14-04 546
14-04 546
| Board of Vet. App. | Nov 12, 2017Background
- Veteran served on active duty Aug 1966–Oct 1967 and appealed a December 2012 RO rating decision for bilateral varicose veins.
- Claim for increase filed April 11, 2012, establishing the review period starting April 11, 2011; Travel Board hearing held March 2017.
- Relevant medical evidence: April 2012 duplex scan (thrombosed greater/lesser saphenous left; no acute DVT), November 2013 VA exam (interview and physical exam), and private treatment notes from UC Davis (2014–2015) documenting persistent edema, stasis pigmentation/bronzing, and eczema-like changes.
- Veteran reported episodes he believed were deep vein thrombosis in 2000 and a 2012 thrombosis; he described daily swelling, burning, stiffness, and prior thrombosis symptoms that later resolved.
- Diagnosis and ratings were evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7120 (varicose veins): 40% for persistent edema with stasis pigmentation or eczema; higher ratings require persistent ulceration, subcutaneous induration, or massive board-like edema.
Issues
| Issue | Plaintiff's Argument (Veteran) | Defendant's Argument (VA/Board) | Held |
|---|---|---|---|
| Whether rating >40% warranted for left varicose veins during appeal period (pre- and post-4/1/2015) | Symptoms (edema, pigmentation, burning, prior thrombosis) support a higher rating and inclusion of DVT/thrombosis effects | Medical record does not document subcutaneous induration, persistent ulceration, or massive board-like edema required for >40%; DVT not shown during appeal period and cannot be separately rated if duplicative | 40% granted for left leg for entire appeal period; no higher rating warranted |
| Whether rating >40% warranted for right varicose veins during appeal period (pre- and post-4/1/2015) | Right-leg symptoms mirror left and justify higher rating | Same as left: record documents persistent edema, pigmentation, eczema but not criteria for >40% | 40% granted for right leg for entire appeal period; no higher rating warranted |
| Whether separate/additional ratings (e.g., for DVT/thrombosis or other diagnostic codes) are warranted | Veteran contends rating schedule fails to account for DVT/thrombosis sequelae and thrombosis occurred in 2012 | April 2012 and 2013 exams show no acute DVT during appeal period; symptoms overlap with varicose veins and separate rating would impermissibly pyramid | No separate rating for DVT/thrombosis or other vein codes; duplicate symptoms barred by pyramiding rule |
| Whether staged ratings are required for periods of greater severity | Veteran asserted fluctuating symptoms and more frequent swelling justify staged increases | Record does not show any period with symptoms meeting criteria above 40% that would require staged ratings | No staged ratings; uniform 40% rating throughout appeal period |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (guidance on adequacy of VA examinations when VA undertakes an exam)
- Sickels v. Shinseki, 643 F.3d 1362 (presumption of competence for VA medical examiners absent clear contrary evidence)
- Francisco v. Brown, 7 Vet. App. 55 (focus on present level of disability for increases)
- Schafrath v. Derwinski, 1 Vet. App. 589 (review of entire history in disability evaluations)
- Hart v. Mansfield, 21 Vet. App. 505 (staged ratings doctrine)
- Fenderson v. West, 12 Vet. App. 119 (consideration of staged ratings)