Citation Nr: 1311189 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-19 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for varicose veins of the right leg. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to January 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal of November 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). In a decision of May 2011, the Board found that new and material evidence had, in fact, been received sufficient to reopen the Veteran's previously-denied claim. At that same time, the Board remanded for additional development the issue of entitlement to service connection for varicose veins of the right leg on a de novo basis. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. The Veteran's varicose veins of the right leg unequivocally preexisted his period of active military service. 2. The Veteran's preexisting varicose veins of the right leg more likely than not underwent a clinically identifiable permanent increase in severity during active military service. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, preservice varicose veins of the right leg were aggravated during active military service. 38 U.S.C.A. §§ 1111, 1131, 1153, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in October 2008, and in May and August 2011, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. Currently, there is no evidence that additional records have yet to be requested, or that a VA examination is in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, the Board wishes to make it clear that it has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, and those of his spouse, offered during the course of an RO hearing in September 2009, and at a subsequent videoconference hearing before the undersigned Veterans Law Judge in March 2011, as well as VA (including Virtual VA) and private treatment records and examination reports, and various statements from the Veteran's family members. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection The Veteran in this case seeks service connection for varicose veins of the right leg. In pertinent part, it is contended that the Veteran's varicose veins of his right lower extremity had their origin during, or were in some way aggravated by, the Veteran's period of active military service. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of the incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Pursuant to applicable law and regulation, 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 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). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b) (2012). A preexisting injury or disease will be considered to have been aggravated during active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Pertinent evidence of record is to the effect that the Veteran's service treatment records are unavailable, in that such records were apparently destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. However, according to the Veteran's DD Form 214, the authority for his discharge from service was Chapter 9, AFM 35-4 SDN 277. Significantly, the military separation code 277 denotes physical disability which exists prior to service, established by a Medical Board, with discharge by reason of physical disability upon application by the individual. Private records dated in September 1964 reveal that the Veteran was hospitalized at that time for prominence involving the veins in his right lower extremity with accompanying severe pain. Physical examination showed evidence of swelling in conjunction with incompetence of the right and small saphenous veins. Also noted was prominence of the veins of the right thigh and inner aspect of the right leg. While hospitalized, the Veteran underwent right sapheno-femoral vein ligation with stripping of the small and great saphenous veins and multiple segmental vein ligations. The pertinent diagnosis noted was severe right varicose veins. Private records dated in November 1969 reveal that the Veteran was hospitalized at that time for thrombophlebitis of the right leg. Significantly, at the time of admission, the Veteran gave a "longstanding" history of varicose veins "going back ten years," with vein stripping approximately five years ago. Private records dated in January 1970 reveal that the Veteran was hospitalized at that time for recurrent superficial thrombophlebitis secondary to dilated tributaries of the superficial saphenous system. During hospitalization, the Veteran underwent ligation of the tributaries of the superficial saphenous system at the sapheno-femoral junction, with spot ligation of multiple perforators, three in number. Private records dated in October 1974 reveal that the Veteran was hospitalized at that time for compression treatment of lymphedema of the right leg secondary to chronic venous disease. At the time of a period of private hospitalization in April and May 1982, it was noted that the Veteran had four brothers, all of whom were in good health, with the exception that they "all had varicosities." A private venogram of the right leg conducted somewhat later in May 1982 was consistent with the presence of multiple dilated tortuous channels throughout the right leg and thigh consistent with varicose veins. In a private medical record of March 1983, it was noted that the Veteran had suffered from multiple saphenous vein varicosities and communicators since he was a teenager. Further noted was that attempts had been made to strip the saphenous vein in 1965, and once again in 1969, following which several tributaries had been ligated by another physician. At the time of a period of private hospitalization in February 1988, it was noted that, since apparently his high school years, the Veteran had experienced episodes of recurrent phlebitis. Further noted was that the Veteran suffered from "extremely bad" varicose veins, as demonstrated by the fact that he had undergone two previous venous strippings on his right leg. During a period of private hospitalization in January 1989, it was noted that the Veteran had been plagued by recurrent thrombophlebitis, including what had been diagnosed as deep vein thrombophlebitis. Significantly, at the time of admission, it was noted that the Veteran began having problems with phlebitis in his late teens, and had experienced recurrent difficulties. Reportedly, the Veteran had been admitted on at least two previous occasions during the past year for documented superficial thrombophlebitis. A private operative report dated in mid-June 1989 reveals that the Veteran was hospitalized at that time for stripping and ligation of the right greater saphenous vein. In correspondence of early November 1990, one of the Veteran's private physicians indicated that he had reviewed the Veteran's records from 1964, which revealed that, at that time, another physician had performed a vein stripping and ligation of the great saphenous-short saphenous vein in the Veteran's right leg. Further noted was that, in 1970, another physician performed a venous operation on the Veteran's right leg. Finally, in 1989, another physician performed a third venous operation on the Veteran's right leg. A private operative report dated in late August 1993 reveals that the Veteran was hospitalized at that time for ligation and stripping of the right lesser saphenous vein and branches. In correspondence of mid-May 2008, the Veteran's private physician indicated that he was writing on the Veteran's behalf in order to clarify the etiology and evolution of his chronic venous stasis and its resulting disabling chronic venous ulcerations. According to the Veteran's physician, the information he was utilizing had been gleaned from the Veteran's previous medical and military records, a thorough medical history, and a complete physical examination. Moreover, according to the Veteran's physician, he had been personally involved in the Veteran's medical care since 1984. By the physician's report, the Veteran was free of any venous ulcerations or varicosities at the time of his induction into the military in June of 1960. In fact, his initial military physical examination failed to even detect any varicosities of the lower extremities. Several months later, the Veteran had not only developed multiple tortuous varicose veins bilaterally, but had already developed several open ulcerations which required hospitalization at that time. According to the Veteran's physician, this newly developed medical condition precluded the Veteran's continued enlistment, and he was honorably discharged in January 1961. Significantly, in the opinion of the Veteran's physician, while multiple factors might have been involved in the development of venous stasis and ulcerations, there was "no doubt" in his mind that the Veteran's condition began just after his induction into service. Moreover, it was his clinical judgment that the Veteran's lifelong problems of venous insufficiency and ulcerations were the direct result of physical stress at basic training and the long hours of being on his feet, both of which were prerequisites for military service. In correspondence of June 2008, another of the Veteran's private physicians wrote that the Veteran had enlisted in the United States Air Force in June of 1960, at which time he underwent a physical examination. Reportedly, at that time, the Veteran was observed to have severe venous insufficiency of the right leg. According to his physician, the Veteran went through boot camp and training for approximately 6 to 7 months, during the course of which he developed ulcerations in his right lower extremity due to aggressive marches and training. Significantly, the Veteran's physician indicated that he had been taking care of him since 1987. In the opinion of that physician (a vascular surgeon), the Veteran's condition preexisted his entry upon active service, and was aggravated by the long hours of standing and long marches, which ultimately resulted in ulcerations of his right lower extremity due to severe venous insufficiency and venous hypertension. In the opinion of the Veteran's physician, at the time of his entrance into service, he suffered from a preexisting condition, with his period of time in the Air Force being sufficient to exacerbate his severe venous insufficiency, resulting in ulcerations of the right lower leg. In correspondence from the Veteran's sister dated in December 2008, she indicated that the Veteran was her older brother, and that he had always had difficulty with his leg, "including leg ulcers, even when he was very young." Correspondence from the Veteran's brother dated in December 2008 is to the effect that, while living with the Veteran "between 1963 and 1965," he was aware of the Veteran's chronic pain, which was "caused by varicosities of his right leg." At the time of an RO hearing in September 2009, the Veteran testified that his "physical leg problem" had been present all of his life. See Transcript, p. 3. In correspondence of mid-April 2010, the same private physician who had provided the aforementioned May 2008 statement indicated that, as noted in his letter of May 2008, when inducted into the military in June 1980, the Veteran's initial physical examination failed to detect venous insufficiency caused by varicosities, which should have been seen on clinical examination. That physician indicated that, in his professional opinion, the Veteran's basic training in the Armed Forces would have exacerbated varicosities due to the "long hours of standing, marching, and running during boot camp." According to the Veteran's physician, any exacerbation of the Veteran's condition typically resulted from trauma to the leg. Moreover, as reported to him by the Veteran, he had developed an ulceration on his right lower extremity, which was a problem of venous insufficiency caused by varicosities, given that the insufficient blood flow resulted in ulcerations caused by seepage from the vessel, forming ulcerations. Based on the aforementioned, it is clear that the Veteran's varicose veins of the right lower extremity preexisted his period of active military service. However, with the resolution of all reasonable doubt in the Veteran's favor, the Board is of the opinion that, over the course of the Veteran's relatively short period of active military service, his preexisting varicose veins of the right leg increased in severity beyond natural progress. In that regard, and as noted above, at the time of the Veteran's discharge from service, it was noted that he was being separated based on a physical disability which existed prior to service, as established by a Medical Board. While it is true that the Veteran's service treatment records are unavailable, making it impossible to determine with certainty the medical disability for which he was discharged, given the Veteran's long history of varicose veins, and the fact that he underwent vein stripping and ligation as early as 1964, only three years following his discharge from service, it is reasonable to conclude that, to the extent the Veteran was suffering from varicose veins at the time of service entrance, that disability increased in severity during his period of active military service. Significantly, a number of the Veteran's private physicians have concluded as much. Based on the aforementioned, and with the resolution of all reasonable doubt in the Veteran's favor, the Board is of the opinion that the Veteran's preexisting varicose veins of the right leg underwent a clinically identifiable increase in severity beyond natural progress during his period of active military service. At the very least it is not possible to determine clearly and unmistakably that there was no aggravation. Accordingly, an award of service connection for varicose veins of the right leg is in order. ORDER Entitlement to service connection for varicose veins of the right leg is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs