Citation Nr: 1310598	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-48 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for a heart disorder (claimed as mitral valve prolapse).

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for skin cancer due to herbicide exposure.  

4.  Entitlement to service connection for varicose veins of the left lower extremity. 


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1960 to August 1969 and December 1970 to August 1980.

This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  In August 2009, the RO denied service connection for bilateral hearing loss, skin cancer due to herbicide exposure, and varicose veins of the left leg.  In January 2010, the RO denied service connection for mitral valve prolapse.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

The issue of service connection for varicose veins of the left lower extremity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  All relevant evidence necessary to decide the Veteran's appeal regarding the issues of service connection for a heart disorder, bilateral hearing loss, and skin cancer due to herbicide exposure has been obtained.

2.  The Veteran was diagnosed with left atrial enlargement in service.

3.  The Veteran currently has the same diagnosis of left atrial enlargement since separation from service.  

4.  The Veteran's subsequent manifestations of left atrial enlargement are not clearly attributable to intercurrent causes.

5.  The Veteran does not have a currently diagnosed bilateral hearing loss disability.  

6.  Bilateral hearing loss did not manifest to a compensable degree within one year of separation from active service.

7.  Skin cancer is not among the diseases associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309(e).

8.  The Veteran does not have a currently diagnosed skin cancer disability.  


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a heart disorder have been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(d) (2012). 

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 

3.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(e) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by an October 2008 letter.  In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency.  This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA.

The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the October 2008 letter included the type of evidence necessary to establish a disability rating and effective date.    

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with the claims on appeal, the evidence of record includes statements from the Veteran, March 2009 and April VA examinations through QTC Medical Services (QTC), and an October 2009 VA examination report.  The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale.  The Board notes that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

The Board notes that in October 2008, the RO yielded negative search results using the claims file number for any outstanding VA outpatient treatment records from the Loma Linda Healthcare System (HCS), Long Beach HCS, and Los Angeles VA Medical Center (VAMC).  Additionally, neither the Veteran nor his representative has identified any outstanding private or VA treatment records for VA to obtain in connection with these claims on appeal.   

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal.  The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).



Service Connection Laws and Regulations

Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service.  It may be granting by affirmatively showing inception or aggravation during service.  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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Service connection can also be established through application of statutory presumptions.  Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309.  Other organic diseases of the nervous system is listed as a "chronic disease" and includes sensorineural hearing loss.  See M21-1MR, Part III.iv.4.B.12.a; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995).

Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In making all determinations, the Board must 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.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007).

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 the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the 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).  

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Analysis of Service Connection for a Heart Disorder

On a September 2008 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, the Veteran reported that he was diagnosed with mitral valve prolapse during service in 1978 and the disorder has been ongoing.  

Review of the Veteran's service treatment records reveal treatment and complaints for symptoms related to the heart and diagnosis of left atrial enlargement in 1978.  Specifically, a November 1978 record documents the Veteran was assessed with a benign functional murmur and an echocardiogram was suggested.  A December 1978 Referral for Civilian Medical Care, via an AEM Form 389, showed the Veteran underwent an echocardiogram for possible mitral valve disease.  Results revealed "auscultation: midsystolic click (not always constant) provocation with amylnitrite late systolic murm[u]r.  I would say it is mitral valve prolapse in echo[cardiogram] I would not verify my clinical diagnosis (sometimes it is very difficult to find the prolaps[e].  No h[e]modynamic sign of mitral insufficiency.) aortic valve normal."  

Approximately two weeks later, the Veteran underwent a cardiology consultation for completion of an additional echocardiogram, and following such testing, the Veteran was diagnosed with functional heart murmur and borderline left atrial enlargement.  It was also noted on a Medical Recommendation for Flying Duty, via a DA Form 4186, that the Veteran was medically grounded because of functional heart murmur as stated per telecon[ference] with Dr. Steiner, Flight Surgeon.  A subsequent December 1978 DA Form 4186 noted the Veteran as medically cleared to resume full class II flight duty, evaluated by cardiologists for a heart murmur which is considered functional and of no cardiologic significance.  A March 1979 DA Form 4186 also noted the Veteran was grounded in March because of functional heart murmur as stated from Fort Rucker until other tests are completed.  November 1979 in-service examination report and report of medical history further documented that the Veteran was told he had mitral valve prolapse in 1978, the Veteran had a complete work up by cardiology which showed within normal limits and no congenital deformities.  

Since separation from service, the Veteran underwent an April 2009 VA QTC examination.  The Veteran reported intermittent symptoms of mitral valve prolapse since November 1978, to include shortness of breath and dizziness.  Upon physical examination of the heart, the examiner noted it is abnormal, findings show a grade I/VI systolic murmur audible at the apex, no mid-systolic click in the lying, sitting, or standing position, and there was no evidence of congestive heart failure, cardiomegaly, or cor pulmonale.  Electrocardiogram (EKG) results showed sinus arrhythmia and one supraventricular premature beat, and chest x-ray results showed, in pertinent part, mild uncoiling of the aorta and normal heart size.  The examiner concluded that a diagnosis of mitral valve prolapse is not possible because no mid-systolic click was present on examination and in order to confirm the diagnosis an echocardiogram is necessary.  

Following results of additional testing with an EKG and 24-hour Holter monitor, the Veteran was diagnosed with left atrial enlargement with supraventricular ectopy.  The examiner noted that "[t]he cause of the patient's left atrial enlargement is unclear at this time.  His history is suggestive of episodes of supraventricular tachycardia. . . . [and] Holter monitor showed frequent premature atrial contractions and some atrial runs." 

On VA examination in October 2009, the Veteran was diagnosed with left atrial enlargement of unknown etiology based on history, physical examination, and laboratory echocardiographic data.  The examiner explained that:

	[M]itral valve prolapse with regurgitation can be a cause of left atrial 	enlargement and hypertrophy.  Nowhere in the medical records is there any 	indication that he has or has ever had mitral regurgitation and, in fact, no 	prolapse was ever seen on cardiac echo[cardiogram] although this was a 	clinical diagnosis made by an observer in the service.  His echocardiogram at 	that time did not show mitral valve prolapse.  There was a notation of 	borderline left atrial enlargement.  He currently has significant left atrial 	enlargement associated with atrial ectopy.  He did not have symptoms of 	ectopy while in the service and although he had, by his history, symptoms in 	1982 and similar ongoing symptoms which could be suggestive of a 	supraventricular arrhythmia, it has never been documented that he did have a 	supraventricular arrhythmia in 1982 or subsequently documented as causing 	his symptoms.  The fact that he did have borderline left atrial enlargement 	on an echo[cardiogram] while in the service suggests that the left atrial issue 	was beginning while in the service but given no interval documentation until 	the recent echocardiogram of progressive left atrial enlargement, I cannot 	resolve this issue without resort to mere speculation.

The Court has held that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability.  Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  In this case, the October 2009 VA examiner explained why he cannot provide an opinion.  The Board finds that the examiner's statements, as noted above, are adequate because is supported with sufficient rationale for why a nexus opinion could not be provided, yet lacks probative value for this claim on appeal due to the absence of an etiological opinion.  

Nonetheless, the lay and medical evidence of record does not show that the Veteran's subjective manifestations of the claimed heart disorder, specifically the left atrial enlargement, is attributable to an event or injury since separation from service.  Thus, the Board finds the post-service manifestations of the claimed heart disorder are not clearly attributable to intercurrent causes.

For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current heart disorder, specifically left atrial enlargement, is related to service, that is, is the same disorder that he was diagnosed with in service, and the evidence of record does not show the current disorder is clearly attributable to intercurrent causes.  See 38 C.F.R. § 3.303(d).  Therefore, the criteria for service connection for a heart disorder are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 .



Analysis of Service Connection for Bilateral Hearing Loss and Skin Cancer  

On a September 2008 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, the Veteran reported that bilateral hearing loss began during service in 1971 and has been ongoing as a result of chronic exposure to loud noise. He also reported that skin cancer developed in 2006 as a result of exposure to herbicides during military service.  In a March 2010 notice of disagreement, he asserted the skin cancer is caused by Agent Orange, the only time he has been exposed to herbicides was during service in South Vietnam, and he has had cancers removed from his back and face.  

At the outset, the Board finds the evidence of record does not demonstrate that bilateral hearing loss for VA purposes manifested to a compensable degree within one year of separation from active service.  Therefore, service connection for bilateral hearing loss, on a presumptive basis as a chronic disease, is not available in this case.  See 38 C.F.R. §§ 3.307, 3.309(a). 

A veteran, who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a certain listed disability, shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e) (list of diseases) (2012); McCartt v. West, 12 Vet. App. 164, 166 (1999).  Review of the record shows the Veteran served in Vietnam from April 11, 1971 to March 17, 1972; however, in light of whether he was exposed to an herbicide agent during service, skin cancer is not among the diseases listed under 38 C.F.R. § 3.309(e).  As a result, service connection for skin cancer on a presumptive basis as due to exposure to certain herbicide agents is not available in this case.  

The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Thus, the Board considers whether service connection is warranted for bilateral hearing loss and skin cancer on a direct basis.  

A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385 (2012).  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss).

The weight of the evidence demonstrates the Veteran does not have a currently diagnosed bilateral hearing loss disability for VA purposes.  

On VA QTC audiological examination in March 2009, the Veteran's pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15 
15 
25
LEFT
10
20
20
25 
15

The speech recognition scores, performed with the Maryland CNC word list, were 96 percent in the right ear and 100 percent in the left ear.  The examiner concluded there is no diagnosis for the Veteran's claimed condition of bilateral hearing loss because there is no pathology to render a diagnosis.  The Board acknowledges there is some degree of bilateral hearing loss beyond the normal ranges as shown by 25 decibels at the 4000 Hertz range in the right ear and at the 3000 Hertz range in the left ear.  See Hensley, 5 Vet. App. at 157.  Nonetheless, the criteria for a bilateral hearing loss disability for VA purposes are not met to show the manifestation of the disability at any time since separation from service.  

Based on the evidence of record, the weight of the competent evidence demonstrates the Veteran does not have a current diagnosis of bilateral hearing loss or residuals therefrom.  As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for bilateral hearing loss on a direct basis.  

Next with regard to skin cancer, the weight of the evidence demonstrates the Veteran does not have a currently diagnosed skin cancer disability.  Specifically, on VA QTC examination in April 2009, the physician reported there are no signs of skin disease present or scar present.

The Board acknowledges the Veteran's assertion in a November 2010 statement to the President of the United States, that the skin cancer should also have been covered in his VA records.  He explained that he applied for an appointment to be checked for skin cancer and was refused the appointment because he made "too much money."  He had the cancer removed and asked the physician if he thought it could have been caused by Agent Orange and when the physician asked what is Agent Orange, he figured he was out of luck.  

Nevertheless, based on the evidence of record, the weight of the competent evidence demonstrates the Veteran  does not have a current diagnosis of skin cancer or residuals therefrom.  As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for skin cancer on a direct basis.  

The Veteran was informed in the October 2008 VCAA letter that he must have evidence of a current disability for his claims on appeal.  He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence.  Since the weight of the competent medical evidence is against the conclusion that the Veteran meets the criteria for a diagnosis of bilateral hearing loss or skin cancer, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted.  See Brammer, 3 Vet. App. at 225.

For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claims of service connection for bilateral hearing loss and skin cancer, and these claims must be denied.  Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


ORDER

Service connection for a heart disorder is granted.  

Service connection for bilateral hearing loss is denied.

Service connection for skin cancer due to herbicide exposure is denied.  


REMAND

A remand is required in this case to ensure there is a complete record upon which to decide the issue of service connection for varicose veins of the left lower extremity.  In this case, the claims file does not include a medical opinion addressing whether the Veteran's varicose veins of the left lower extremity is related to service.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).  

Concerning the question of in-service disease, injury, or event and whether varicose veins of the left lower extremity may be associated with service, the Veteran reported on a September 2008 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, that he was diagnosed with bilateral varicose veins during service in 1978 and the disorder has been ongoing.  In a March 2010 notice of disagreement, he noted that, to his knowledge, the legs are interconnected and both were caused by the blousing rubbers worn during his military service, and the reason the right leg was listed in his service treatment records was because the damage was visual and the left was not. 

The Board acknowledges that in the August 2009 rating decision, the RO granted service connection for varicose veins of the right lower extremity because there is a history of right leg varicose veins in the service treatment records and the April 2009 VA QTC examination provided a diagnosis of venous varicosities bilateral lower extremities.

The Board finds this case presents a certain medical question that cannot be answered by the Board and is not addressed by the evidence of record.  See McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1274; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Specifically, this question concerns the relationship, if any, between the Veteran's current venous varicosities of the left lower extremity and active service, to include the Veteran's asserted in-service use of blousing rubbers.  This question should be addressed by the appropriately qualified medical professional.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).  

As a result, the Board finds that a VA medical opinion is necessary to ensure there is a complete record upon which to decide this claim on appeal.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App 120 (2007).  The RO/AMC should arrange for the Veteran's claims file to be reviewed by the physician who conducted the April 2009 VA QTC examination (or a suitable substitute if that physician is unavailable) for the purpose of preparing an addendum opinion which will assist in determining the nature and etiology of this claimed disorder on appeal.

Accordingly, the issue of service connection for varicose veins of the left lower extremity is REMANDED for the following actions:
	
1.  Furnish the Veteran's entire claims file to the physician who conducted the April 2009 VA QTC examination (or a suitable substitute if that physician is unavailable).  The physician must review all pertinent evidence of record and prepare an addendum opinion to as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current venous varicosities of the left lower extremity began during service or is otherwise linked to service, to include the Veteran's asserted use of blousing rubbers during active service.  

A rationale should be given for all opinions and conclusions expressed.  If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond.  If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available.

2.  Thereafter, the issue of service connection for varicose veins of the left lower extremity should be readjudicated.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

The Veteran and representative have the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2012).

This claim must be afforded expeditious treatment.  The law requires that all claims 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).



____________________________________________
MARK W. GREENSTREET
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).


Department of Veterans Affairs