Citation Nr: 1527327 Decision Date: 06/26/15 Archive Date: 07/07/15 DOCKET NO. 09-18 980A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for varicose veins of the left leg. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from March 1968 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of this matter is with the RO in Oakland, California. In May 2015, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. FINDINGS OF FACT Varicose veins of the left leg were not shown in active service or for many years after, and the probative medical opinion addressing a nexus between the diagnosed varicose veins of the left leg and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for varicose veins of the left leg are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a July 2007 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent October 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained a VA medical opinion with respect to the claim on appeal. While the Veteran was not provided an actual physical examination, the Board finds that the October 2013 VA medical examiner made all the required clinical findings and rendered the requested opinions along with sufficient rationales. 38 C.F.R. § 3.159(c)(4) (2014); Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, it is within the province of a medical professional to make a determination that the evidence available is sufficient to provide the requested opinion. Thus, the Board finds that the October 2013 VA medical opinion is adequate with regard to the issue decided herein. Therefore, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's November 1971 separation examination report shows that the Veteran's vascular system and lower extremities were evaluated as clinically normal. The Veteran skin was evaluated as abnormal, noting a pigmented nevus of the left lower leg. In addition, the examiner provided additional detailed findings pertaining to oral gum surgery, acne, crooked second toe, and a traumatic scar on the right foot. However, there is no indication that the examiner observed that the Veteran had varicose veins of the left leg, or that the Veteran complained of such condition or symptoms thereof. Private medical records from 1980s shows that the Veteran reported he had progressively enlarging varicosities for the past 15 years, as shown in 1986, and a 1982 private medical notes that the Veteran had an obvious, rather large, venous abnormality over the mid tibial area, left. While the Veteran indicated that had been gradually enlarging over more than ten years and that as long as ten years ago, and that it bled a small amount on one or two occasions, he never mentioned or suggested that condition occurred during, had its onset in service, or was related to service. In a September 2008 notice of disagreement, the Veteran asserted that while in service he was a medical service specialist at an Air Force Base Hospital in California where he assisted doctors on a daily basis. He stated that on a daily basis he walked up and down a long corridor, and that standing for long periods of time and walking on cement floors for long periods of time was normal. He indicated that he complained about pain in his legs at that time. The Veteran asserted that when he was given a separation physical, the doctor stated very clearly that he had a varicose vein condition at that time and that he would need future surgery. In 1972, he had his first incident from a bleeding vein. He further contends that his statements, as recorded by private physicians in 1982, show that at that time, the Veteran dated the onset of his varicose vein condition to 10 years earlier, which would be 1971. In a November 2008 statement, M.C.C. stated that he witnessed a bleeding wound on the Veteran's leg in July 1972. In December 2008, the Veteran submitted a VA form 21-4138 from A. Marbeth, M.D. noting that the Veteran's diagnosed venous insufficiency, varicose veins, had their onset in 1971. That doctor remarked that the Veteran's chronic problem with varicose veins was predisposed on a genetic basis and it certainly was exacerbated by his work duties while in the United States Air Force. In October 2013, a VA medical opinion was obtain from a VA physician who indicated that a review of the available record provided sufficient information to provide an opinion and that an examination would likely provide no additional relevant evidence. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The examiner provided a rationale in which relevant medical evidence, lay statements, and internet articles submitted by the Veteran were discussed. The examiner discussed that the service medical records did not note a condition of varicose veins or treatment for varicose veins. Specifically, the Veteran reported that he received advice from the doctor who evaluated him at George Air Force Base that he had a varicose vein condition, and that the Veteran needed future surgery. Nevertheless, no documentation about that appears in the Veteran's records, which prevented the doctor from validating that statement with a high degree of certainty. The Veteran's current varicose veins condition was formally diagnosed on 1980. There were three episodes described in the documents reviewed, when two persons witnessed some bleeding from the Veteran's left leg in 1972 and 1973. There was no history of formal clinical evaluation of those episodes to confirm that the cause was really varicose vein issues. The Veteran's main occupation after military service was in a production line work involving moving heavy circuit boards into copper plating tanks, putting him in high risk for venous problems due to congestion. Lastly, varicose veins condition were formally diagnosed and treated a few years, around 10 years, after Veteran was discharged from active service. The examiner opined that the Veteran's condition of left leg varicose veins was not due to the symptoms of skin nevus noted on the separation examination. That examiner stated that skin nevus was not a cause of varicose veins. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim for service connection for varicose veins of the left leg. It is the responsibility of the Board to assess the credibility and weight to be given to evidence. Wood v. Derwinski, 1 Vet. App. 190 (1992). On the basis of service treatment records alone, varicose veins were not affirmatively shown to have been present during service as there was no complaint, finding, history, treatment, or diagnosis of varicose veins. Therefore, service connection under 38 U.S.C.A. §§ 1110 and 38 C.F.R. 3.303(a) is not warranted. The examiner who performed the November 1971 separation examination was very detailed in his findings. The lower extremity and vascular examination were normal, with the exception of a scar on the foot and a nevus on the left lower leg. The Board finds that if the Veteran had varicose veins that it is reasonable to expect that the November 1971 examiner would have observed them and also included them in the detailed findings. The examiner obviously observed that the Veteran had pigmented nevus, left lower leg, a crooked second toe, and a traumatic scar on the right foot, and it would seem very reasonable that the examiner would have observed varicose veins and noted them also, if they had in fact been observed at that time. Furthermore, there is absolutely no indication that the Veteran complained of any left lower extremity varicose veins. In addition, in the accompanying report of medical history, the Veteran stated that his health was good and denied having cramps in the legs. Also varicose veins are not listed as a chronic disease in 38 C.F.R. § 3.309(a) and are not subject to service connection based on the one year presumption for manifestations of the disability following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a) (2014). Therefore, the theories of service connection based on chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (continuity of symptomatology avenue to service connection is available only for chronic diseases enumerated by regulation). As for service connection on the basis of the initial diagnosis after service, considering all the evidence, the evidence of record first notes that the Veteran had varicose veins in 1982, more than 10 years after service. A lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board is aware that the Veteran as a lay person is competent to describe varicose veins. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (varicose veins are capable of lay observation). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the extent the Veteran suggests that symptoms of bleeding after service were evidence of varicose veins and that he has had the same symptoms since service, the statements are not a statement of fact, rather the statements are inferences and constitute the Veteran's opinion, but such an opinion on a causal relationship requires that the Veteran have specialized education, training, or experience, which has not been factually established. Moreover, the Board finds that the weight of the competent evidence does not attribute the Veteran's varicose veins of the left leg to active duty, despite his contentions to the contrary. As is true with any piece of evidence, the credibility and weight to be attached to opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Factors for assessing the probative value of a medical opinion are the physician's access to the evidentiary record and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physician actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. Owens v. Brown, 7 Vet. App. 429 (1995) (VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. Reonal v. Brown, 5 Vet. App. 458 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993) (probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, knowledge and skill in analyzing the data, and the medical conclusion reached). A medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight. An opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Bloom v. West, 12 Vet. App. 185 (1999). In this case, the Board finds that the December 2008 statement from the Veteran's private physician, Dr. Marbeth supporting the claim for service connection is of low probative value as the physician did not address that there is absolutely no indication that the Veteran had varicose veins of the left leg in service, what evidence was evaluated to determine that the onset of the Veteran's varicose veins was in 1971, and the rationale and basis for the conclusionary statement that the Veteran's chronic problem with varicose veins was predisposed on a genetic basis and it was exacerbated by his work duties while in the United States Air Force. Further, Dr. Marbeth never indicated that the Veteran's post-service employment was considered. Thus, Dr. Marbeth's opinion is of low probative value because it is not supported with any rationale and does not show consideration of the full record of evidence. In contrast, the Board places significant probative value on the October 2013 VA medical opinion undertaken to specifically address the issue on appeal. After a thorough review of the file, with notations of specific evidence considered, the examiner opined that the Veteran's varicose veins of the left leg were less likely than not related to or incurred in service. The examiner further opined that the Veteran's condition of left leg varicose veins are not due to the symptoms of skin nevus noted on his discharge examination as skin nevus is not a cause of varicose veins. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or relied on an inaccurate factual history. Moreover, the examiner had the requisite medical expertise to provide a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. In addition, the VA examiner clearly set forth the rationale and basis for the opinion, consistent with the evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. Lastly, while the Veteran has submitted various internet articles regarding varicose veins in support of his contentions, the Board finds that evidence is not probative with regard to this claim because it does not specifically address whether the Veteran has varicose veins of the left leg that are related to service. Sacks v. West, 11 Vet. App. 314 (1998); Mattern v. West, 12 Vet. App. 222 (1999). Moreover, the literature only provides generalized information concerning the symptoms, treatment, and prevention of varicose veins. While those general findings can provide important support when combined with an opinion of a medical professional, no medical opinion addressing the specific facts of this case has been presented in conjunction with those articles. Mattern v. West, 12 Vet. App. 222 (1999) (pertinent medical literature, in combination with a medical nexus opinion, is considered probative evidence in support of a claim for service connection). Therefore, the Board finds the articles are of low probative value and are outweighed by the competent medical opinion of record. Accordingly, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has varicose veins of the left leg that are related to service. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for varicose veins of the left leg is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs