Citation Nr: 1303887 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 08-10 945 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine THE ISSUE Entitlement to service connection for varicose veins of the left leg, claimed as secondary to service-connected long saphenous varicosities of the right leg. REPRESENTATION Veteran represented by: Penelope Gronbeck, Attorney ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1974 to August 1978 and from November 1978 to April 1980. He also served in the Air National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2007 rating decision in which the RO denied service connection for long saphenous varicosities of the left lower extremity as secondary to service-connected varicosities of the right leg. In July 2007, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in February 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veteran's Appeals) that was received by the RO in April 2008. In October 2011, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further development. After completing additional development, the AMC continued to deny the claim (as reflected in a September 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. A review of the Virtual VA claims processing system reveals VA treatment records dated through September 2012; such records were considered by the AMC in the September SSOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate this claim have been accomplished. 2. Varicosities of the left leg were not shown in service or for many years thereafter, and the only medical opinion to directly address the medical relationship, if any, between current varicose veins of the left leg and either service and/or service-connected varicosities of the right leg weigh against the claim . CONCLUSION OF LAW The criteria for service connection for varicose veins of the left leg, to include as secondary to the service-connected varicosities of the right leg, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a March 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The March 2007 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The June 2007 RO rating decision reflects the initial adjudication of the claim after issuance of the March 2007 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service and VA treatment records. A March 2012 RO Memorandum made a formal finding of unavailability as to the Veteran's Air National Guard records. Also of record and considered in connection with the appeal are the updated VA treatment records, as requested by the Board in its October 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, there are various written statements provided by the Veteran, and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background A March 1974 service entrance examination was negative for any relevant abnormalities. The Veteran's left lower extremity was found to be within normal limits and questionable thrombophelebitis in the right lower extremity was assessed in July 1977. In September 1979, the Veteran complained of pain in the mid-lower left leg after being kicked while playing paddleball and an impression of a contusion was made. On January 1980 service discharge examination, his lower extremities were normal and the examination was otherwise negative for any relevant abnormalities; he was noted to have been treated for phlebitis in 1977. The remaining service treatment records are negative for any complaints, treatments or diagnoses related to varicose veins in the left leg. In a March 1983 statement, the Veteran wrote that he had injured his left leg while playing racquetball and that he was treated for varicose veins in the right leg during service. VA examinations conducted in September 1984, August 1986 and May 1995 were negative for complaints, findings or diagnoses related to the left leg. The report of a March 1993 VA examination reflects that a recent nuclear medicine scan had demonstrated increased activity in the superficial systems of both legs which was "much more pronounced on the left than on the left." Physical examination revealed no varicosities in the left leg. A January 2007 VA treatment note reflected the Veteran's reports of left leg pain in the anterior thigh and an assessment of myalgias. A second January 2007 VA treatment note contained an assessment of a left thigh mass with worsening clinical symptoms. A January 2007 private Magnetic Resonance Imaging (MRI) scan found evidence of varicosities along the medial aspect of the left thigh region. In a March 2007 claim, the Veteran wrote that he had experienced on-going left leg pain since December 2006. He indicated that he had favored his left leg "for a long time" due to the weakness associated with his service-connected right leg disability. A June 2007 VA examination reflects the Veteran's reports of the gradual onset of left lower extremity pain. Physical examination revealed dilated saccular veins in the left medial thigh as well as tenderness. Following this examination and a review of the Veteran's claims file, an assessment of left thigh varicose veins was made. The examiner opined that he knew of no scientific evidence that attributed the development of varicosities in one extremity as being secondary to the contralateral extremity. The examiner further opined that the risk factors for the development of varicosities were age, obesity and genetics. A March 2012 VA Veins Disability Benefits Questionnaire (DBQ) reflects Veteran's reports of progressively worsening symptoms related to his left anterior medial thigh as caused by varicose veins. Following a physical examination and a review of the Veteran's claims file, a diagnosis of left leg varicose veins was made. The examiner opined that it was less likely than not that the Veteran's disability was caused by, related to, or aggravated by his service-connected right leg varicose veins condition. The examiner noted that there was no available medical or scientific evidence that attributed the development of varicosities in one extremity as being secondary to the contralateral extremity or attributed aggravation of varicosities in one extremity as being secondary to the contralateral extremity. The examiner further opined that the risk factors for the development of varicosities included age, genetics and/or obesity and that medical nexus had been established. A September 2012 VA Veins DBQ examiner determined that it was less likely as not that the Veteran's diagnosed varicose veins in the left leg were caused by or aggravated by his service-connected right leg varicose vein condition. The examiner noted that there was no documented history or evidence of varicose veins in the left leg while on active duty and that varicose veins in one leg did not cause or aggravate varicose veins in the opposite leg. The examiner further opined that that favoring the left leg, as alleged by the Veteran, will not cause or aggravate the onset of a varicose vein condition and that while the Veteran may have had the risk factors for varicose veins while on active duty, he did not have or develop left varicose veins. In addition, the examiner noted that left leg varicose veins were not diagnosed until 30 plus years after leaving active duty, and opined that a medical nexus to the service was not established. II. Analysis The Veteran contends that the varicose veins in his left leg were caused by or are related to his service-connected long saphenous varicosities of the right leg. The Board notes, however, that the RO has considered, and developed, this claim on both direct and secondary service connection theories of entitlement. To give the Veteran every consideration in connection with the current appeal, the Board will do likewise. VA law and regulations provide that service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131 ; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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). Here, the Veteran's service treatment records reflect no complaint, finding, or diagnosis pertinent to varicose veins of the left leg during service. No abnormalities with respect to this condition were noted in the January 1980 report of medical history or the report of discharge examination. With respect to post-service medical records, the first evidence of a diagnosis of varicose veins in the left leg in a January 2007 private MRI scan. A March 1993 VA examination found no varicosities in the left leg. As noted above, there is nothing in the Veteran's service records to indicate that left leg varicose veins had its onset during service or shortly after service. Rather, the first medical evidence of such a disability was in 2207, approximately 27 years after the Veteran separated from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, there is no competent evidence or opinion even suggesting that there exists a medical nexus between the left leg varicose veins diagnosed so many years after the Veteran's discharge and any incident of service or his service connected long saphenous varicosities of the right leg. None of the VA medical records treatment records reflect any such opinion or even comment to that effect, and neither the Veteran nor his attorney has presented or identified any such existing medical evidence or opinion. As noted, VA examiners have repeatedly declined to find a nexus between the Veteran's left leg varicose veins and his service and/or service-connected long saphenous varicosities of the right leg. Significantly, moreover, the physician who provided the March 2012 and September 2012 opinions explicitly rendered conclusions that weigh against a finding of direct or secondary service connection. As these opinions were based on examination of the Veteran and consideration of his documented medical history and assertions, and supported by stated rationale, the Board accepts these opinions as probative of the medical nexus questions. As for any direct assertions by the Veteran and/or his attorney that there exists a medical relationship between the Veteran's varicose veins of the left leg and either service or service-connected long saphenous varicosities of the right leg, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his attorney is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. For all the foregoing reasons, the claim for service connection for varicose veins of the left leg, to include on a secondary basis, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for varicose veins of the left leg, to include as secondary to service-connected long saphenous varicosities of the right leg, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs