Citation Nr: 1237408 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 08-35 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral lower extremity chronic venous insufficiency, to include secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1970. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT The weight of the competent, probative evidence is in equipoise as to whether bilateral lower extremity chronic venous insufficiency is etiologically related to the Veteran's service-connected diabetes mellitus. CONCLUSION OF LAW Bilateral lower extremity chronic venous insufficiency is caused or aggravated by diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) evidence of a current disability (2) evidence of in service incurrence or aggravation of disease or injury; (3) 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). Under 38 C.F.R. § 3.303 (b) an alternative method of establishing the second or third Shedden element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). 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) evidence of a nexus between the present disability and the post service symptomatology. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease process was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). However, given the basis for the allowance, as noted below, any further discussion of the amendment is unnecessary. The Veteran is service connected for diabetes mellitus. Additionally, he has been diagnosed with chronic venous insufficiency of the lower extremities, documented, for example, on VA diabetes examination in September 2006 and in private treatment records of 2004. Hence, the remaining question is whether there is a relationship between these disorders. The medical evidence of record includes conflicting medical opinions on the question of whether there exists a medical relationship between chronic venous insufficiency for which service connection is sought, and the Veteran's service-connected diabetes. In an August 2006 report the Veteran's private treating physician, Paul David Minnick, D.O., stated that the Veteran suffers from a number of disabling conditions directly related to his diabetes, including the circulation problems in his legs. Dr. Minnick opined that the Veteran's diabetes and related problems were as likely as not caused by his exposure to herbicides while serving as an infantryman in Vietnam. At a September 2006 VA examination for diabetes the examiner determined the Veteran had symptoms of "diabetic-related" lower extremity peripheral vascular disease. The onset was noted as two years ago and the condition was manifested by circulation problems, soreness, and delayed healing. Edema was present and was relieved by elevation and compression hosiery. Skin discoloration was present and consistent. Pain was present and constant. Other symptoms included throbbing, aching, and a heavy feeling. There was no ulceration. At the conclusion of the report, however, the examiner offered contradicted himself and stated that chronic venous insufficiency was not a complication of diabetes, but was most likely related to cigarette smoking. In July 2007, Dr. Minnick reiterated his findings that the Veteran's circulation problems of the leg are related to his Adult Onset Type II Diabetes, and that both conditions are related to exposure to Agent Orange while serving as an infantryman in Vietnam. On VA examination for diabetes in April 2008, the examiner found the Veteran had symptoms of diabetic-related peripheral vascular disease in the lower extremities, manifested by claudication, edema, and coldness. The disorder was not specifically listed as a complication in the "diagnosis" section at the end of the report. On VA examination in April 2009, the examiner determined that because the Veteran did not then have peripheral vascular disease, the disorder is not caused by his diabetes. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). 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; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). Based on consideration of the above, the Board finds that the weight of the competent, probative evidence is in equipoise as to whether the Veteran's chronic lower extremity venous insufficiency is etiologically related to his service-connected diabetes. The negative evidence consists of the opinion of the September 2006 examiner, who offered entirely conflicting findings within the report. This diminishes the probative value of the report. The other negative opinion was offered by the April 2009 examiner, who offered a negative opinion based on a lack of diagnosis at that time. For purposes of this adjudication, the Board must concede this element of service connection. McClain v. Nicholson, 21 Vet. App. 319, 321 (2009). As such, the April 2009 report is not determinative. By contrast, the opinions expressed by Dr. Minnick are fully adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The opinions were based on a history of treatment of the Veteran and a review of pertinent history. Similarly, the Board does not find inadequacies in the April 2008 VA examiner's opinion. The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, the Board concludes that the criteria for service connection for chronic venous insufficiency of the lower extremities, secondary to the Veteran's diabetes, are met. The Board notes that Dr. Minnick's report also offers a supportive statement for service connecting venous insufficiency to Agent Orange exposure. While the Veteran is a Vietnam veteran and as such is presumed to have been exposed to Agent Orange, venous insufficiency is not a presumptive disorder under 38 C.F.R. §§ 3.307, 3.309 (2012), and Dr. Minnick offers no rationale for this opinion. Hence, the Board finds that service connection is not in order on a presumptive basis. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For all of the above reasons, the Board finds that entitlement to service connection for chronic venous insufficiency of the lower extremities secondary to diabetes is established. ORDER Entitlement to service connection for bilateral lower extremity chronic venous insufficiency, secondary to diabetes mellitus, is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs