Citation Nr: 0004922 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 96-38 249 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased evaluation for service-connected varicose veins, left leg, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from September 1965 to September 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1996 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's service-connected left-leg varicose veins disability, is manifested by incompetence of the lesser and greater saphenous veins in the left lower leg and left knee, and is of moderately severe degree. There is no significant edema or ulceration. CONCLUSION OF LAW The schedular criteria for a disability rating in excess of 20 percent for varicose veins of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(a), 5110(g) (West 1991); 38 C.F.R. § 3.321, Part 4 including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, Diagnostic Code (DC) 7120 (1998), DC 7120 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Because the veteran's claim is well grounded, VA has a duty to assist with the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that the veteran was provided three VA examinations for varicose veins including one recently. In addition, the RO obtained numerous VA medical records that the veteran indicated were available. The veteran has not indicated that there is any other relevant evidence available but not yet of record. Overall, the Board finds that no further assistance is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service-connected disabilities are rated pursuant to diagnostic codes in the Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999) (Rating Schedule). It must be noted that the pyramiding of various diagnoses of the same disability is prohibited. 38 C.F.R. § 4.14 (1999). Where there is a question as to which of two evaluations under a specific diagnostic code shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). It is noteworthy that, in considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the current level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board also notes that after the appellant filed his initial claim, portions of the VA schedule of rating criteria governing cardiovascular disorders, including the criteria under Diagnostic Code 7120, were amended effective January 12, 1998. Accordingly, the Board will apply the regulation most favorable to the appellant. See Karnas v. Derwinski, 1 Vet. App. 308 (1990). Finally, in deciding claims for VA benefits claims, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). The veteran submitted a claim seeking entitlement to an increased evaluation for varicose veins in December 1995. The veteran was first granted service connection for varicose veins of the left leg in November 1968. The veteran was granted an evaluation of 20 percent by rating decision dated July 23, 1986. In March 1996, after filing a claim for an increased evaluation, the veteran was provided a VA examination for varicose veins. The examiner noted a 11 centimeters long segment of varicose vein on the lower left leg with a diameter of 0.6 centimeter and no varicosities above the knee and no edema or ulceration. The veteran reported pain after prolonged standing or walking. In May 1997, the veteran was provided a second VA examination. The examiner noted incompetence of the lesser and greater saphenous veins in the left lower leg, and edema of the left leg. In July 1998, the appellant testified at a personal hearing before a hearing officer. The appellant testified that he had difficulty standing or walking for more than three hours a day. He testified that the varicose veins were painful and disabling in his left leg only. Additionally, the appellant testified that he was experiencing swelling in his legs, and had ulcers on his feet, including a large ulcer in 1966. Finally, in August 1998, the veteran was provided a 3rd VA examination. The examiner noted moderately severe varicose veins on the left lateral foot, and near the knee. There was no significant edema or ulceration noted. In August 1998, the RO received reports of VA outpatient treatment between October 1996 and September 1998. The appellant saw a podiatrist approximately once every three months. In October 1996, an ulcer was noted on his left foot and it was treated and was doing well by June 1997. The appellant also complained of pain on most visits, and swelling was noted in November 1996. There was no noted ulceration or swelling after June 1997. The veteran contends that a disability rating in excess of 20 percent is warranted for his service-connected varicose veins of the left leg. Under the current regulation, a 10 percent rating is warranted for varicose veins of a single extremity when there is "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." 38 C.F.R. § 4.104, DC 7120 (1999). A higher rating, of 20 percent, requires disability more closely reflecting "persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema." Id. Because the regulations governing varicose veins disorders have changed since the appellant filed his initial claim for benefits, the Board is required to look at both the old and the current regulations and apply the regulation that is most favorable to the appellant. Karnas v. Derwinski, 1 Vet. App. 308 (1990). The regulatory criteria prior to January 12, 1998 provided that a 20 percent disabling evaluation was warranted when the varicose veins were "moderately severe; involving superficial veins above and below the knee, with varicosities of the long saphenous, ranging in size from 1 to 2 centimeter in diameter, with symptoms of pain or cramping on exertion; no involvement of the deep circulation." 38 C.F.R. § 4.104, DC 7120 (1997). A higher evaluation, of 40 percent, was not warranted under the old regulations unless the varicose veins were "severe; involving superficial veins above and below the knee, with involvement of the long saphenous, ranging over 2 centimeter in diameter, marked distortion and sacculation, with edema and episodes of ulceration; no involvement of the deep circulation." Id. The terms "moderately-severe" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (1999). Terminology such as "moderately-severe" and "severe" are used by VA examiners and others and although an element of evidence to be considered by the Board, are not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1999). After review of the record, the Board finds that the criteria for an evaluation in excess of 20 percent have not been met. Under the new regulations, the veteran would be entitled to a rating of 10 percent based on the medical findings of intermittent rather than persistent edema and his report of pain after prolonged standing or walking. 38 C.F.R. § 4.104, DC 7120 (1999). Under the old regulations, the veteran's evaluation of 20 percent would be continued. The VA examination report described the veteran's varicose veins as moderately severe, and there were notations of varicosities of 11 centimeters in length and 0.6 centimeter in diameter. Additionally, there were the aforementioned complaints of pain upon exertion. The nature and size of the varicosities, the single episode of ulceration noted in the records in 1996, and the lack or substantial edema, indicate that a higher evaluation, of 40 percent, is not warranted. 38 C.F.R. § 4.104, DC 7120 (1997). The Board therefore will apply the regulation most favorable to the veteran and finds that he is entitled to an evaluation of 20 percent for his service-connected varicose veins of the left leg. Karnas, supra. The criteria for a rating in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.104, DC 7120 (1997), DC 7120 (1999). Consideration has been given to the doctrine of reasonable doubt as to this issue, but the preponderance of the evidence is against the claim. As such, the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 20 percent for service connected varicose veins of the left leg is denied. A. BRYANT Member, Board of Veterans' Appeals