Citation Nr: 1307680 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 07-26 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, claimed as secondary to the Veteran's service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from August 1969 to March 1971, including service in the Republic of Vietnam from January 1970 to March 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Veteran presented testimony at a Video Conference hearing chaired by the undersigned Veterans Law Judge in July 2009. A transcript of the hearing has been associated with the claims folder. This is the fourth time that this issue has come before the Board. When this case was previously before the Board in November 2009, January 2011, and May 2012, the Bard remanded the Veteran's claim for further development. As the Board has remanded the Veteran's claims, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). FINDING OF FACT The preponderance of the competent evidence is against a finding that any disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, is related to service or service-connected disability. CONCLUSION OF LAW Disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, was not incurred in or aggravated during military service, or secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of a number of letters dated since before the current claim on appeal, and most recently in November 2009. These documents provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific criteria to substantiate his claim for service connection. The RO has provided adequate notice of how effective dates are assigned. The claim was subsequently readjudicated most recently in a November 2012 supplemental statement of the case. To the extent the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in July 2009 and a hearing before a RO Decision Review Officer (DRO) in November 2007, in which he presented oral argument in support of his claim for service connection for a disability of the lower legs and feet. 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 VLJ who chairs a hearing fulfill two duties to comply with the above 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 hearings, the VLJ and DRO did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim for service connection for a disability of the lower legs and feet. The VLJ and DRO did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board and DRO hearings. By contrast, the hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ and DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The claimant was provided the opportunity to present pertinent evidence. The record contains service treatment records, records of medical treatment received privately and from VA, and the report of VA examinations addressing the material elements of the claim. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. VA appropriately examined the medical history of the Veteran's claimed disability for compensation purposes addressing the claimed disorder. Findings from the examination reports are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As noted above, this case was previously before the Board in May 2012. In the May 2012 remand, the Board directed that the Veteran's VA treatment records dated from February 2011 and thereafter be obtained and associated with the claims folder. The Board directed that, after this development was completed, the RO must forward the claims file to the examiner who conducted the June 2010 VA examination or who offered the March 2011 addendum to that examination (or to any suitable substitute if either individual is unavailable) for an addendum. The examiner was asked to state whether the additional evidence obtained affected the obtained opinion regarding whether the Veteran's varicosities in his legs are aggravated by his service-connected diabetes mellitus or the peripheral neuropathy of the right and left lower extremities. The examiner was also asked to acknowledge the Veteran's statements regarding treatment at a VA facility. Virtual VA indicates that additional VA treatment records dated from February 2011 and thereafter were obtained. A June 2012 VA addendum opinion was provided by the examiner who offered the March 2011 addendum. The examiner noted that the claims file and appeals statement was reviewed. As the Veteran's representative acknowledged in January 2013 written argument, the directive of the May 2012 remand has thus been accomplished. Again, the Board has a duty to ensure substantial compliance with its remand directives. See D'Aries, 22 Vet. App. at 97. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis 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). Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. Notably, in this case, as discussed in the analysis below, the preponderance of the evidence is against a finding that a disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, is proximately due to or the result of the service-connected diabetes mellitus, type II. Therefore, further discussion in the analysis below as to the amended provisions of 38 C.F.R. § 3.310, as to establishing a pre-aggravation baseline level of disability, is not necessary. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 v. Nicholson, 492 F.3d 1372, 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."). Review of the service treatment records shows no indication at entry to service of any pre-existing condition referable to a disability of the lower legs and feet. At the May 1969 pre-induction examination, the Veteran's feet and lower extremities were clinically evaluated as normal. A May 1969 pre-induction Report of Medical History reflects that the Veteran checked the 'no' box for foot trouble. No relevant conditions were noted on entry to service. At the March 1971 discharge examination, the Veteran's feet and lower extremities were clinically evaluated as normal. VA outpatient treatment records dated in June 2003 reflect that the Veteran complained of right heel and right great toe pain. The Veteran testified at the July 2009 Board hearing that varicose veins began about two years earlier. A December 2009 statement from Dr. D. reflects that the Veteran had insulin dependent diabetes mellitus that involved large and small caliber blood vessels. The Veteran had arteriosclerotic vessel issues of his legs and he expressed intermittent claudication that made ambulation difficult. The Veteran experienced pain at rest. The Veteran underwent a VA examination in June 2010. He reported that foot and leg problems began in 2008. He stated that his feet swell, his toes go numb, he felt stiffness, and he could not move. He reported that his toes ached since 2008. He stated that there was numbness in the toes. Following physical examination, the examiner diagnosed status post right foot cheilectomy, and right heel spur. The examiner noted that the Veteran had mild to moderate varicosities in the small vessels of both legs. The examiner stated that the Veteran had good dorsalis pedis and posterior tibial pulses bilaterally. The examiner noted that examination of the joints of the feet was normal. The examiner stated that the Veteran had normal circulation in both feet and there was no swelling on examination. The examiner opined that varicosities of leg vessels that the Veteran described as poor circulation are less likely as not due to diabetes mellitus and more likely due to recent weight gain. The examiner noted that the varicosities are more likely than not causing the swelling in the Veteran's feet when activity increased. The Veteran underwent another VA examination in March 2011. He reported that untreated varicose veins in both legs began in the early 2000's. He stated that swelling and pain began to get worse in the previous two years. Following physical examination, the examiner diagnosed mild varicosities/varicose veins of the bilateral lower limbs. The examiner opined that it is less likely as not that the Veteran's current varicosities in the small vessels of both legs are aggravated by his service-connected diabetes mellitus or the peripheral neuropathy of the right and left lower extremities. The examiner noted that the Veteran presented with clinical pictures of mild varicosities based on this examination and the June 2010 VA examination. The Veteran's diabetes mellitus type II has progressed in the past couple of years, which likely aggravated the peripheral neuropathy pain symptoms, such as pain, numbness or tingling. However, the examiner stated that those symptoms are less likely as not due to the mild varicosities. The examiner stated that the cause of primary varicose veins is incompetent venous valves that result in venous hypertension. Secondary varicose veins result from deep venous thrombosis and its sequelae or congenital anatomic abnormalities. A June 2012 VA examination addendum opinion reflects that the claims file was reviewed. The examiner noted that there was no change in the March 2011 opinion. The Veteran asserts service connection for disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, secondary to his service-connected diabetes mellitus, type II. On review, the Board finds that the preponderance of the evidence is against a finding that disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, is related to service. The medical evidence during service shows no indication of any condition referable to this diagnosis during service. The Veteran has not alleged that disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, began during service. The Veteran testified that varicose veins began around 2007. The June 2010 VA examiner opined that varicosities of leg vessels that the Veteran described as poor circulation are less likely as not due to diabetes mellitus and more likely due to recent weight gain. The March 2011 and June 2012 VA examiner opined that it is less likely as not that the Veteran's current varicosities in the small vessels of both legs are aggravated by his service-connected diabetes mellitus or the peripheral neuropathy of the right and left lower extremities. There are no opinions to the contrary. The Board notes that the Veteran is competent to identify varicose veins. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that the presence of varicose veins is not a determination "medical in nature" and is capable of lay observation for the purposes of establishing service connection). However, the preponderance of the competent medical evidence shows that the Veteran's disability of the lower extremities is not related to service and was not caused or aggravated by a service-connected disability. In summary, review of the claims file shows that the preponderance of the evidence is against the claim for service connection for disability of the lower legs and feet, manifested by varicose veins and/or poor circulation. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a disability of the lower legs and feet, manifested by varicose veins and/or poor circulation, claimed as secondary to the Veteran's service-connected type II diabetes mellitus, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs