BVA9501522 DOCKET NO. 93-09 234 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased disability evaluation for post- operative residuals of varicose veins of the left thigh and leg, including scars, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to December 1953. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claim of entitlement to a disability evaluation greater than 20 percent for post-operative residuals of varicose veins of the left thigh and leg, including scars. He claims that this service-connected disability is more severely disabling than currently evaluated. Specifically, he maintains that he experiences pain, burning, and weakness sensations. He maintains that he elevates his legs whenever possible and takes anti-inflammatory medication but that these attempts to alleviate the symptomatology of his varicose veins have been unsuccessful. He also asserts that he wears elastic stockings. Consequently, he contends that he is entitled to an evaluation greater than 20 percent for this disability. 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 claim of entitlement to an evaluation greater than 20 percent for post-operative residuals of varicose veins of the left thigh and leg, including scars. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. The veteran's varicose vein disability of the left lower extremity, which is manifested by complaints of pain, weakness, and burning sensations and by medical evidence of a moderate degree of varicosities, no involvement of the left long saphenous vein, no marked distortion, no sacculation, no edema, and no ulceration, is productive of not more than moderately severe impairment. CONCLUSION OF LAW The criteria for an evaluation greater than 20 percent for post-operative residuals of varicose veins of the left thigh and leg, including scars are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.104, Code 7120 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1993). In a July 1956 rating decision, the RO granted service connection for post-operative residuals of varicose veins of the left thigh and leg, including scars. The RO rated the disability as noncompensable, effective from April 1956, on the basis that the examination demonstrated only insignificant scars of the left thigh and leg. The RO informed the veteran in the August 1956 notice of the July 1956 rating decision that his claim for service connection for varicose veins was granted only for his left thigh and leg. Subsequently, in a July 1989 rating decision, the RO assigned a 20 percent evaluation for this disability, effective from February 1989. This allowance of a compensable rating was based on the results of a VA examination which demonstrated that the veteran had multiple varicosities of his left lower extremity without deep vein thrombosis or venous insufficiency. The veteran is evaluated for his varicose veins disability under Diagnostic Code 7120. Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1993) and is designed to compensate a veteran for the average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The United States Court of Veterans Appeals (Court) has recently held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). With these regulations and this Court decision in mind, the Board will address the issue of the evaluation of the present level of disability resulting from the veteran's service-connected post-operative residuals of varicose veins of his left thigh and leg, including scars. This disability is presently evaluated as 20 percent disabling under Diagnostic Code 7120. Pursuant to this Code, a 20 percent rating contemplates moderately severe impairment resulting from unilateral involvement of superficial veins above and below the knee with varicosities of the long saphenous vein ranging in size from one to two centimeters in diameter, and with symptoms of pain or cramping on exertion, and no involvement of the deep circulation. The next higher rating for unilateral varicose veins is a 40 percent disability evaluation, which requires evidence of severe impairment resulting from superficial veins above and below the knee with involvement of the long saphenous vein ranging over two centimeters in diameter, marked distortion and sacculation, with edema and episodes of ulceration, and no involvement of the deep circulation. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.104, Code 7120 (1993). Throughout the appeal, the veteran has contended that he experiences pain, burning, and weakness sensations in his left lower extremity as a result of his varicose veins. He has also maintained that he elevates his left leg whenever possible and takes anti-inflammatory medication but that these attempts at alleviating his varicose vein symptomatology have been unsuccessful. He has also explained that he wears elastic stockings. We note that the veteran also has varicose veins of the right lower extremity, which are nonservice connected. Therefore, symptomatology attributable to the varicose veins of the right lower extremity cannot be taken into consideration when evaluating the service-connected varicose veins of the left lower extremity. 38 C.F.R. § 4.14 (1993). According to the medical evidence received pursuant to the present claim, in October 1991 the veteran sought treatment for burning and pain sensations in his lower extremities. After examining the veteran, Dr. Jack Smith concluded that the veteran had substantial varicosities which were worsening. In the same month, the veteran continued to complain of experiencing a burning and pain sensation in his left lower extremity and sought treatment from Steven Teitel, P.T., who noted substantial varicosities which correspondingly increased when the veteran was standing for prolonged periods of time. Subsequently, in May 1992, the veteran underwent a VA examination for his varicose veins. At that time, the veteran reported to the examiner that he experienced weakness and pain in his left lower extremity and that he wore elastic stockings. Examination of the veteran's left lower extremity demonstrated a moderate degree of varicosities below the knee, mild stasis dermatitis, no ulceration, no pedal pulses, and no cardiac involvement. The examiner indicated that there was involvement of the veteran's right long saphenous vein. The veteran's skin temperature was within normal limits. The veteran denied having any paresthesia at the time of the examination. The examiner diagnosed varicose veins, status post ligation and stripping of the left, remote, symptomatic. The extent of any deep circulation involvement was not noted. However, recent examination of the veteran's left lower extremity specifically demonstrated that he has no ulceration and only a moderate degree of varicosities. Furthermore, there is no evidence of involvement of the left long saphenous vein, veins above the knee, marked distortion, sacculation, edema, or episodes of ulceration. The Board notes that, because the VA examiner specifically mentioned that there is involvement of the veteran's right long saphenous vein but did not mention his left long saphenous vein, the examiner must have failed to find evidence of any involvement of the left long saphenous vein. In light of this lack of evidence supporting a finding of severe varicose veins of the left lower extremity, a of the left lower extremity evaluation greater than 20 percent for a varicose veins of the left lower extremity is not warranted. Although both of the private medical statements dated in October 1991 demonstrated that the veteran had substantial varicosities which were worsening, neither of these statements reports findings or symptomatology concerning the schedular criteria for an evaluation greater than 20 percent, nor did either physician differentiate between any symptomatology attributable to the nonservice-connected right lower extremity, which the VA examiner found to be worse than the service-connected left lower extremity. We also note that the veteran's service-connected disability includes scars from the previous ligation and stripping. The recent VA examination indicates that any scarring is essentially asymptomatic, and, therefore, has no effect on the current evaluation. See 38 C.F.R. § 4.14, Diagnostic Codes 7803, 7804, 7805 (1993). The regulations require that the evaluation of a disability of the musculoskeletal system must take into account the functional loss due to pain of the damaged part of the system. 38 C.F.R. Part 4, § 4.40 (1993). In the present case, the veteran's complaints of functional loss, including his subjective reports of pain and weakness are supported by the objective findings of the various examinations. The Board concludes that the veteran's current 20 percent rating adequately contemplates the pain that he experiences in his left lower extremity, and there is no medical indication that the pain or weakness, and any resulting functional loss, is above that contemplated by the schedular criteria for a 20 percent evaluation. As noted above, 38 C.F.R. § 4.40 (1993) was considered in reaching a determination in this case. In addition, other provisions of 38 C.F.R. Parts 3 and 4 have also been considered as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). For example, the possibility of an extraschedular evaluation has been considered. However, the Board finds that the present case does not present an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. Thus, an increased rating on an extraschedular basis under 38 C.F.R. § 3.321 is not warranted. ORDER An increased rating for post-operative residuals of varicose veins of the left thigh and leg, including scars, is denied. WILLIAM J. REDDY 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.