Citation Nr: 1312602 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 10-43 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for left leg varicose veins. 2. Entitlement to service connection for left leg venous insufficiency. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In October 2012, the Board remanded the case to the RO to provide the Veteran a video hearing before the Board. The hearing, scheduled for December 2012, was cancelled by the Veteran without any indication he wanted to reschedule the hearing. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a left leg varicose vein disability and for left leg venous insufficiency that the Veteran asserts resulted from a left leg deep vein thrombosis diagnosed in December 1997. The varicose vein disability was noted in the entrance examination in May 1977. It was described as moderate and not considered disqualifying. The Veteran testified that during service, he served as a paratrooper and participated in a training exercise where he travelled from his normal duty station in Georgia to the Yakima Mountains in Washington. He then travelled back to Georgia where he noticed that he was dragging his foot when he walked. The condition was treated and diagnosed as peroneal nerve palsy. In December 1998, almost 20 years after separation, the Veteran went to a private emergency room for an anxiety attack. At that time, a Doppler study determined the Veteran had a deep vein thrombosis (DVT) of the left leg. The DVT was noted to be stable and appeared to be chronic and long standing. Subsequent Doppler studies have not noted any acute DVTs but venous insufficiency has been noted. In January 1999, the Veteran's private physician wrote that DVT can occur with prolonged standing or sitting. The context of the physician's letter addressed whether the Veteran's post-service job caused the DVT and did not discuss his military history. The physician could not definitely state whether the demands of the job caused the DVT, but noted that when discovered, the DVT had been present for some time. Another physician in February 1998 also noted he could not determine how long the Veteran had DVT before its discovery in December 1997. He also suggested the Veteran has congenital venous insufficiency that has played a role in both the varicose vein disability and DVT. The Veteran testified before the Decision Review Officer in January 2012 that he flew to and back from Washington in a troop transport plane. He described a long flight with what appears to be cramped seating conditions. It is his belief that he may have developed a blood clot on one of the flights and that is why he developed problems approximately 20 years later. He also had a letter from his VA physician who stated it was possible the service incident could have resulted in the DVT, but did not have the service treatment records to answer the question. The Veteran also questioned whether in-service surgery and anesthesia for a perirectal abscess might be the cause of the subsequent development of DVT and the discovery of venous insufficiency. The Veteran testified that the varicose vein disability was small upon entering service and caused no symptoms, but evidence in the file indicates the disability now extends from his left calf to mid thigh. VA's duty to assist requires VA to provide an examination with regard to claims for disability compensation when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's testimony of prolong existing on the two flights for the training exercise and the medical evidence of record associating prolong sitting with DVT satisfy the requirement for evidence that the claimed disability may be related to service, as the threshold for that finding is low for purposes of a VA examination. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). The Board has therefore determined that VA should provide the Veteran with a VA examination as there is an indication the disabilities claimed are related to service but insufficient competent medical evidence to make a decision on the two claims. A VA examination is required that considers whether the DVT or venous insufficiency disability resulted from the incident or incidents described by the Veteran's lay evidence as to how the injury occurred and to consider the impact of service upon the varicose vein disability noted upon entrance. See 38 C.F.R. § 3.159(c)(4) (2011); see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Further, the Veteran read the letter from the VA physician and it is not clear if he read the entire letter or a portion of the letter. A copy of letter has not been associated with the file, nor is a copy contained in the VAMC records in the file. Accordingly, the Veteran should be asked to provide a copy of the letter by the VA physician, Dr. Whittier and the RO should obtain updated VAMC records. As noted above, the Veteran's private primary care physician issued a letter that addressed whether the Veteran's post-service job caused the DVT. That letter appears to have been written in the context of a claim by the Veteran to obtain workers' compensation from his employer. No attempt has been made to obtain these records. The Board has determined that these records are similar to the types of records from a claim of disability filed with the Social Security Administration and an attempt should be made to obtain the records as there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit a copy of Dr. Whittier's letter and any copies received should be associated with the file. All efforts to obtain Dr. Whittier's letter must be documented and associated with the file. 2. The RO should ask the Veteran to submit or authorize VA to obtain any records from his employer, Neiden Iron and Metal Co., Inc. and the employer's workers compensation insurer, CNA Compensation Insurance, to include any determinations associated with the Veteran's application for workers' compensation benefits with the State of Nebraska, as well as copies of all medical records underlying the determination. Attempts should be made to obtain all records associated with the Veteran's workers compensation claim. All records/responses received should be associated with the claims file. All efforts must be documented and associated with the file. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Obtain all VAMC treatment records for the Veteran from the Omaha, Nebraska, VAMC and associated outpatient clinics from August 2010 to the present, including all records from Dr. Whittier. All attempts to obtain these records should be documented in the file. 4. Once the record development is completed, provide the Veteran with a VA vascular examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. For the varicose veins, as a varicose vein disability was noted upon entrance, the examiner is asked whether the disability worsened in service or because of service. If it did worsen in service or because of service, then the examiner is asked to offer an opinion as to whether there is clear and unmistakable (obvious or manifest) evidence that the varicose vein disability was not aggravated in service beyond the natural progression of the disease. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the deep vein thrombosis and subsequent finding of venous insufficiency of the left leg starting in December 1997 is caused by or related to the veteran's service including the Veteran's peroneal palsy in the left leg, the long flights aboard troop transport carriers in the 1979 training exercise, or as related to any other aspect of service. The examiner is advised that lay evidence of symptoms during and after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that any current symptom is derived from an injury, disease, or event in service. 4. After the development requested is completed, adjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and, after the Veteran has had time to respond, return the case to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).