Citation Nr: 1200549 Decision Date: 01/06/12 Archive Date: 01/13/12 DOCKET NO. 09-33 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for bilateral varicose veins. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from May 1967 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In connection with this appeal the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO in September 2010. A transcript of the hearing is associated with the claims file. This case was previously before the Board in March 2011, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT The Veteran's bilateral varicose veins were not present until many years after service and are not etiologically related to active service. CONCLUSION OF LAW Bilateral varicose veins were not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in May 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The May 2008 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examination. The Board finds that the examination was adequate to allow proper adjudication of the issue on appeal. The examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinion based on consideration of the full history of the disability. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See 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"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that the various physical requirements of his active service caused his varicose vein problem. He has reported that he had varicose veins at the time of his separation. STRs are negative for any treatment for or diagnosis of varicose veins while the Veteran was in active service. There is no separation examination of record. However, in February 1971, the Veteran underwent a US Navy Reserve examination. There is no indication from the examination report that the Veteran complained of experiencing any symptoms of varicose veins during active service or during the period following his separation from active service. Additionally, the Veteran's lower extremities and vascular system were all found to be clinically normal upon physical examination. In a September 2010 statement, the Veteran's former spouse reported that she had known the Veteran prior to, during, and following his separation from active service. She reported that prior to the Veteran's active service, the veins in his legs were not obvious. However, she noted that during his leave time and at the time of his separation from active service in November 1968, his veins had become enlarged and unsightly. The Board notes that the Veteran is competent to report when his symptoms began and that they have continued since his active service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Further, lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, v. Derwinski, 2 Vet. App. 492, 494 (1992). However, in this case, there is contemporaneous medical evidence in the form of the Veteran's February 1971 US Navy Reserve examination report, which is negative for any indication that the Veteran had varicose veins at that time. Additionally, as noted above, there is no indication from the examination report that the Veteran reported having any problems with his legs at that time. On the contrary, the examination showed that his lower extremities were normal. It was also noted that examination was negative for abnormalities of the vascular system, to include varicosities. Therefore, the examination report is evidence which weighs directly against the claim that varicose veins were present at that time. The Veteran has submitted photographs from during and shortly after service, but the photos are not clear enough to demonstrate that varicosities were present. Furthermore, there is no indication from the record that the Veteran was diagnosed with varicose veins prior to 1986, which was nearly two decades following his separation from active service. The Board is of the opinion that the contemporaneous medical evidence has much greater evidentiary value than statements made many years later based on recollections. Therefore, the Board finds that the statements provided by the Veteran and his ex-spouse regarding the presence of varicose veins at the time of the Veteran's separation from active service are not credible. A review of the post-service medical evidence of record shows that the Veteran was diagnosed with bilateral varicose veins in 1986. Since that time, the Veteran has continued to receive treatment from both private providers and at the VA Medical Center for his varicose veins, to include undergoing several vein stripping procedures. However, there is no indication from the private or VA Medical Center treatment notes that the Veteran's varicose veins are related to his active service. On the contrary, the April 1986 history and physical examination report from the private hospital notes that "the present condition started a few months prior to this admission..." This history places the date of onset as being many years after service. Of record is a September 2010 letter from one of the Veteran's private physicians, Dr. Z.H. In the letter, Dr. Z.H. reported that the Veteran had reported a history of enrollment in active service, during which time his leg symptoms first appeared. Dr. Z.H. further reported that the Veteran reported engaging in various activities during active service to include running, jumping, squatting, duck walking, jumping jacks, push-ups, marching, and carrying heavy loads up and down ladders and stairs. Dr. Z.H. opined that excessive activities such as those described by the Veteran could result in the Veteran's current symptoms and varicosities, but reported that he could not say with certainty that it was the sole cause of the Veteran's symptoms. Medical opinions expressed in speculative language ["could have caused", etc.] do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). In this regard, the Board notes that while the Veteran's private doctor notes that the Veteran's varicose veins could have been caused by the physical activity he engaged in while in active service, he did not provide a definite conclusion. Additionally, the Veteran's private physician clearly stated that he was unable to provide a more definitive conclusion. Therefore, as the opinion is speculative in nature, it is not sufficient evidence upon which a grant of entitlement to service connection can be based. In August 2011, the Veteran was afforded a VA examination in order to determine the nature and etiology of his bilateral varicose veins. Following an examination of the Veteran, the VA examiner diagnosed moderate sized, bilateral varicose veins. The examiner opined that it was less likely as not that the Veteran's varicose veins were related to his active service. In this regard, the VA examiner reported that the Veteran's varicose veins were actually caused by valve incompetence in the veins. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). As noted, the Board finds that the Veteran's private physician's opinion is inadequate to serve as the basis of a grant of entitlement to service connection as the private physician expressed the September 2010 opinion in speculative language and was unwilling to provide a more definitive conclusion. In contrast, the August 2011 VA examiner clearly stated that the Veteran's varicose veins were not a result of his active service, but rather, a result of valve incompetence in the veins. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral varicose veins is not warranted. ORDER Entitlement to service connection for bilateral varicose veins is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs