Citation Nr: 0003868 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 92-09 674 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES Entitlement to an increased evaluation for bilateral varicose veins, rated as 50 percent disabling prior to January 12, 1998; and evaluated as 2 separate 40 percent ratings of the right and left legs as of January 12, 1998. Entitlement to a total rating for compensation purposes based on unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from June 1945 to April 1955. This appeal came to the Board of Veterans' Appeals (Board) from a January 1992 RO rating decision that denied an increase rating for bilateral varicose veins (rated 50 percent) and a total rating for compensation purposes based on unemployability. A November 1997 Board decision denied an increased evaluation for the bilateral varicose veins and remanded the issue of entitlement to a total rating for compensation purposes based on unemployability to the RO for additional development. The veteran then appealed the November 1997 Board decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court). In an April 1998 joint motion to the Court, the parties requested that the November 1997 Board decision, denying an increased evaluation for bilateral varicose veins, be vacated and remanded for readjudication. In an April 1998 order, the Court granted the parties' motion, and the case was thereafter sent to the Board. An April 1998 RO rating decision terminated the 50 percent rating for the bilateral varicose veins and assigned separate 40 percent ratings for the varicose veins of each leg, effective as of January 12, 1998. In August 1998, the Board remanded the case to the RO for additional development. In June 1999, after the requested development, the RO issued a supplemental statement of the case (SSOC) which listed, as issues, the evaluation of the ear disability, the pilonidal cyst, and the fungus infection, as well as the issues already on appeal. This inclusion of new issues was contrary to procedural guidelines. See VA Adjudication Procedure Manual M21-1, Part 4, par. 8.11. VA Form 646 received in September 1999 cited as the issues, "As cited in the [SSOC] dated June 14, 1999," but did not mention the ear disability, the pilonidal cyst, or the fungus infection. Appellant's January 2000 brief before the Board addresses only the varicose veins and unemployability. The Board cannot address the merits of the ratings assigned for the ear, cyst, and skin disabilities because a completed appeal requires a notice of disagreement and a substantive appeal. 38 U.S.C.A. § 7105(a) (West 1991). The Board finds that the September 1999 was not intended as a notice of disagreement with respect to the ear, cyst, and skin ratings, and will address these disabilities only insofar as they affect the veteran's employability. FINDINGS OF FACT 1. Service connection is currently in effect for varicose veins of the right leg, rated 40 percent; varicose veins of the left leg, rated 40 percent; bilateral non-suppurative otitis media with otitis externa and hearing loss, rated 20 percent; residuals of pilonidal cyst, rated zero percent; and a fungus condition of the hands and groin, rated zero percent. The combined rating for the service-connected disabilities is 80 percent. 2. The veteran's bilateral varicose veins are manifested primarily by varicosities above and below the knees, occasional edema, and occasional stasis venous changes of the feet; involvement of deep circulation is not demonstrated on Trendelenburg's and Perthes tests; persistent edema or subcutaneous induration, persistent stasis pigmentation or eczema, and persistent ulceration are not found. 3. He has an average pure tone threshold (at 1,000, 2,000, 3,000, and 4,000 hertz) of 46 decibels in the right ear with a 68 percent speech recognition ability that equates to acuity level IV, and the left ear average pure tone decibel threshold (at the same frequencies) is 55 with a 60 percent recognition ability that equates to acuity level VI. 4. The residuals of pilonidal cyst are manifested primarily by an asymptomatic scar. 5. The veteran's fungus condition is manifested primarily by an occasional rash involving the feet, hands, and groin, and complaints of pain; exfoliation, exudation or itching is not currently demonstrated. 6. The veteran has not worked since May 1986, he has 12 years of education, and he has work experience as an insurance agent. 7. His service-connected disabilities do not prevent him from engaging in substantially gainful employment compatible with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a higher rating for bilateral varicose veins, rated as 50 percent prior to January 12, 1998, are not met; the criteria for increased ratings for varicose veins of the right and left legs, each rated 40 percent as of January 12, 1998, are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.104, Code 7120, effective prior to and as of January 12, 1998. 2. The criteria for a total disability evaluation by reason of unemployability due to service-connected disabilities are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an Increased Evaluation for Bilateral Varicose Veins, Rated as 50 Percent Disabling prior to January 12, 1998; and Evaluated as 2 Separate 40 Percent Ratings of the Right and Left Legs as of January 12, 1998. A. Factual Background The veteran had active service from June 1945 to April 1955. A May 1961 RO rating decision granted service connection for varicose veins of the left leg. A zero percent rating was assigned for this condition, effective from May 1960. A November 1987 RO rating decision increased the evaluation for the varicose veins of the left leg from zero to 40 percent. The 40 percent rating was effective from September 1987. VA and private medical reports show that the veteran was treated and evaluated for various conditions in the 1990's. The more salient medical reports with regard to his claim for an increased evaluation for the varicose veins are discussed in the following paragraphs. The veteran underwent a VA compensation examination in September 1991 to determine the severity of his varicose veins. He had massive varicosities of both lower legs, including the thighs. He had some veins that were as much as 2-3 centimeters in diameter and tortuous. There were small veins around the ankles giving a brown discoloration of the skin around the ankles. The diagnosis was massive varices of both lower legs. A September 1991 RO rating decision granted service connection for varicose veins of the right leg, effective from September 1987. The evaluation for the varicose veins of the left leg was increased from 40 to 50 percent, effective from September 1987, and the disability was reclassified as bilateral varicose veins. A report from Walter J. Roberts, M.D. dated in November 1991 notes that the veteran had significant varicose vein disease involving both lower extremities. The physician reported that the veteran was hospitalized with thrombophlebitis in 1986 and had been treated for superficial thrombophlebitis since then. The veteran underwent a VA medical examination in January 1994 to determine the severity of his varicose veins. He had massive varices extending from the knees down to both ankles. The saphenous veins on both sides were enlarged with varices on some of their tributaries. The skin around the ankles was discolored with a purplish color because of many superficial subcutaneous varices. There was normal range of motion of the legs. He had some edema of the lower legs. The diagnosis was massive varices of both lower legs. The veteran underwent a VA medical examination in September 1994. He had large caliber varicose veins above and below the knees. On examination by Trendelenburg's and Perthes tests there was no evidence of deep vein involvement. The superficial veins were tender and markedly dilated both above and below the knees. The diagnosis was severe superficial varicose veins. The veteran underwent a VA medical examination in March 1998 to determine the severity of his varicose veins. He had marked varicosities both above and below the knees. These varicosities were in excess of one centimeter in diameter. The varicosities on the left leg were significantly worse than those on the right. He reported pain particularly when standing for long periods of time. He complained of bilateral foot numbness and tingling. Examination of the feet demonstrated venous stasis changes. The impressions were severe varicose veins and venous stasis changes of the feet with foot numbness and tingling. The veteran underwent a VA medical examination in February 1999 to determine the severity of his varicose veins. The report of this examination, and an addendum to this report dated in April 1999 that notes the veteran's claims folder was reviewed, shows that he had superficial varicosities in the skin of the feet and ankles. There were mild varicosities noted in the calves with nothing significant above the knees. There were no ulcerations, crusting or other lesions. There was no streakiness or tenderness. The left ankle was slightly swollen and the right ankle appeared normal. The examiner opined that the veteran had mild to moderate difficulty with his varicose veins that should not interfere with his ability to work. The examiner opined that the veteran could do numerous occupations that would give him breaks from prolonged standing in the upright position. B. Legal Analysis The veteran's claim for an increased evaluation for the varicose veins is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A zero percent rating is warranted for mild varicose veins with no symptoms. A 10 percent rating is warranted for moderate bilateral varicose veins where there are varicosities of the superficial veins below the knees and symptoms of pain or cramping on exertion. A 30 percent evaluation requires moderately severe bilateral varicose veins involving the superficial veins above and below the knees with involvement of the long saphenous vein, varicosities ranging in size from 1 to 2 centimeters in diameter, and symptoms of pain or cramping on exertion, but with no involvement of the deep circulation or severe varicosities below the knees with scarring, ulceration or discoloration. 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 herein and additional 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, Code 7120, effective prior to January 12, 1998. The regulations for the evaluation of varicose veins were revised, effective January 12, 1998. 62 Fed. Reg. 65207- 65224 (December 11, 1997). Under the revised regulations the criteria for the evaluation of varicose veins apply to a single extremity and, if the paired extremity is affected, the evaluation for each extremity will be separately determined and combined using the combined ratings table and the bilateral factor under 38 C.F.R. §§ 4.25 and 4.26. When regulations are changed during the course of the veteran's appeal, the criteria that is to the advantage of the veteran should be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Asymptomatic palpable or visible varicose veins warrant a zero percent evaluation. A 20 percent evaluation requires intermittent edema of extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 40 percent evaluation requires persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 60 percent evaluation requires persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent evaluation requires massive board-like edema with constant pain at rest. NOTE: These evaluations are for involvement of a single extremity. If more than one extremity is involved, evaluate each extremity separately and combine under 38 C.F.R. § 4.25, using the bilateral factor under 38 C.F.R. § 4.26. 38 C.F.R. § 4.104, Code 7120, effective as of January 12, 1998. The reports of the veteran's VA medical examinations in the 1990's indicate that his varicose veins are more severe at certain times, but the evidence does not show that the varicose veins are more severe than rated. The reports of his VA medical examinations in September 1994 and March 1998 indicate the presence of varicosities above and below the knee, but varicosities above the knee were not found at most examinations, including the report of his most recent VA medical examination in 1999. The examiner who saw the veteran in 1999 opined that the varicose veins produced mild to moderate difficulty. Some of the reports of his VA examination in the 1990's indicate the presence of edema, and other reports do not indicate the presence of this condition. The report of his VA medical examination indicates the presence of veins that were as much as 2-3 centimeters in diameter and the report of the January 1994 examination indicates the presence of enlarged saphenous veins on both sides. The report of the March 1998 examination shows venous changes of the feet, but Trendelenburg's and Perthes tests in at the September 1994 showed no evidence of deep vein involvement. After consideration of all the evidence, the Board finds that the veteran's bilateral varicose veins are manifested primarily by varicosities above and below the knees, occasional edema, and occasional stasis venous changes of the feet. The evidence does not demonstrate involvement of deep circulation on Trendelenburg's and Perthes tests, persistent edema or subcutaneous induration, persistent stasis pigmentation or eczema, or persistent ulceration. Under the circumstances, the Board finds that the evidence does not support the assignment of an evaluation in excess of 50 percent for the bilateral varicose veins under the criteria of diagnostic code 7120, effective prior to January 12, 1998. Nor does the evidence support the assignment of separate evaluations in excess of 40 percent for the varicose veins of the right or left legs under the criteria of this diagnostic code, effective as of January 12, 1998. The preponderance of the evidence is against the claim for an increased evaluation for bilateral varicose veins, rated as 50 percent disabling prior to January 12, 1998; and evaluated as 2 separate 40 percent ratings of the right and left legs as of January 12, 1998. Hence, the claim is denied. II. Entitlement to a Total Rating for Compensation based on Unemployability A. Factual Background A review of the record show that service connection is currently in effect for varicose veins of the right leg, rated 40 percent; varicose veins of the left leg, rated 40 percent; bilateral non-suppurative otitis media with otitis externa and hearing loss, rated 20 percent; residuals of pilonidal cyst, rated zero percent; and a fungus condition of the hands and groin, rated zero percent. The combined rating for the service-connected disabilities is 80 percent. The medical evidence regarding the veteran's bilateral varicose veins was discussed in Section I of this decision and will not be reiterated in this Section of the decision. The record, including medical reports received with Social Security Administration (SSA) documents in 1993, also shows that the veteran was treated and evaluated for various conditions in the 1980's and 1990's. The more salient medical reports with regard to the veteran's claim for a total rating for compensation purposes based on unemployability are discussed in the following paragraphs. A report from Dr. Roberts, dated in January 1987, notes that the veteran has coronary heart disease and that he sustained an acute inferoposterior myocardial infarction in 1967. This report notes that the veteran got along well until early 1982 when he had an episode of prolonged chest pain and was hospitalized with what was probably a small apical and high posterior infarction. He recovered and returned to work as an insurance agent, and continued to work productively until 1986 when, with increasing symptoms of shortness of breath and chest tightness, he retired from work. Dr. Roberts opined that the veteran's work as an insurance agent was emotionally stressful and recommended that he not return to this work. A document from the SSA dated in March 1987 shows that the veteran was found entitled to SSA disability benefits for disability that began in May 1986. The primary diagnosis was chronic ischemic heart disease and a secondary diagnosis was peripheral vascular disease. On an application for increased compensation based on unemployability dated in October 1991, the veteran reported that he had last worked full time in May 1986, that he had work experience as an insurance agent, and that he had 12 years of education. He reported that he could not stand or walk for lengthy periods because his legs had to be elevated throughout the day. Private medical reports of the veteran's treatment and evaluations in the 1990's show that he has various non- service-connected disabilities, including coronary heart disease. The veteran underwent a VA skin examination in September 1991. He had slight scale and erythema and intertriginous areas in the groin, bilaterally between the scrotum and the thigh on either side. The remainder of the examination revealed no evidence of fungus infection. The diagnosis was tinea cruris. The veteran underwent a VA skin examination in December 1997. There was no abnormalities of the hands. There was mild dryness and scaliness noted of the feet. The toenails were not involved. Drainage or erythema were not found. There was mild redness in the groin area, but no eruption. The was scarring at the end of the spine consistent with his diagnosis of pilonidal cyst. There were no areas of tenderness or induration. The impressions were tinea manus, tinea cruris, and tinea pedis, all dormant. On a VA audiological evaluation in December 1997, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 55 65 65 LEFT 30 60 65 70 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 64 percent in the left ear. It was noted that the veteran had complaints of tinnitus since he sustained loss of hearing in the early 1950's. The diagnosis was sensorineural bilateral hearing loss. It was noted that he had normal hearing at the lower frequencies, sloping to a mild loss at the middle range, and severe loss in the higher frequencies. The veteran underwent VA medical examinations in 1999. At a VA medical examination in February 1999 to determine the severity of his varicose veins, discussed in Section I of this decision, and at a VA skin examination at that time he was found to have a fungal rash involving the hands and feet. The extent of the rash included the feet, toes, and heels, and to a much lesser extent, the hands and fingers. The nails were not involved. The diagnosis was dermatophytosis of the upper and lower extremities with the feet worse than the hands. The examiner opined that the rash produced very mild difficulty and should not interfere with his ability to work. An addendum to the reports of these examinations dated in April 1999, notes that the veteran's claims folder was reviewed and that the opinions in those reports remained unchanged. On a VA audiological evaluation in March 1999, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 55 55 65 LEFT 30 60 65 65 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 60 percent in the left ear. It was noted that the veteran had tinnitus that began in the early 1950's. The veteran underwent a VA medical examination in March 1999 to determine the severity of his pilonidal cysts. He gave a history of pilonidal cysts that were drained in the past. He reported being bothered by recurring draining cysts about every 3 to 4 months. There was no rectal bleeding. Rectal examination did not reveal any external or internal hemorrhoids. Tenderness, blood or masses of the rectum were not found. There was a well-healed scar at the site of the pilonidal abscess drainage site. The diagnosis was history of pilonidal abscess. B. Legal Analysis The veteran's claim for a total rating for compensation purposes based on unemployability is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a). The veteran's service-connected disabilities are the varicose veins of the right and left legs, each rated 40 percent disabling and discussed in Section I of this decision; bilateral non-suppurative otitis media with otitis externa and hearing loss, rated 20 percent; residuals of pilonidal cyst, rated zero percent; and a fungus condition of the hands and groin, rated zero percent. The combined rating for the service-connected disabilities is 80 percent which makes him eligible for a total compensation rating based on unemployability. 38 C.F.R. § 4.16(a). Legal authority provides that total disability ratings for compensation may be assigned where the schedular ratings for the service connected disabilities are less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. This includes consideration of such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The record shows that the veteran has 12 years of education and work experience as an insurance agent. He has not worked since May 1986 and the evidence indicates that he stopped working due to a non-service-connected heart disease. The symptoms of a non-service-connected disability may not be considered in the determination of the veteran's entitlement to a total rating for compensation purposes based on unemployability. 38 C.F.R. § 4.14. Nevertheless, the veteran may be found entitled to such a rating if his service-connected disabilities are of sufficient severity to render him unemployable without consideration of his nonservice-connected disabilities. The report of the veteran's VA audiological evaluation in March 1999 shows that he has an average pure tone threshold (at 1,000, 2,000, 3,000, and 4,000 hertz) of 46 decibels in the right ear with a 68 percent speech recognition ability that equates to acuity level IV, and the left ear average pure tone decibel threshold (at the same frequencies) is 55 with a 60 percent recognition ability that equates to acuity level VI. Acuity levels of IV and VI combined to support a 20 percent evaluation for bilateral hearing loss under the criteria for the evaluation of ear disorders, effective prior to and as of June 10, 1999. 38 C.F.R. § 4.85, Tables VI and VII. Essential similar results were found at a VA audiological evaluation in 1997. The evidence indicates that the veteran has tinnitus, but service connection is not in effect for this disability. (Nor would an additional 10 percent rating for constant tinnitus affect the combined rating of 80 percent.) The evidence does not indicate the presence of any other abnormalities of the ears. While the evidence shows that the veteran has hearing impairment, it also shows that he has normal hearing in the lower frequencies and that this impairment is not of such severity as to present any significant industrial impairment. The evidence indicates that the veteran's pilonidal cyst is manifested primarily by a scar and does not show symptoms to support a compensable rating or ratings for this scar under the criteria of 38 C.F.R. § 4.118, Codes 7803, 7804, and 7805. Hence, this condition is asymptomatic and does not interfere with his ability to work. The evidence indicates that his fungus condition is mild. The evidence does not indicate the presence of exfoliation, exudation or itching involving an exposed surface of the skin that indicates a worsening skin condition. 38 C.F.R. § 4.118, Codes 7806 and 7813. The examiner who saw the veteran at his February 1999 VA skin examination opined that the skin condition did not interfere with his ability to work. As noted in Section I of this decision, the examiner who saw the veteran at the February 1999 VA medical examination to determine the severity of his varicose veins opined that the varicose veins did not significantly interfere with his ability to work. The examiner opined that the veteran could do numerous occupations that gave him breaks from prolonged standing in an upright position. The evidence shows that the veteran is entitled to SSA disability benefits, and this factor is pertinent to his claim for a total VA rating for compensation purposes based on unemployability. The decision of the SSA, however, is not controlling on VA. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this regard, the SSA awarded disability benefits to the veteran primarily due to his non-service-connected heart disease. The Board recognizes the veteran's statements to the effect that he cannot stand or walk for prolonged periods, and that his legs have to be elevated throughout the day, but the overall evidence does not show that his service-connected disabilities are sufficiently disabling to render him unable to secure or follow a substantially gainful occupation. After consideration of all the evidence, the Board finds the veteran's service-connected disabilities produce significant disability, primarily the varicose veins, but do not prevent him from performing work, manual or sedentary, consistent with his education and work experience, as long as he has the opportunity to elevate his legs periodically. While the evidence indicates that he is unemployable, it is the manifestations of his non-service-connected heart disease that produce the additional disability that renders him unemployable. The percentage ratings assigned for the service-connected conditions are recognition that there is difficulty in obtaining or retaining employment, but this factor is considered in the assigned schedular ratings. 38 C.F.R. § 4.1 (1999). The preponderance of the evidence is against the claim for a total rating for compensation purposes based on unemployability, and the claim is denied. Since the preponderance of the evidence is against the claims for an increased evaluation for the varicose veins and a total rating for compensation purposes based on unemployability, the benefit of the doubt doctrine is not for application with regard to these claims. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased evaluation for bilateral varicose veins, rated as 50 percent disabling prior to January 12, 1998; and evaluated as 2 separate 40 percent ratings of the right and left legs as of January 12, 1998, is denied. A total rating for compensation purposes based on unemployability is denied. J. E. Day Member, Board of Veterans' Appeals