Citation Nr: 1307597 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-01 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome. 2. Entitlement to service connection for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome. 3. Entitlement to service connection for atrial fibrillation as secondary to the service-connected right lower extremity varicose veins and residuals of thrombophlebitis. 4. Entitlement to service connection for degenerative disc disease of the lumbar spine with mechanical low back pain and radiculopathy as secondary to the service-connected right ankle sprain. 5. Entitlement to a rating higher than 10 percent for a right ankle sprain with additional manifestations. 6. Entitlement to a rating higher than 40 percent for varicose veins of the right lower extremity. 7. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active military service from March 1972 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009, rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2011, the appellant testified via video before the undersigned Veterans Law Judge. A written transcript of this hearing has been added to the claims file. Following the hearing, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c) (2012). In October 2012, the Board sought a medical opinion from the Veterans Health Administration (VHA), which was submitted in December 2012. The Veteran was notified of this opinion under cover of a December 2012 letter. The claim for entitlement to service connection for degenerative disc disease of the lumbar spine with mechanical low back pain and radiculopathy as secondary to the service-connected right ankle sprain, and the claims for entitlement to higher ratings for a right ankle sprain with additional manifestations and for varicose veins of the right lower extremity, as well as the claim for entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In an unappealed February 1979 decision, the Board denied the Veteran's claim for service connection for thrombophlebitis of the right lower extremity. 2. The additional evidence received since the last final decision raises a reasonable possibility of substantiating the service connection claim for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome. 3. It is as likely as not the Veteran's residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome, are related to service. 4. The preponderance of the evidence shows that the Veteran's atrial fibrillation was not present in service or until many years thereafter and is not related to service or to an incident of service origin, or a service-connected disability. CONCLUSIONS OF LAW 1. The February 1979 Board decision that denied service connection claim for thrombophlebitis of the right lower extremity is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has been received to reopen the claim for service connection for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome, the claim is therefore reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. Resolving all reasonable doubt in his favor, the Veteran's residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome, were incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). 4. Atrial fibrillation was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1112, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in March 2008, May 2008, November 2008, September 2008, and December 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). With respect to the Veteran's application to reopen his previously denied claim for service connection for residuals of thrombophlebitis of the right lower extremity, the August 2008 letter also apprized the Veteran of the need for new and material evidence to reopen the claims. 38 U.S.C.A. § 5103(a) (West 2002); Kent v. Nicholson, 20 Vet. App. 1 (2006). That communication satisfied the notice requirements for new and material evidence claims. Id. Thereafter, the claims were readjudicated in the June 2010 supplemental statement of the case. The Veteran was afforded a hearing before the Board, at which he presented oral testimony in support of his claims and also introduced additional documents for inclusion into the evidence already of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits herein decided. In addition, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims, to include medical opinions and records in support of the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has any prejudice been identified in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims herein decided. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, Social Security Administration records, Virtual VA file, and private and VA treatment records have been obtained. In addition, the Veteran has been provided with VA examinations in connection with his present claims, and a VHA expert medical opinion was obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. II. Application to reopen a claim of service connection for residuals of thrombophlebitis of the right lower extremity Where a final Board decision exists on a given claim, that claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered by the Board. 38 U.S.C.A. § 7104(b). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. Therefore, once a Board decision becomes final under § 7104(b), "the Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). " The Board does not have jurisdiction to consider [the previously- adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Applicable here, "new" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). By way of history, in rating decisions, in January 1975 the RO denied the Veteran's claim for service connection claim for thrombophlebitis. By rating actions in March 1978 and June 1978 the RO confirmed the previous denial, and the Veteran appealed that decision. The Board, in a February 1979 decision, denied entitlement to service connection for thrombophlebitis. That Board decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). In March 2008, VA received the Veteran's request to reopen the service connection claim for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome. In a February 2009 rating decision, the RO determined that new and material evidence had not been received; this rating decision is the subject of the instant appeal. Based on the above, the February 1979 Board decision is the last final decision of record applicable here. As the last final disallowance of the Veteran's service connection claim for thrombophlebitis February 1979 Board decision, the Board must now determine whether new and material evidence to reopen the claim has been received since that decision. When the Board decided its February 1979 decision, the claims folder contained the Veteran's service treatment records, VA examination reports and treatment records, and private medical evidence. In the February 1979 decision, the Board noted the Veteran's contention that his right lower extremity thrombophlebitis were related to service. Private treatment records in May 1967 noted recurrent phlebitis, an in November 1967 the Veteran was diagnosed and treated for deep thrombophlebitis. Upon service entrance in February 1972, phlebitis and thrombophlebitis was noted. In June 1972 the Veteran was seen for complaints of discomfort in the veins of the right leg when running. He was given an Ace wrap. The remainder of the Veteran's service treatment records, to include the November 1973 separation examination report, failed to document a diagnosis consistent with residuals of thrombophlebitis. Post-service, a private treatment record shows that the Veteran was hospitalized in May 1977 for thrombophlebitis. VA physicians indicated in a April and May 1978 statements reported that the Veteran had been treated for chronic phlebitis and thrombophlebitis of the right leg since 1977. The Board in February 1979 concluded that the Veteran's thrombophlebitis preexisted service and there was no evidence of an increase in severity during service. Since the February 1979 Board decision, evidence added to the claims folder includes additional private and VA medical evidence and the Veteran's contentions. Private and VA treatment records dated after 1996 show continued treatment for thrombosis of the right lower extremity. Significantly, the record contains a July 1997 statement from a private physician, Dr. J.W.R., which noted a history of thrombosis in the right leg since childhood, which was exacerbated in service. In June 2009, Dr. J.F.R. noted the Veteran was his long term patient and opined that the problems the Veteran endured due to leg varicosities and chronic thrombophlebitis progressed beyond their natural progression due to military service. He explained that the Veteran first experienced thrombophlebitis prior to service after an appendectomy. Thereafter he continued to have problems with his veins and phlebitis in the legs due to the rigors of military service. A private in September 2010, noted an impression of a history of venous insufficiency involving the right lower extremity, which was felt to be related to deep venous thrombosis, with suspected exacerbation in service. Finally, in a March 2011 statement, Dr. M.H.M. noted the Veteran's service induction examination in 1972 which noted phlebitis, and concluded, based on a review of relevant medical evidence of record, that Veteran's phlebitis and thrombophlebitis pre-existed service, and opined that the activities of rigorous military service could lead to aggravation of the phlebitis and certainly could have led to progress beyond the point of what would normally occur during natural circumstances. This new evidence is material in that it raises a reasonable possibility that the Veteran's residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome, are related to service. 38 C.F.R. § 3.156 (2012). As new and material evidence has been received, the claim is reopened. II. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and heart disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2012). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists, and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 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). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Id. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). a. Residuals of thrombophlebitis of the right lower extremity As already alluded to, a pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). And, again, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Upon service entrance in February 1972, phlebitis and thrombophlebitis were noted. In June 1972 the Veteran was seen for complaints of discomfort in the veins of the right leg when running. He was given an Ace wrap. The remainder of the Veteran's service treatment records, to include the November 1973 separation examination report, failed to document a diagnosis consistent with residuals of thrombophlebitis. Since phlebitis and thrombophlebitis were noted upon entry into active service, the Board finds that an abnormality existed prior to active service and the presumption of soundness is rebutted as to that disability. Further, the Veteran submitted private treatment records in May 1967 and November 1967, which noted recurrent phlebitis and a diagnosis and treatment for deep thrombophlebitis. Accordingly, the Board must consider whether the Veteran's pre-existing thrombophlebitis disability was aggravated in service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Post-service, a private treatment record shows that the Veteran was hospitalized in May 1977 for thrombophlebitis. VA physicians indicated in a April and May 1978 statements reported that the Veteran had been treated for chronic phlebitis and thrombophlebitis of the right leg since 1977. Private and VA treatment records dated after 1996 show continued treatment for thrombosis of the right lower extremity. Significantly, the medical evidence of record supports the claim. In this regard, in a July 1997 statement a private physician, Dr. J.W.R., noted a history of thrombosis in the right leg since childhood, which was exacerbated in service. Similarly, in a June 2009, Dr. J.F.R. noted the Veteran was his long term patient and opined that the problems the Veteran endured due to leg varicosities and chronic thrombophlebitis progressed beyond their natural progression due to military service. The rationale was that the Veteran first experienced thrombophlebitis prior to service after an appendectomy, and thereafter he continued to have problems with his veins and phlebitis in the legs due to the rigors of military service. Consistent with these medical opinions a private clinical treatment note in September 2010, noted an impression of a history of venous insufficiency involving the right lower extremity, which was felt to be related to deep venous thrombosis, with suspected exacerbation in service. Finally, in a March 2011 statement, Dr. M.H.M. noted having reviewed relevant medical evidence of record, to include the Veteran's service induction examination in 1972 which noted phlebitis. Dr. M.H.M. found multiple documentations of thrombophlebitis and phlebitis requiring various treatments including in August 1996 when he was treated for deep venous thrombosis. He also noted the medical opinions of the Veteran's treating physicians who opined that the Veteran thrombophlebitis was exacerbated by service. Dr. M.H.M. concluded, based on a review of the medical evidence of record, that the rigors of military service could certainly exacerbate the Veteran's chronic thrombophlebitis with subsequent issues regarding venous insufficiency. Accordingly, he determined that the Veteran's phlebitis and thrombophlebitis pre-existed service that subsequently worsened with the development of chronic venous insufficiency. Dr. M.H.M. opined that the activities of rigorous military service could lead to aggravation of the phlebitis and certainly could have led to progress beyond the point of what would normally occur during natural circumstances. To the extent that a VA examiner in January 2009 diagnosed deep vein thrombosis, resolved, with residual post-phlebetic syndrome of the right leg, and opined that the condition was less likely as not caused by or the result of varicose veins, the Board notes that the examiner did not address whether the pre-existing condition was aggravated by service. As such, there is no evidence in the record rebutting the private physicians' favorable opinions that the Veteran's residuals of thrombophlebitis of the right lower extremity were aggravated beyond the natural progression of the disease due to his active duty service. Certainly then, resolving all reasonable doubt in the Veteran's favor, it is just as likely as not the Veteran's pre-existing Veteran's residuals of thrombophlebitis of the right lower extremity were aggravated beyond its natural progression during service. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection is warranted. b. Atrial fibrillation The Veteran contends that his atrial fibrillation is related to his military service, or in the alternative, that it is caused or aggravated by his service-connected varicose veins, or by residuals of thrombophlebitis of the right lower extremity. A Veteran is competent to testify to factual matters of which he had first-hand knowledge. Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). 38 C.F.R. § 3.159(a)(2) (2011). Additionally, the Board finds that the Veteran is competent to report that he experienced breathing difficulties, or pain during service. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2011); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran reports continuity of symptomatology since service, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Here the Board finds that contentions of continuity of symptoms associated with atrial fibrillation since service are not credible because they are inconsistent with the evidence of record. Service treatment records are negative for any diagnosis or treatment for atrial fibrillation, including upon a separation physical examination in November 1973. Accordingly, the Board finds that the service medical records lack the combination of manifestations sufficient to identify a chronic heart disability, to include atrial fibrillation. Post-service private medical records reflect a diagnosis of new onset atrial fibrillation in May 2003 after the Veteran complained of dizziness, weakness in his lower extremities, and palpitations. VA and private medical records since that time show continued findings of atrial fibrillation treated with Coumadin. Furthermore, the evidence does not show that any cardiovascular disease manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, in view of the period without evidence of treatment for atrial fibrillation from 1973 to at least 2003, and the lack of clinical findings or complaints during this time, the Board finds that the evidence is against a finding of a continuity of treatment, which weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has weighed statements made by the Veteran as to incurrence of atrial fibrillation during service and continuity of symptomatology and finds the current recollections and statements made in connection with a claim for benefits to be of less probative value. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Dalton v. Nicholson, 21 Vet. App. 23 (2007). On the question of medical causation or medical evidence of an association or link between atrial fibrillation, first noted after service, and service or a service-connected disability, to include varicose veins or residuals of thrombophlebitis of the right lower extremity, VA obtained a medical opinions, which considered the Veteran's contentions and the service medical records. The medical opinions did not associate the Veteran's atrial fibrillation to service or a service-connected disability. The Veteran was afforded a VA examination in January 2009 to determine the etiology of his atrial fibrillation. The examiner opined that the Veteran's atrial fibrillation was less likely than not caused by or a result of his varicose veins. The rationale was that there currently was no medical literature that linked varicose veins to atrial fibrillation. The examiner also provided a list of the main causes of atrial fibrillation, which did not include varicose veins. The Board determined that the VA examiner's opinion was insufficient to decide the Veteran's claim on the merits. Moreover, VA examiner failed to provide a medical opinion addressing whether atrial fibrillation was aggravated (i.e. permanently worsened) as a result of the service-connected varicose veins. As such, in October 2012 the Board sought an expert opinion from the VHA as to the nature and etiology of the Veteran's atrial fibrillation. In an opinion in August 2012, the reviewing VHA physician opined that it was less likely than not that the Veteran's atrial fibrillation was related to service, or had its onset during service. The VHA physician indicated that while it was extremely difficult to speculate whether the Veteran had atrial fibrillation during service, it was not documented on EKGs and the Veteran exhibited no symptoms suggestive of atria fibrillation during service. Additionally, there was no evidence based on medicine that would associate atrial fibrillation to service. In fact, atrial fibrillation was initially documented in May 2003, approximately 30 years after discharge from service, when the Veteran presented complaints of dizziness, palpitations, and weakness. The VHA physician further opined that the Veteran's atrial fibrillation, was neither caused nor aggravated (i.e. permanently worsened) by his service-connected varicose veins, or by residuals of thrombophlebitis. In this regard the VHA physician explained that a review of the pertinent literature showed no association between varicose veins or thrombophlebitis and atrial fibrillation. The VHA physician listed aggravating and etiological factors for atrial fibrillation such as hypertension, coronary disease post-op cardiac surgeries, hyperthyroidism, chronic obstructive coronary disease, obesity diabetes, hypertrophic cardiomyopathy, percarditis, pulmonary embolism, renal insufficiency, valvular heart disease, heart failure, sleep apnea, alcoholism, and excessive caffeine intake. The VHA physician further stated that varicose veins and thrombophlebitis were not identified in the medical literature, journals, or text books, as being an etiological or aggravating factor for atrial fibrillation. The VHA physician has specialized expertise in the area of heart disorders and is able to render a competent opinion regarding the likelihood that the claimed disorder is related to service or a service-connected disability. Also, the VHA physician's opinion is based on review of the claims folder, to include the Veteran's service and post-service treatment records, and refers to relevant documentation in the claims file. The physician also addressed the Veteran's contentions that his varicose veins and residuals of thrombophlebitis of the right lower extremity caused or aggravated his atrial fibrillation, and explained, based on sound medical principles, why the Veteran's atrial fibrillation was less likely than not related to service, or a service-connected disability, to include varicose veins and residuals of thrombophlebitis of the right lower extremity, despite the Veteran's assertions. Significantly, the VHA opinion is consistent with the evidence of record, to include post-service private treatment records and the January 2009 VA examination findings. Moreover, that competent medical evidence is uncontroverted by any contrary competent medical opinion and opposes, rather than supports, the claim. The Board recognizes the Veteran's contentions as to the diagnosis and relationship between atrial fibrillation and service, and varicose veins or residuals of thrombophlebitis of the right lower extremity. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss ongoing shortness of breath, chest pain and symptoms of dizziness or other observable problems. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the currently diagnosed atrial fibrillation and its medical causation are not subject to lay observation or assertion, and fall outside the realm of common knowledge of a lay person. The diagnosis of atrial fibrillation is based on clinical findings, to include radiographic and EKG studies. For this reason, atrial fibrillation is not a simple medical condition that the Veteran is competent to etiologically relate to any medical disability or disorder as he is not shown to be qualified through education, training, or experience to interpret clinical findings of a disease process or interpret diagnostic studies and determine its etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Given the complex nature of the Veteran's disability his assertions do not constitute competent medical evidence that he suffers from atrial fibrillation that is a result of service or a service-connected disability, to include varicose veins or residuals of thrombophlebitis of the right lower extremity. Thus, in summary, the most credible and probative evidence shows that atrial fibrillation manifested more than 1 year after discharge from service and is not otherwise related to service or a service-connected disability. For these reasons, the preponderance of the evidence weighs against the award of service connection for atrial fibrillation and the claim must be denied. In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence to reopen claim of service connection for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome, has been presented and the claim is reopened. Service connection for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome, is granted. Service connection for atrial fibrillation as secondary to the service connected right lower extremity varicose veins and residuals of thrombophlebitis is denied. REMAND Initially, the Board notes that the Veteran contends that his service-connected varicose veins of the right lower extremity are more disabling than currently evaluated, thus he is entitled to a disability rating higher than 40 percent. Specifically, at the February 2011 personal hearing, the Veteran reported increased symptomatology associated with the right lower extremity varicose veins, which were not previously noted on the most VA examination in January 2009. In this regard, the Veteran and his spouse testified that his right leg varicose veins were productive of persistent edema, constant pain even at rest, eczema, and pigmentation. The Veteran's spouse also testified that she observed leg ulceration in recent years. As such, VA is required to afford him contemporaneous VA examination to assess the current nature, extent and severity of the service-connected varicose veins of the right lower extremity. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand the claim. Next, the Veteran claims that he is entitled to a disability rating higher than 10 percent for residuals of a right ankle sprain. The RO denied the Veteran's claim for a higher rating based on examination findings which failed to show marked limitation of motion of the right ankle. However, in recent statements the Veteran asserted that he currently suffers from additional manifestation due to the service-connected right ankle condition, to include neurological symptoms of weakness and numbness in the right ankle. While VA and private treatment records recorded complaints of numbness in the right ankle along with diagnoses of peripheral neuropathy and lumbar radiculopathy, it is unclear to what extent the Veteran's complaints of pain, numbness and weakness of the right ankle are residual manifestations of the service-connected right ankle sprain. Thus, the Board must remand this claim to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected residuals of a right ankle sprain with neurological manifestations, to include pain, weakness and numbness. In doing so, all orthopedic and neurological manifestations of the right ankle must be evaluated by the VA examiner, and consideration of separate ratings for all such manifestations must be undertaken by the RO. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Next the Veteran claims entitlement to service connection for degenerative disc disease of the lumbar spine with mechanical low back pain and radiculopathy as secondary to the service-connected right ankle sprain. As the Veteran's claim for an increased rating for residuals of a right ankle sprain with additional disabilities is being remanded for additional development, which could potentially impact the service connection claim, in the interest of judicial economy, the Board defers consideration of the service connection claim pending adjudication of the inextricably intertwined claim for a rating higher than 10 percent for a right ankle disability. See Harris v. Derwinski, 1 Vet. App. 180. 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The Board further finds that following completion of the development requested for the increased rating claim for a right ankle condition, an addendum opinion from the January 2009 VA examiner should be obtained regarding the etiology of the low back disability, and whether any back disability is caused or aggravated by the Veteran's service-connected residuals of a right ankle disability with additional manifestations. In the alternative, if the January 2009 VA examiner is unavailable, the Veteran should be afforded another VA examination of his spine to address the above. Next, relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Also, the Veteran should be requested to provide any outstanding private medical records or authorize VA to obtain the records. Finally, the Veteran contends that his service-connected residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome, right lower extremity varicose veins, and right ankle sprain, render him unemployable. He specifically asserted that medical treatment for his vascular problems, to include the thrombosis, precluded treatment for other disabilities and presented a risk to any employer if the Veteran were to fall. The Veteran is currently unemployed. In a January 2008 statement a private physician opined that the Veteran was unable to permanently perform the requirements of his job due to medical reasons, to include hyperlipidemia, diabetes mellitus and secondary neuropathy, atrial fibrillation, chronic right lower extremity deep venous thrombosis and secondary post-phlebetic syndrome, lumbar degenerative disc and joint disease with spondylolisthesis, and hypothyroidism. Correspondence from the Veteran's former employer shows that in May 2008, the Veteran was found to disabled by for his position as a Letter Carrier due to deep venous thrombosis, degenerative disc disease, spondylolisthesis, and type 2 diabetes. In December 2008, a private physician opined that the Veteran was disabled due to pain from spinal disease, thrombophlebitis and chronic atrial fibrillation. This Board decision has granted service connection for residuals of thrombophlebitis of the right lower extremity, to include deep vein thrombosis with post-phlebetic syndrome. This will require a disability evaluation to be assigned by the RO, which in turn, could affect whether the Veteran meets the schedular criteria for a TDIU. Accordingly, the Board finds that the Veteran's claim for entitlement to a TDIU should not be adjudicated until RO assigns an initial rating for his service-connected residuals of thrombophlebitis of the right lower extremity, and ascertains whether service connection and higher ratings are warranted for the claims being remanded. Harris, supra. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of symptomatology associated with the service-connected varicose veins of the right leg and right ankle sprain including any related occupational impairment(s), as well as his claimed lumbar spine disability and the onset, chronicity and/or relationship between his lumbar spine condition and service or the service-connected right ankle sprain. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 2. Obtain, either electronically or physically, all treatment records for treatment received at the VAMC dated since December 2008. All attempts to obtain these records must be documented in the claims file. 3. Request the Veteran to identify any sources of private treatment or evaluation relevant to the claims on appeal. Then, undertake appropriate efforts to attempt to obtain any indicated records. Additionally, in light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file. 4. After associating all outstanding pertinent records with the claims file, schedule the Veteran for appropriate VA examination to determine the nature, extent, frequency and severity of his varicose veins of the right lower extremity. The claims folder should be made available to and be reviewed by the examiner and all necessary tests should be conducted. a. The examiner should identify all associated pathology found to be present and include findings from all indicated tests and studies. To the extent possible, the examiner should identify the presence (or note if asymptomatic/without noticeable symptoms) and extent (to include whether a symptom is intermittent, persistent, or constant) of edema, pain, subcutaneous induration, stasis pigmentation, eczema, ulceration, aching and fatigue; and state the extent that symptoms are relieved by elevation of extremity or compression hosiery. b. The examiner is also directed to assess the extent that the Veteran's varicose veins of the right lower extremity affects his ability obtain substantially gainful employment. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any non-service-connected disabilities, it is at least as likely as not that his service-connected disability renders him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Afford the Veteran an appropriate VA to assess the current nature and severity of the service-connected right ankle sprain to include pain, weakness and numbness. The claims file must be made available and reviewed by the examiner. All tests deemed necessary by the examiner shall be performed and all findings reported in detail. a. It is requested that the examiner identify all symptoms and manifestations of the Veteran's right ankle disability. A comprehensive clinical history must be obtained. The examination report must include discussions of the Veteran's medical history and assertions. b. The examiner is specifically requested to provide range of motion findings for the affected parts. The examiner must determine whether the right ankle exhibits weakened movement, excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination, to include the Veteran's pain-free range of motion. The examiner must also express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right ankle is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups, i.e., pain-free motion during flare-ups. c. The examiner must also identify any neurological manifestations. In this regard, the examiner should address any complaints of radiating pain and numbness in the extremity. The examiner should provide an opinion as to whether any neurological symptomatology equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any affected nerve. The severity of each neurological sign and symptom should be reported and the severity of the symptoms should be assessed over the course of the appeal. d. The examiner is also directed to assess the extent that the Veteran's right ankle disability affects his ability obtain substantially gainful employment. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any non-service-connected disabilities, it is at least as likely as not that his service-connected disability renders him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 6. After the above development is completed, forward the complete claims folder to the VA examiner who provided the January 2009 VA examination and opinion report. The examiner is asked to provide additional comments with respect to whether the any lumbar spine disorders are related to service or a service-connected disability, specifically, his service-connected right ankle disability. A detailed analysis should be provided and the specific disabilities of the right hip and right ankle found to be present should be identified. The examiner is asked to specifically address the following: a. Is it at least as likely as not that any current low back disability began in or is otherwise related to the Veteran's period of service or became manifest within one year of service discharge in December 1973? b. Is it at least as likely as not that any current lumbar spine disability was caused, or underwent a permanent increase in severity due to the service-connected right ankle disability. If the examiner determines that the Veteran's low back condition was aggravated by the right ankle disability, the examiner should identify the baseline level of severity of the low back disability, prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity of the low back disability is due to natural progress, the examiner should identify the degree of increase in severity due to natural progression. A complete rationale is required for the opinion rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If the January 2009 VA examiner is no longer available, the claims file should be reviewed by another VA examiner for medical the opinions as requested above. 7. Thereafter, the Veteran's claims, to include the Veteran's TDIU claim, should be readjudicated. If any claim remains denied, the Veteran should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs