Citation Nr: 0000617 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 91-56 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a skin disability of the feet. 2. Entitlement to an increased evaluation for varicose veins of the left leg with phlebitis, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from January 1974 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. FINDINGS OF FACT 1. The claim for service connection for a skin disability of the feet is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The veteran's service-connected varicose veins of the left leg with phlebitis is manifested by intermittent edema and ulceration; involvement of the deep circulation is not demonstrated. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for a skin disorder of the feet. 38 U.S.C.A. § 5107 (West 1991). 2. A rating in excess of 40 percent for varicose veins of the left leg with thrombophlebitis is not warranted. 38 C.F.R. § 4.104, Diagnostic Codes (DCs) 7120, 7121 (1997, 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). A well grounded claim is "[a] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The U.S. Court of Appeals for Veterans Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in- service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Also controlling in this case are decisions of the Court concerning the types of evidence required to establish important facts. The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet. App. at 93. The basic framework of the law and regulations provides that service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999. Factual Background The veteran claims service connection for a skin disability of the feet. Specifically, it is asserted that he has foot fungus of the feet that first occurred during service and continues to appear. The Board's review of the service medical records (SMRs) is negative for complaint of, or treatment for, any skin disability of the feet. This includes at the time of service separation examination in July 1975. The veteran provided no recorded complaints or history of no skin problems and examination was normal. The veteran's initial claim for compensation benefits was filed in 1975. He identified disabilities to include for left calf varicose veins. No mention was made of a foot fungus or other skin disorder. Post service records include VA and private records from 1975 through the present, as well as testimony at two personal hearings. Service connection was established upon rating decision in December 1975 for varicose veins of the left leg and a noncompensable rating was assigned. This rating was increased to 40 percent following submission of VA outpatient records dated in 1986. In September 1989, the veteran submitted a claim for service connection for phlebitis as secondary to his service-connected varicose veins of the left leg. He also submitted a claim for foot fungus of the feet. Additional VA outpatient records from 1988 and 1989 were added to the claims file. These records showed treatment for the service-connected varicose veins. In August 1989, tinea was noted. Shortly thereafter, in an October 1989 rating decision, the RO determined that phlebitis was part and parcel of the veteran's service-connected left lower extremity disorder. The veteran's claim for service connection for foot fungus was denied as the SMRs were negative for this disorder and tinea was not reported until many years thereafter. At a personal hearing in September 1990, the veteran provided testimony in support of his claim. When asked when he was first aware that he had a fungal disorder of the feet, he said that it arose right after basic training while he was at Fort Jackson. He confirmed that he had no problems with his feet prior to service. When asked about the cause of his foot fungus, he stated that he believed that he picked it up when walking in the showers shared with other servicemen. Hearing [Hrg.] Transcript [Tr.] at 2. He was given an antifungal powder while in service, and he said that he had used this and a lotion since 1974. Tr. at 2-3. He opined that his fungus was curable and would probably progress as he aged. Tr. at 3. When asked why there was no record of this treatment during service, he stated that he was treated at the post hospital at Fort Jackson and was seen by a physician but did not go back to the hospital or receive other treatment. He added that he believed that his foot fungus was traceable back to the military. Tr. at 4-5. Additional clinical records through 1998 are replete with treatment for the veteran's service-connected left leg varicose veins and phlebitis, but they are essentially negative for complaint of or treatment for a foot fungus or other skin disability. Analysis There is no medical evidence of a foot fungus or other skin disability during service or for many years thereafter. There is no evidence that the veteran is more than a lay party as to matters of medical expertise. Accordingly, while he is competent to identify symptoms visible to a lay party, he is not competent to provide a medical diagnosis of those manifestations or to provide a medical opinion as to causation. Espiritu, supra. The record contains no competent medical evidence of any causal relationship between the tinea noted in 1989 and service. The veteran's good faith belief that such a nexus exists is not a legally adequate substitute for competent medical evidence on this matter. Without any evidence of inservice occurrence or competent evidence of a causal relationship between a current skin disability and service, this claim may not be found well grounded. Increased Evaluations A person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a disability has already been service-connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1998). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (1998); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the basis of the evidence of record. This regulation is only enforced if the claimant cannot show good cause for missing a scheduled examination. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655(a) & (b) (1999). Individuals for whom medical examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. §§ 3.326(a), 3.327(a), 3.655 (1998). In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1 (1998); Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id., slip op. at 9. On the other hand, where entitlement to compensation has already been established, as is the claim herein at issue, the appellant's disagreement with an assigned rating is a new claim for increased benefits based on facts different from a prior final claim. Suttman v. Brown, 5 Vet. App. 127, 136 (1993). The Board notes that during the pendency of the veteran's claim, the regulations pertaining to evaluation of diseases of the arteries and veins, including thrombophlebitis and varicose veins, were amended, effective January 12, 1998. See 62 Fed. Reg. 65207-65244 (1998) (presently codified at 38 C.F.R. §§ 4.104 (1998). The Court has held that "where the law or regulation changes after a claim has been filed or reopened but before the ... judicial appeal process has been concluded, the version most favorable to appellant should and ... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The Court noted that this view comports with the general thrust of the duty-to-assist and the benefit-of-the-doubt doctrines. Id. In light of the foregoing, the Board will evaluate the veteran's right leg residuals of thrombophlebitis under both the current and former versions of the regulations, and apply the most favorable result to the veteran. Under code criteria in effect prior to the regulatory changes, a 30 percent evaluation for unilateral thrombophlebitis was granted where the condition was productive of persistent swelling of the leg or thigh, increased on standing or walking 1 or 2 hours, readily relieved by recumbency; moderate discoloration, pigmentation and cyanosis or persistent swelling of arm or forearm, increased in the dependent position; moderate discoloration, pigmentation or cyanosis. A 60 percent evaluation was granted where the condition was productive of persistent swelling, subsiding only very slightly and incompletely with recumbency elevation, with pigmentation cyanosis, eczema or ulceration. Under current code, post-phlebitic syndrome warrants a 20 percent evaluation where productive of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema; a 40 percent evaluation where productive of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; and a 60 percent evaluation where productive of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. In the alternative, the veteran's disability may be evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7120 for varicose veins. Under the old criteria, varicose veins were evaluated differently depending upon whether bilateral or unilateral. As the veteran has service connection only for his left leg, his disability is evaluated as unilateral. Under this code, unilateral varicose veins were awarded a 20 percent disability evaluation if moderately severe, involving 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, no involvement of the deep circulation; a 40 percent evaluation if severe, involving superficial veins above and below the knee, with involvement of the long saphenous, ranging over 2 cm in diameter, marked distortion and sacculation, with edema and episodes of ulceration, no involvement of the deep circulation; and a 50 percent evaluation if pronounced, with the findings of the severe condition with secondary involvement of the deep circulation, as demonstrated by Trendelenburg's and Perthe's tests, with ulceration and pigmentation. 38 C.F.R. § 4.104, Diagnostic Code 7120 (1997). Under the new criteria, varicose vein symptomatology and rating schedule is identical to that set forth for post- phlebitic syndrome. See 38 C.F.R. § 4.104, Diagnostic Code 7120 (1998). Factual Background The veteran has a long history documented in the claims file for treatment of varicose veins of the left leg with thrombophlebitis. The veteran's symptoms, as documented in hearing testimony, outpatient treatment reports, and numerous VA examinations consistently have included complaints of, or reports of edema to varying degrees. The veteran has reported ulcerations of the left leg on an intermittent basis. At a personal hearing in May 1993, the veteran testified as to worsening service-connected disorder. The area where the varicose veins were located had become larger and included breakouts of varicose veins around his ankles and under the bottom of his feet. Tr. at 2. Due to the severity of his condition, he wore customized stockings. Tr. at 3. He suffered from ulcerations about once per month. Tr. at 4. A VA physician examined the veteran in January 1994. Following evaluation of the veteran and review of the claims file, the examiner's assessment was of venous varicosities. It was noted that the veteran had had a clear history of venous varicosities that occurred after his initiation into the service and that this condition had progressively worsened. There was no history of deep venous thrombosis or pulmonary embolism. However, he now had a chronic pain syndrome related to the varicosities. He was currently compliant with medical therapy that included vascular compressions with hose. Indeed, he was wearing Jobst stockings during this examination. The examiner added that previous vascular surgery evaluation had noted varicosities with incompetent venous drainage as noted reflux. In addition, he had had episodes of ulceration and phlebitis. Doppler examination supported this diagnosis. Upon additional VA examination in May 1996, the examiner noted that the veteran had documented varicosities along the posterior aspect of the upper third of the left calf in the lesser saphenous distribution. His symptoms included pain and chronic swelling in this extremity, relieved by elevation. He was examined in 1992 and found to have left lesser saphenous reflux with extensive varicosities. A continuous wave Doppler examination suggested the presence of deep venous insufficiency and therefore a duplex examination was recommended. His treatment had included compression stockings. He had reported a history of swelling and ulceration in the left lower extremity, but these had not been present at the time of clinic evaluations. The examiner noted that this case had been referred back to him to address the question of secondary involvement of the deep circulation as demonstrated by Trendelenburg's and Perthe's tests. These tests were now largely of historical interest only since they could give only secondary information about the deep venous system. They had been replaced by the more direct method of duplex scanning, which was used to image the deep vein and evaluate flow within the deep venous system. The veteran had undergone two duplex examinations. The first found normal flow in the deep venous system of both lower extremities with no evidence of valvular incompetence. The superficial saphenous vein below the knee of the left had valvular incompetence, as did the perforating veins in this region. The second examination (in March 1996) findings were similar. There was no evidence of reflux (valvular incompetence) or of significant occlusion in the deep venous system. There was reflux in the varicosities in the left calf region. The examiner concluded that based on the duplex scan evaluation, "which is now the accepted standard for evaluation of the deep venous system," there was no evidence of secondary involvement of the deep circulation. When examined in June 1998, the examiner noted that the veteran's vein abnormality was first noted in 1974 and increased in size and severity of symptoms to the present time with periodic pain and swelling and sometimes ulceration. The last ulceration had occurred three months ago and was better with application of vitamin oil and elevation. The veteran took aspirin or other over the counter pain relievers on a daily basis and wore extended support elastic stockings. The veteran related that his varicose veins had spread, and he said that the deep veins on the inside of his left thigh ached. On examination, the appellant was in no distress with normal gait and stance. The left calf was 2 cm. greater in circumference than the right with a large patch of visible and palpable varices 12 cm. in diameter over the left posteromedial calf with increased heat but no pitting edema. There was no evidnece of proximal venous disease, and the right lower extremity was also normal. The left calf was tender. The examiner's impression was phlebitis of the left leg with small saphenous varicosities. The record shows that the veteran failed to report for scheduled examiantions in January and July 1999. Analysis The Board's remand in 1994 directed an additional examination, including specifically Trendelenburg's and Perthe's testing. Under the subsequent case law, such an order confers on the appellant a legal right to compliance with the Board's directive. Stegall v. West, 11, Vet. App. 268 (1998). The record reflects that Trendelenburg's and Perthe's testing was not performed on the examination post remand. As the recent examiner explained, however, Trendelenburg's and Perthe's tests address the question of secondary involvement of the deep circulation. These tests were now largely of historical interest only since they could give only secondary information about the deep venous system. They have been replaced by the more direct method of duplex scanning, which was used to image the deep vein and evaluate flow within the deep venous system. The veteran had undergone two duplex examinations. Accordingly, the record shows that while the specific testing directed by the Board was not performed, the testing that was performed was, in fact, far superior for the purpose of ascertaining the functioning of the deep circulation. Accordingly, the Board finds that the failure to perform the much less effective method of testing referred to in the Board's 1994 remand or the old rating criteria can not be deemed to have been prejudicial to the veteran and thus no further development is required. Despite the veteran's contentions to the contrary, a review of the record indicates that an increased evaluation is not warranted under either the old or new rating criteria for DC 7120. To warrant a 50 percent rating under the old criteria, the maximum rating available for unilateral varicose veins, the medical evidence would have to demonstrate pronounced varicose veins with secondary involvement of the deep circulation, ulceration, and pigmentation. Based on the recent evidence, including the VA examinations in 1994, 1996, and 1998, the veteran does have mild pigmentation and he reported increasing symptoms, but he does not currently experience impairment of deep circulation. While he reports recurring ulceration, most recently three months prior to examination in June 1998, active ulceration, or evidence or recent ulceration, has not been demonstrated at the time of actual evaluations over many years. Thus, the positive clinical findings are limited to mild pigmentation changes. As the Board attaches the most weight to the objective findings, it is clear that the criteria for a rating higher than 40 percent by application of DC 7120 of the old criteria are not met or more nearly approximated. In view of the history of thrombophlebitis of the left leg, the Board has also considered the rating criteria under DC 7121, in effect prior to January 1998. A 60 percent rating is not warranted under this code. While the veteran has problems with swelling, there has been no indication that his thrombophlebitis has caused obliteration of deep return circulation, which is required for application of these criteria. Indeed, the current evidence shows no impairment of deep circulation. Consequently, there is no basis for granting a higher rating under the old criteria. The Board also finds that there is no evidence that the veteran has symptoms that are productive of disability that would warrant a rating higher than 40 percent under the new rating criteria under DCs 7120 and 7121. As noted above, there is objective evidence of occasional swelling and some pigmentation, but no evidence of any ulceration at the time of recent examinations, or of recent ulceration. Although the veteran has reported ulceration on an ongoing basis, the medical evidence in recent years has not indicated ulcerations that might be described as persistent. Accordingly, the evidence does not warrant an increased rating. The Board also notes that implicit within the regulatory framework of the VA is the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology; such a result would overcompensate him for the actual impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.14. In the area of workers' compensation law, such duplication has often been referred to as "pyramiding of benefits," " pyramiding of disabilities," or "pyramiding of compensation." Brady v. Brown, 4 Vet. App. 203, 206 (1993). The critical element in determinations of this nature is whether the symptomatology for one of several conditions is duplicative of, or overlapping with, the symptomatology of another condition. If it is, compensation may not be granted for both conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). The Board observes that the veteran's left leg varicose veins with thrombophlebitis are not separate and distinct entities and have already been service connected as part of the overall disability picture concerning his left leg. In evaluating this disability, the RO has considered both Diagnostic Code 7120, pertaining to varicose veins, and Diagnostic Code 7121, relevant to phlebitis or thrombophlebitis, and the Board has determined that a rating in excess of 40 percent rating under the old or revised criteria is not warranted. In addition, the Board also points out that the phlebitis and varicose veins are both symptoms of the same disorder, chronic venous disease. To assign separate ratings would constitute pyramiding under 38 C.F.R. § 4.14. The Board concurs with the RO that there are no unusual or exceptional factors such as to warrant an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (1999). Finally, the Board notes that the currently assigned rating recognizes a serious degree of disability. The conclusion that an increased rating is not currently warranted does not preclude the veteran from reopening his claim should his symptoms increase in the future. ORDER The claim for service connection for a skin disability of the feet is denied. An increased rating for varicose veins of the left leg with thrombophlebitis is denied. Richard B. Frank Member, Board of Veterans' Appeals