Citation Nr: 1309340 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-18 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for right lower extremity varicose veins, to include secondary to residuals of a right knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The case was certified to the Board by the Pittsburgh, Pennsylvania RO In September 2010 and April 2012, the Board, in pertinent part, remanded this issue for further development. This issue is again before the Board for appellate review. The issue of entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 (2012) for the Veteran's service-connected right knee disorder following March 2006 surgical treatment has been raised by the record and was previously referred in the September 2010 and April 2012 Board remands. To date this issue remains unadjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for immediate action. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim, known as Virtual VA. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims that he is entitled to service connection for right lower extremity varicose veins due to residuals of an in-service right knee injury. The Veteran states that he first noticed right leg varicose veins soon after his inservice 1984 right knee injury, and specifically after right knee swelling had subsided. He asserts that varicose veins have persisted ever since. The Veteran was afforded a VA examination for his right knee in September 2003. The examiner found right lower leg varicose veins posteriorly around the calf muscle. It was noted that, from the history, it appeared that these resulted after the cast was applied to the right knee. In May 2004 the Veteran underwent an additional VA examination for his right knee. The examiner noted varicose veins in the medial aspect of the left [sic] calf, but diagnosed the Veteran with varicose veins of the right lower leg. Neither the September 2003 VA examiner nor the May 2004 VA examiner addressed the etiology of any right lower extremity varicose veins. The Veteran has submitted two private medical opinions. A February 2007 letter from Dr. P.R. notes that the Veteran sustained a right knee injury in service requiring secondary bracing. This in turn led to severe right knee and lower leg swelling, causing severe superficial varicose veins behind the right knee and upper calf. Dr. P.R. stated that it was with reasonable medical certainty that after a review of the appellant's military records and his history and physical examination, that the Veteran has a right knee problem to include varicose veins. An April 2007 letter from Dr. T.J.E. notes that the Veteran reported his involvement in a motor vehicle accident which crushed his right leg. Afterwards, the Veteran reported developing post-traumatic varicosities involving his whole right posterior, medial, and lateral lower leg. Dr. T.J.E. noted that the varicosities did not exist in the contralateral leg, and it was within a reasonable degree of medical certainty that the varicose veins were related to an injury of that magnitude. In April 2012 the Board remanded the claim in order to afford the appellant a VA examination to clarify the medical evidence of record and address whether the Veteran's varicose veins were caused or aggravated by his service-connected right knee disability. While the Veteran was afforded a VA examination in May 2012 addressing his claim for service connection for varicose veins, that examiner failed to address whether the Veteran's service-connected right knee disability aggravated his varicose veins. The question of aggravation is an integral part of a secondary service connection claim, and the absence of an answer to this question requires remand. See 38 C.F.R. § 3.310(b); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Furthermore, the May 2012 opinion failed to provide a rationale for the finding that the Veteran's varicose veins were not caused by his right knee disability. Stefl v. Nicholson, 21 Vet. App. 120, 124 (to be considered adequate, medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, an additional medical opinion is needed to enable the proper adjudication of the claim for varicose veins, to include as secondary to the service-connected residuals of a right knee injury. Finally, the examination was conducted by a nurse practioner, and not a physician as directed by the Board in May 2012. As such, further development is mandatory. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Compliance by the RO with Board remands is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.) Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must arrange for a VA examination by an appropriate physician examiner to determine the nature and etiology of any diagnosed right lower extremity varicose veins. The examiner must opine whether there is at least a 50-50 probability that the Veteran's residuals of an in-service right knee injury caused right lower leg varicose veins. If not, the examining physician must opine whether there is at least a 50-50 probability that the appellant's residuals of an in-service right knee injury aggravate any diagnosed right lower leg varicose veins. The physician examiner must be provided access to the claims folder, Virtual VA and a copy of this remand. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. A complete rationale for any opinion expressed must be provided. The examining physician must provide both clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered. In rendering the opinion, the examining physician must discuss the Veteran's documented medical history and assertions, including the February and April 2007 private physician findings, as well as the Veteran's lay statements regarding the onset of his symptoms following his 1984 right knee injury. If the examining physician concludes that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 2. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. The RO/AMC must review any and all examination reports and medical opinions to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. Thereafter, the RO/AMC must readjudicate the claim. If the benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).