Citation Nr: 0810647 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-05 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for right leg varicose veins. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active service from January 1990 to August 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied service connection for varicose veins, moderately severe right lower leg. In August 2007, the veteran testified during a hearing at the RO before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT With resolution of the benefit of the doubt in the veteran's favor, right leg varicose veins are shown to be etiologically related to his service. CONCLUSION OF LAW Varicose veins of the right leg were incurred due to active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159(c). Considering the claim for service connection for right leg varicose veins in light of the above, and in view of the Board's favorable disposition of the claim, the Board finds that all notification and development action needed to render a fair decision on the claim for service connection for right leg varicose veins has been accomplished. Merits of the Claim The veteran seeks service connection for right leg varicose veins. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance and the appeal will be allowed. The benefit of the doubt rule provides that the veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the veteran prevails in his claims when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran has asserted that his varicose veins are related to jumps that he performed while in parachute training in service. He stated during his August 2007 Board hearing that in the second week of jump school, he had a leg injury and went to the clinic. He was put on profile for a week and was disqualified from the training. He did not receive treatment for his varicose veins while in service because he did not notice that he had them, as they were a very small protrusion coming out of his right calf. He testified that the varicose veins did not start getting bad until about 2001 or 2002 and that is when he began to receive treatment. The veteran's service personnel records show that the veteran took a three week training course from May 25, 1990, to June 17, 1990, in airborne training and that he did not complete the course. Post-service, a January 2002 VA examination report shows the veteran reported that he had varicose veins in his right leg around 1996, but nothing was done regarding treatment. About a year later, he stated that he started to have pain in the lower leg and the varicose veins started to get bigger. About a year ago, the varicose veins started to bother him and he now had chronic pain in the right leg. A diagnosis of varicose veins, moderately severe, in the right lower leg, was rendered. VA treatment records dated from June 2002 to July 2007 show a diagnosis of varicose veins of the right leg. Therefore, the veteran is shown to have a current diagnosis of varicose veins, as initially shown in the January 2002 VA examination report. The remaining question is whether the veteran's current right leg varicose veins is related to his service. In a January 2003 statement, the author, whose signature is illegible, states that the veteran was seen by the author at the VA Medical Center (VAMC) since June 2002 when he presented with severe pain in his right leg. The author noted that the veteran's duties in the service included being a parachuter. The author also stated that the veteran had no other history of trauma other than the parachuting during his military service that would have caused the severe varicosities. The author stated that in his medical opinion, the varicose veins in the right leg were a result of trauma the veteran sustained while parachuting. The author also stated that parachuting was a well known cause of varicosities. During the August 2007 Board hearing, the veteran testified that the author of the January 2003 statement was Dr. C. from the Cumberland VAMC. On January 2004 VA examination, the VA physician noted that he had reviewed the veteran's claims file. The physician stated that the veteran's service medical records and discharge examination were negative for varicose veins. He also noted that the first indication of a diagnosis of varicose veins was in January 2002. The VA physician stated that progression of the varicose vein is usually slow and it was as likely as not that the onset of the varicose vein in the right leg started a few years before examination of January 2002. However, the VA physician stated that it was not possible to state the exact time of the onset of the varicose veins, but the veteran had no varicosity in service. An October 2007 letter from a private physician, R.O., Jr., M.D., states that the veteran was a patient that he had seen the last couple of months. He stated that after review of the veteran's records, it was at least as likely as not that the veteran had varicose veins, which were aggravated while he was in military service. The above medical opinions are the only medical opinions of record regarding the etiology of the veteran's varicose veins and the opinions support a finding that the veteran's varicose veins are related to the veteran's parachute training in service. The January 2003 and October 2007 opinions were based on the physicians' prior treatment of the veteran and his subjective reports of the parachute jumping. The October 2007 opinion was also based on review of the veteran's medical records. Further, although the January 2004 VA physician did not give an opinion as to the onset of the veteran's varicose veins, the VA physician did state that the progression of varicose veins is slow and the veteran's varicose veins started a few years prior to his initial 2002 diagnosis. Hence, the January 2004 VA physician's opinion does not contradict the opinions of the January 2003 and October 2007 physicians. Rather, the January 2004 physician's opinion is corroborative of the other medical opinions as the physician is stating that although an injury occurred in service, the varicose veins might not have presented in service, as the progression of the varicose veins is slow. Further, the January 2004 VA physician's opinion was based on a review of the veteran's claims file. The medical opinions above were all rendered by physicians. Hence, the physicians' opinions are competent medical evidence showing a nexus between the veteran's current right leg varicose veins and his service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no other medical opinion evidence of record to contradict the January 2003 and October 2007 opinions, and VA adjudicators are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Therefore, the only medical opinion evidence supports a finding that the veteran's current varicose veins are related to his parachute jumps in service. Further, the veteran's service personnel records support the veteran's assertions that he was injured while in airborne training, as he was not able to complete his airborne training course, which he states is due to injury of the leg. Hence, the medical opinion evidence is probative evidence supporting the veteran's claim for service connection for right leg varicose veins. Thus, having carefully considered the veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). ORDER Service connection for right leg varicose veins is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs