Citation Nr: 1031265 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 00-07 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for bilateral varicose veins. REPRESENTATION Appellant represented by: Roger Rutherford, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1975. He thereafter was a member of the Virginia Army National Guard (VaANG) from August 1977 to August 1987. There is no showing that he had any active duty during that period, nor does it otherwise appear to be in issue. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2004, the Board denied entitlement to service connection for bilateral varicose veins. The Veteran appealed the case to the U.S. Court of Appeals for Veteran's Claims (Court or CAVC). A memorandum decision was received in July 2007, and the Court entered Judgment that same month, vacating the Board's June 2004 decision as to that issue, and remanding the claim to the Board for readjudication consistent with the memorandum decision. An additional issue of entitlement to a waiver of recovery of an overpayment of pension benefits was affirmed. In December 2008, the Board remanded the Veteran's claim for further development in accordance with the Court's 2007 Judgment. The claim was remanded again for further medical opinion in September 2009. The claim has now been returned for further appellate consideration. FINDINGS OF FACT 1. The Veteran has severe varicose veins, right and left lower extremities, involving the greater and the less saphenous systems. 2. Obvious and unequivocal evidence shows that the Veteran's bilateral varicose vein disorder existed prior to his enlistment into active service. 3. Obvious and unequivocal evidence shows that the Veteran's preexisting bilateral varicose vein disorder did not increase in severity during or as a result of active service. CONCLUSION OF LAW The Veteran's bilateral varicose veins clearly and unmistakably existed prior to active service, and clearly and unmistakably were not aggravated by service, and the presumption of soundness at entry is rebutted. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The United States Court of Appeals for Veteran Claims (Court) in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and that the VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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; (3) inform the Claimant about the information and evidence the Claimant is expected to provide; and (4) request or tell the Claimant to provide any evidence in the Claimant's possession that pertains to the claim, or something to the effect that the Claimant should provide any evidence in his possession pertaining to the claim. VA satisfied this duty by means of letters to the Veteran from the RO dated in January 2001, August 2001, and March 2009. By means of these documents, the Veteran was told of the requirements to establish service connection, of the reasons for the denial of his claim, of his and VA's respective duties, and he was asked to provide information in his possession relevant to the claims. In addition to providing the VCAA laws and regulations, additional documents of record, to include the rating decisions of record, the SOC and SSOCs have included a summary of the evidence, all other applicable law and regulations, and a discussion of the facts of the case. Such notice sufficiently placed the Veteran on notice of what evidence could be obtained by whom and advised him of his responsibilities if he wanted such evidence to be obtained by VA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the claim was initially denied prior to the enactment of VCAA, after passage of the VCAA, the RO sent the Veteran the above mentioned VCAA letters which included discussion of the VCAA laws and regulations. A VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. However, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. After receipt of the content- complying letters, his claim was readjudicated based upon all the evidence of record as evidenced by June 2009 and December 2009 SSOCs. There is no indication that the disposition of his claims would not have been different had he received pre-AOJ adjudicatory notice pursuant to section 5103(a) and § 3.159(b). Accordingly, any such error is nonprejudicial. See 38 U.S.C.A. § 7261(b)(2). Also see Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the March 2009 letter mentioned above. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009). Numerous VA examinations were conducted to determine the etiology of currently diagnosed bilateral varicose veins, to include evaluations in August 2002 and May 2009. Moreover, a November 2009 addendum was obtained, as was a Veterans Health Administration (VHA) opinion in 2010. The examiner based their decisions on review of the file, the Claimant's medical history, and a recently conducted physical examination report. The Board has determined that the evidence of record is sufficient to make a decision. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2009; 38 C.F.R. § 3.159 (2009). Pertinent Laws and Regulations Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). This rule does not mean that any manifestations in service will permit service connection. To show 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". When the disease entity is established, there is no requirement of evidentiary showing of continuity. 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) (2009). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Aggravation of Preexisting Disability For purposes of 38 U.S.C.A. §§ 1110 and 1131, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2009). The plain language of this statute provides that the presumption of soundness is rebutted only if clear and unmistakable evidence establishes both that (1) the condition existed prior to service and (2) the condition was not aggravated by service. A Claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 3-2003 (July 16, 2003); see generally Cotant v. Principi, 17 Vet. App. 116, 124 (2003) (CAVC raised the question of the proper interpretation of sections 1111 and 1153 and the validity of the pertinent part of 38 C.F.R. § 3.304(b) under that interpretation). A Veteran employed in the active military service for six months or more shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before examination, acceptance and enrollment. 38 U.S.C.A. § 1132 (West 2002 & Supp. 2009). The CAVC has noted that the implementing regulation for the forerunner of 38 U.S.C.A. § 1111, which was VA Regulation 1063 (1946), stated that the term "clear and unmistakable" means obvious or manifest. Cotant, 17 Vet. App. at 127-128 (CAVC cited the definition set forth in Paragraph D of VA Regulation 1063). The CAVC has stated that the word "unmistakable" means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988); cf. Crippen v. Brown, 9 Vet. App. 412, 418 (1996) (stating that "clear and unmistakable error" means an error that is undebatable); Russell v. Principi, 3 Vet. App. 310 (1992) (en banc) ("The words 'clear and unmistakable error' are self- defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed."). The CAVC has stated that the standard of proof for rebutting the presumption of soundness is not merely evidence that is cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable .... [and] the question is not whether the Secretary has sustained a burden of producing evidence, but whether the evidence as a whole, clearly and unmistakably demonstrates that the injury or disease existed prior to service. Cotant, 17 Vet. App. at 132, citing Vanerson v. West, 12 Vet. App. at 261. If a disability is found to have preexisted service, then service connection may be predicated only upon a finding of aggravation during service. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). The Federal Circuit Court (Federal Court) has held that a corollary to the Secretary's definition of "disability" in 38 C.F.R. § 4.1 is that an increase in disability must consist of worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). The Federal Court stated: "[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability. Davis, 276 F.3d at 1345; see Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994) (Court held that 38 U.S.C.A. § 1153 requires some increase in the severity of the preexisting condition causally related to military service). Competency and Credibility The Veteran can attest to factual matters of which he had first- hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, her statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Thus, while the Veteran is competent to report what comes to her through her senses, she does not have medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the Veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he/she is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Barr, supra. The issue does not involve a simple diagnosis. Jandreau and Woehlaert, supra. The Veteran is not competent to provide more than simple medical observations. The current diagnosis may not be diagnosed via lay observation alone and the Veteran is not competent to provide a complex medical opinion regarding the etiology of the claimed disability, whether there was an increased in severity during service, or whether any increased was due to the natural progress of the disease. Barr, supra. Thus, the Veteran's lay assertions are not competent or sufficient. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background It is the Veteran's contention that he was treated for his varicose veins at Fort Dix, New Jersey, in 1973, and at Fort Bragg, North Carolina, in 1974. The file does not contain records of this treatment or of surgery which was reportedly to be conducted. The November 1972 Report of Medical Examination for enlistment rated the Veteran's vascular system and legs as normal. The service treatment records (STRs) contain one entry dated in November 1975 when the Veteran reported that he had an eight year history of varicose veins of the legs with pain and heaviness especially at the end of the day. Symptoms were worse with physical training. The Veteran denied any history of phlebitis, and he said that he had never worn support hose. He was to undertake a trial of support hose. No other pertinent findings seem to be reported. The STRs do not contain a Report of Medical Examination for release from active duty. The Veteran enlisted in the National Guard (VaANG) after his release from active service. The July 1977 Report of Medical Examination for enlistment in the VaANG notes no pre-entry disorders except a scar on his left forearm and left ankle. He denied cramps in his legs. The Veteran's vascular system and lower extremities was evaluated as normal. The Veteran received a periodic examination in 1981 as part of his VaANG membership. The June 1981 Report of Medical Examination notes "varicose veins legs." The examiner did not enter any other comment. He was noted qualified for membership in the Guard. On a Report of Medical History in May 1985, it was noted that the Veteran had undergone left ankle surgery in 1972. The May 1985 Report of Medical Examination, Periodic, VaANG, reflects the Veteran's vascular system rating as abnormal, with an entry of varicose veins both thighs and lower legs, since age 13. Block 74 contains the examiner's notation of bilateral varicose veins. A January 1993 private examination report submitted by S.H.H., MD, reflects a diagnosis of bilateral varicose veins of the greater saphenous tributaries involving the lesser saphenous of the right ankle. The private physician performed a ligation and stripping of the greater saphenous vein and tributaries later in January 1993. An October 1999 report reflects that the procedure was repeated on the Veteran's right leg due to recurrent varicose veins of his right leg. Neither of this physician's reports reflects an opinion as to the etiology of the Veteran's varicose veins. An October 1998 private report by H.C.C., MD, reflects that the Veteran was examined for the Social Security Administration (SSA). The physician noted that the Veteran had at least a 10 year history of varicose veins and mentioned the 1993 surgery. The Veteran did not report any pre-active service or in active service varicose veins symptomatology. He said that he wore support stockings for a while but discontinued them because he disliked their feel. The diagnosis was varicose veins in the Veteran's right thigh. He rendered no opinion as to etiology. After perfecting his appeal, the Veteran submitted a statement to the RO in May 2000, which related that he desired consideration for a preexisting condition which was aggravated by his active service. The Veteran asserted that his active service led to the necessity for his post-active service varicose vein surgery, and he identified the private provider who performed it. In October 2000, the Veteran submitted a copy of an apparent entry in his STRs dated two weeks prior to his release from active service in November 1975. This document was already of record and is set out above. The Veteran also submitted an October 2000 statement prepared by his wife. The statement reflects the Veteran's thoughts/positions on his claim and available STRs and his wife's opinions on his claim. The Veteran, through his wife, relates that he was supposed to have varicose vein surgery prior to his leaving the Army, but his records supposedly were lost. The December 2000 VA examination report reflects that the Veteran reported a long-standing history of varicose veins and the examiner's description of the Veteran's varicose veins. The examiner did not render an opinion as to any relationship between the Veteran's varicose veins and his active military service. In an August 2001 statement, the Veteran related that the original 1975 STRs entry was prepared by the Surgery Clinic at the Army Medical Center, Fort Bragg, North Carolina, and that he retains the original. The Veteran explained that he was given the entry because his service medical records (SMRs) had been lost. In June 2002, the RO requested a VA medical review of the Veteran's claim file and an opinion as to whether his active military service aggravated his varicose veins, as defined by applicable regulations. The August 2002 VA medical review report reflects that the reviewer reviewed the Veteran's claim file, including his medical records, on several occasions. The reviewer noted the Veteran's 1975 STR entry two weeks prior to his release from active service and the recorded 8 year history of varicose veins reported therein. The reviewer also observed the treatment plan of a first-time trial of support stockings. The reviewer also referenced the 1981 and 1985 VaANG medical officials' notations of varicose veins and the 1985 VaANG recording of a reported history of varicose veins since age 13, and that the records did support the history of varicose veins since age 13. The VA reviewer opined that, in light of this evidence, it is more likely than not that the Veteran's varicose veins did, indeed, exist prior to active service, with no aggravation of the disease process during active service. The VA reviewer also opined that the Veteran's active service from 1972 to 1975 did not permanently aggravate the Veteran's varicose veins of the bilateral lower extremities beyond their normal progression. In December 2008 the Board remanded the claim for additional development. The Board sought to obtain an opinion regarding whether there was clear and unmistakable evidence that the Veteran's varicose veins preexisted his active duty, and, if so, whether varicose veins were permanently aggravated beyond the natural progression of the disorder. The requested examination was conducted in May 2009. The Veteran reported that he saw someone about his varicose veins just after going on active duty. The examiner stated that this would mean the varicose veins existed prior to his active duty because "it takes months to years to develop varicose veins," and "they don't just develop overnight." Additionally, the examiner noted that there were no reports of any treatment for varicose veins while the Veteran was in service and no evidence of continuity of care from the date of release from active duty in 1975 until 1993. Thus, he concluded "it is more likely than not that the Veteran's varicose vein problem existed prior to his entrance on active duty and there is no indication of any problems with his varicose veins caused by his active duty..." The Board remanded the claim again in September 2009 noting that the examiner did not employ a standard of review that would satisfy the clear and unmistakable standard as expressed in Cotant v. Principi, 17 Vet. App. 116 (2003). Development requested an addendum opinion from the examiner who had examined the Veteran in May 2009 to obtain an opinion regarding whether the Veteran's varicose veins clearly and unmistakably pre-existed his military service. Following the review of the claims file, the examiner was to provide an opinion determining the likely onset of the Veteran's varicose vein disorder. The examiner was to opine as to whether there was clear and unmistakable evidence that the Veteran's varicose veins pre-existed his active service beginning in 1972 and clearly and unmistakably were not permanently made worse by service. In a November 2009 addendum, the VA examiner who conducted the May 2009 evaluation noted again that there were no reports of any treatment for varicose veins while the Veteran was in service and no evidence of continuity of care from the date of release from active duty in 1975 until 1993. He noted that it was clearly and unmistakably evident that the Veteran had had varicose veins from the age of 13 and that there was no indication of any examination or treatment varicose veins while in service. He again noted that there was no continuity of treatment for varicose veins from 1975 until 1993, showing no continuity of care. In March 2010, the Board found that additional specialist opinion was necessary and a Veterans Health Administration (VHA) opinion was requested. Specifically, in the opinion request, it was noted that the VA examiner's May and November 2009 opinions were based on an incorrect version of the historical facts. While the examiner noted that the Veteran was not treated during service for his preexisting varicose veins, review of the claims file shows that he was actually treated on one occasion (in November 1975). This was shortly before service separation later that month. At the time, the Veteran reported that he had an eight year history of varicose veins of the legs with pain and heaviness especially at the end of the day. Symptoms were worse with physical training. The Veteran denied any history of phlebitis, and he said that he had never worn support hose. The VHA examiner was requested to provide opinions to the following questions: Did the Veteran's varicose veins clearly and unmistakably preexist his military service? Is there clear and unmistakable evidence that the Veteran's varicose veins preexisted his active service beginning in 1972 and clearly and unmistakably were not permanently made worse by service? (The examiner should specifically address the November 1975 inservice treatment record summarized above.) If there is no indication that there was any worsening of the varicose veins during service, that too should be set out. In an April 2010 response, a VA examiner (staff surgeon in the Department of Surgery at a VA facility) provided a history of the Veteran's varicose veins. He noted that the Veteran was in service from 1972 through 1975 and subsequently in the National guard in the 1980s. The examiner noted that near the time of the Veteran's discharge, it was noted that he had an 8 year history of bilateral varicose veins and it was recommended that he wear support stockings. One mention was made earlier in his period of duty that he experienced pain and cramping in his legs which the examiner noted was a common complaint by those with symptomatic varicose veins. He added that no exam mentioned finding varicosities, however. The examiner noted that subsequent exams out of service showed severe bilateral varicosities, to include in 1985, 1993, and 1999. The VHA examiner opined that it was likely that the Veteran had varicosities when he entered service and that they dated from the age of 13. He added the following in support of his opinion. The fact that these varicosities occurred on both legs, as noted by other medical providers outside the service, rather