no involvement of the deep circulation. Severe varicosities below the knee, with ulceration, scarring, or discoloration and painful symptoms will also be rated as moderately severe (i.e., 20 percent). A 40 percent rating is assigned for unilateral varicose veins which are severe, with involvement of superficial veins above and below the knee, with involvement of the long saphenous, ranging over 2 cm. in diameter, with marked distortion and sacculation, with edema and episodes of ulceration, and no involvement of the deep circulation. 38 C.F.R. § 4.104, Code 7120. The evidence shows that years ago the veteran underwent surgery for right leg varicose veins. A March 1991 VA outpatient record noted slight swelling of the leg and old surgical scars. An April 1991 VA examination noted only minimal swelling and the surgical scars, and some ulceration and stasis changes, although no current active ulcer was described. This evidence does not describe the rating criteria for severe (40 percent) unilateral varicose veins, and it depicts a disability which is no worse than moderately severe (20 percent). A more detailed medical description of the condition would be helpful, but, as noted, such has been prevented by the veteran's failure to report for the latest scheduled VA examination. The preponderance of the evidence demonstrates that right leg varicose veins are no more than 20 percent disabling; the benefit-of-the-doubt doctrine is inapplicable; and an increased rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An increased rating for varicose veins of the right leg is denied. L. W. TOBIN 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.