than developed on one leg gives weight to the likelihood they are developmental in etiology, related to an inherited abnormality of venous structure such as the valves. This would give weight to his claim they dated from the age of 13, and would therefore have been present on his admission to the service in 1972. Varicosities that occur only on one leg, as is more often the case typically have a clear antecedent event such as a fracture, infection deep vein thrombosis or other injury. I don't believe the time in the service aggravated the condition of the varicosities. The fact they received only passing mention near the time of discharge indicates they were not a problem. During the period they would have deteriorated "normally." Analysis The primary issue in this case is whether the Veteran's bilateral varicose veins preexisted service, and, if so, whether this condition was aggravated beyond the natural progression during the Veteran's period of active service from 1972 to 1975. In this case, the Veteran is not contesting or denying STRs entries or other evidence to the effect that he has a medical condition which existed prior to service. Instead, he has requested consideration on the basis of aggravation of a preexisting condition. Although that is the posture of the case, the Board emphasizes that the Board resolves this determinative issue on the basis of the medical evidence of record, rather than on his statements. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). The Board finds that the VHA specialist's report from April 2010, with the opinion as summarized above, and the other opinions on file, is the evidence most probative to the etiology of the Veteran's bilateral varicose veins. The opinion is based on a review of the complete medical records, to include review of VA evaluation reports of record in 2002 and 2009. Thus, it takes into account any medical evidence in favor and against the Veteran's claim, and makes references to specific physical findings set forth throughout the medical record. Moreover, the VHA specialist with the other examiners employed a standard of review that would satisfy the clear and unmistakable standard. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for varicose veins. Specifically, the Board finds that the evidence of record is convincing that by a clear and unmistakable standard, the Veteran had varicose veins prior to entering active service and that they did not increase in severity during his active military service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2009); VAOPGCPREC 3-03. As set forth above, varicose veins are not noted on the veteran's 1972 Report of Examination for Enlistment as existing at the time of examination. Thus, the evidence of record must establish this fact by clear and mistakable evidence. Id. A VA medical expert, at the request of the Board, conducted a review of the Veteran's claim file to assess the matter. The examiner opined that the Veteran's varicose veins did exist prior to his active service and that they were not aggravated therein. It was specifically noted by the VHA expert that the Veteran gave a medical history that predated his military service. Moreover, in support of his conclusion, the VHA expert pointed out that the fact that the Veteran's varicosities occurred on both legs rather than on one leg gave weight to the likelihood that they were developmental in etiology and related to an inherited abnormality of venous structure such as the valves. This, he opined, gave weight to his claim that they dated from the age of 13. The VHA expert further pointed out that varicosities that occurred only on one leg were more often the case typically of a clear antecedent event such as a fracture, infection, deep vein thrombosis, or other injury. The Board finds his opinion consistent with all the other evidence and history provided. Further, other earlier opinions specifically found that the varicose veins clearly and unmistakably existed prior to entry into service. This would be consistent with a developmental defect. The Board notes that the active service and VaANG STRs contained in the file include history reported by the Veteran. Further, restating a patient's oral history is not a valid medical opinion of etiology, Swann v. Brown, 5 Vet. App. 229, 233 (1993), and evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. Dolan v. Brown, 9 Vet. App. 358 (1996). The Board notes, however, that the VA expert's opinions reflect that he reviewed the entire record as reflected by his summarization of the Veteran's inservice and postservice medical varicose treatment history as reflected in the claims file. He specifically referred to a medical history that is consistent with all the other evidence and history provided. Thus, the Board finds that the VA expert considered the totality of the evidence, including the Veteran's recorded history, in opining that his varicose veins existed prior to his active service. There is no medical evidence in the claim file to the contrary. As concerns the VHA expert's opinion that the Veteran's active service did not aggravate his disease process during service, the Board reaches a similar conclusion. The VA expert referenced the clinical visit near to the time of the Veteran's discharge where it was noted that he had an 8 year history of bilateral varicose veins and where the non-invasive treatment in the form of support stockings was recommended. The VHA expert also noted that there was one other mention in the STRS where the Veteran experienced pain and cramping in his legs. It was noted that these were common complaints by those with symptomatic varicosities. He specifically opined that the Veteran's military service did not aggravate his varicose veins. This is clear and unmistakable evidence of no aggravation. He pointed to the fact that his varicose veins received only passing mention near the time of discharge indicating that they were not a problem. During this period, the expert stated that would have deteriorated "normally." The November 1975 entry does not suggest that surgery was imminent or was otherwise being considered. Further varicose veins were not mentioned at the time of entry into the Reserve. In testing the weight to accord this determinative opinion, the Board notes the Veteran's assertion that he was treated for varicose veins episodes in 1973 and 1974, but the STRs of those instances were lost, and that he was supposed to have surgery prior to his release from the Army. The Board also notes the 1975 entry to the effect that physical training increased the Veteran's symptoms. The Board finds that, even accepting as fact that the Veteran was treated on at least two instances for varicose veins episodes, such treatment would be evidence of continuing symptomatology in service but not evidence of increased severity of the condition. Thus, it does not materially contradict the VA expert's assessment, especially in light of the reviewer's focus on the 1975 treatment. The VA reviewer specifically referenced the first-time treatment of support stockings, and the 1975 STR entry makes no reference to surgery as a potential option. Furthermore, the next records concerning the Claimant's membership in the state National Guard do not show examination findings of varicose veins. He was evaluated as normal in 1977. This further leads to the conclusion that there was no aggravation during the period of active duty, as there were no pertinent complaints or findings at the time of that clinical evaluation. Only on later examinations were varicose veins shown, with the first mention of leg and thigh involvement, by history in 1985. There is, thereafter, no treatment established until 1993. This fact was noted by the VHA expert in 2010. Therefore, the Board discerns no reason to reject the VA expert's opinion that the Veteran's active military service did not aggravate his preexisting varicose veins. The VHA expert, a staff physician in the Department of Surgery at a VA facility, was provided the legal standard of what constitutes aggravation for VA purposes, and his review of the claim file led him to conclude that there was no aggravation. This is consistent with the other opinions at file showing no aggravation. The Board finds that clear and unmistakable medical evidence shows the Veteran's varicose veins to have existed prior to his entering active service and that his active service did not aggravate or make worse his varicose veins beyond their natural progression. Thus, the presumption of soundness is rebutted. 38 C.F.R. § 3.304 (2009); VAOPGCPREC 3-2003. The Board further notes that, even aside from the issue of the preexistence of the Veteran's varicose veins, is the issue of the continuity of his symptomatology. The Board notes that, after the November 1975 entry in the STRs, there is no record of complaint or treatment until several years after his release from active service. No varicose veins were noted by VaANG medical officials at the Veteran's entry physical examination two years after his release from active service. It was not until four years later, in 1981, that VaANG medical officials noted varicose veins. After his release from active service, the Veteran's employment primarily involved manual labor. The Board notes the Veteran's statements that his varicose veins bothered him all along, but he could not seek treatment due to the lack of health insurance. Nonetheless, the evidence via the November 1975 STRs entry does not show that to be more than an acute episode of varicose veins, as reflected by the treatment option of support stockings. 38 C.F.R. § 3.303 (2009). The Veteran is entitled to the benefit of the doubt where the evidence in favor of service connection and against service connection is roughly in balance. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 3.102 (2009). Gilbert, supra; see also Almany v. Brown, 9 Vet. App. 518, 519 (1996). However, where the evidence preponderates against a finding of service connection, the benefit of the doubt rule is not applicable. Gilbert, supra. The Board finds that the evidence preponderates against a finding of service connection. 38 C.F.R. § 3.303 (2009). ORDER Service connection for bilateral varicose veins is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs