Citation Nr: 1313231 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 07-27 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for disability manifested by poor circulation. 2. Entitlement to service connection for disability manifested by swelling of the legs and knees. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had verified active military service from January 8, 1952 to January 7, 1954, and from November 3, 1954 to November 1, 1957. He also had additional service with a reserve component. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).) During the current appeal, and specifically in July 2008, a hearing was held at the Indianapolis RO before a Hearing Officer. A transcript of the testimony is in the claims file. In August 2009, the Board remanded the Veteran's claims of service connection for arthritis, hearing loss, tinnitus, a disability manifested by poor circulation, and a disability manifested by swelling of the legs and knees for further procedural and evidentiary development. Specifically, the Board requested that the RO (1) obtain the appropriate release of information form and secure the Veteran's outstanding private medical records from St. Vincent Hospital; and (2) schedule the Veteran for VA examinations for each of his claimed disabilities. In March 2010, the Appeals Management Center (AMC) initiated a request to have the Veteran scheduled for multiple VA examinations in connection to his claimed disorders. The examinations were completed in April 2010, and copies of the VA examination reports were associated with the claims file. The AMC also sent the Veteran a letter and asked that he complete the attached VA Form 21-4142, Authorization and Consent to Release Information form for any of his private healthcare providers, including St. Vincent Hospital. In a May 2011 decision, the Board denied the Veteran's claim of service connection for arthritis, and remanded the remainder of the Veteran's claimed disorders. The Board remanded the Veteran's remaining claims so he could be scheduled for additional VA examinations, and once again instructed the agency of original (AOJ) to attempt to retrieve the Veteran's outstanding private medical records. The Veteran was scheduled for additional VA examinations in connection with his claimed hearing loss, tinnitus, disability manifested by poor circulation and disability manifested by swelling of the legs and knees in June 2011. Unfortunately, the medical opinions obtained upon remand were also found to be inadequate. In November 2012, the Board again remanded the Veteran's claims and asked that the VA examiners who evaluated the Veteran in June 2011 review the Veteran's claims folder and provide addendum opinions to support the conclusions reached in the June 2011 medical opinions. The addendum opinions were obtained in January 2013, and copies of these opinions have since been associated with the claims file. While the Board finds the January 2013 opinion to be adequate with respect to the Veteran's claim for service connection for a disability manifested by poor circulation, the Board does not find the opinion to be adequate with regard to his claim of service connection for a disability manifested by swelling of the legs and knees. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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.) By a February 2013 rating action, the AMC granted service connection for hearing loss and tinnitus. The Veteran's hearing loss was evaluated as 100 percent disabling, and the Veteran's tinnitus was rated as 10 percent disabling. The Board finds that these grants of service connection for hearing loss and tinnitus constitute a full award of the benefits sought on appeal with respect to these two issues. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). (The record on appeal contains no indication that the Veteran has appealed the downstream elements of effective date or initial rating for either disability; thus, these matters are not in appellate status.) (The claim of service connection for a disability manifested by swelling of the legs and knees is addressed in the remand that follows the decision below.) FINDING OF FACT A disability manifested by poor circulation, which has been diagnosed as peripheral vascular disease of lower extremities and chronic venous stasis, was first identified many years after active duty and is not related to any injury, disease or event incurred in service. CONCLUSION OF LAW The Veteran does not have a disability manifested by poor circulation that is the result of disease or injury incurred in or aggravated during active military service; nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to render a decision has been accomplished. In this respect, through the September 2005 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the above-referenced notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned notice letter. Further, the Veteran was informed of the laws and regulations governing the assignment of disability ratings and effective dates in the July 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that the duty to provide notice relating to the Veteran's claim was not fully satisfied prior to the initial unfavorable decision by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by re-adjudication of the claim); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by re-adjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of the July 2008 notice letter that fully addressed all notice elements. Specifically, the July 2008 notice letter informed the Veteran of his and VA's respective duties for obtaining evidence and gave examples of the types of medical and lay evidence that the Veteran could submit or ask VA to obtain in support of his claim. This notice letter also informed the Veteran of the laws and regulations governing the assignment of disability ratings and effective dates as required under Dingess. Although this notice letter was not sent before the initial decision in this matter, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond. The RO also re-adjudicated the claim by way of an April 2009 supplemental statement of the case. The Board further notes that although the Court has held in Mayfield, that post-decisional documents are inappropriate vehicles with which to provide notice, the RO in this case provided VCAA-compliant notice that was followed by re-adjudication of the Veteran's claim. The Board concludes that during the administrative appeal process the Veteran was provided the information necessary such that further action to provide additional notice would be merely duplicative of what has already transpired. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his December 1953 and October 1957 service separation examination, VA outpatient treatment records, VA examination reports, and statements from the Veteran, to include his July 2008 testimony at an RO hearing. During his July 2008 hearing, the Veteran stated that he was in receipt of Social Security Administration (SSA) benefits. The Board notes, however, that in January 2007, the AOJ sought to obtain the Veteran's SSA records. A response was received in February 2007 indicating that the Veteran's SSA folder had been destroyed and the SSA decision, and any records relied upon, were therefore unavailable. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board is aware that the Veteran's service treatment records (STRs) consist only of his separation examination reports. In response to two requests for the Veteran's complete STRs the National Personnel Records Center (NPRC) responded that the Veteran's STRs were likely destroyed in a 1973 fire at the NPRC. A formal finding regarding the unavailability of these records was made in February 2009 and is documented in the claims folder. In a March 2009 letter, the Veteran was informed that his STRs were unavailable for review and was provided with a description of the efforts undertaken to obtain those records. The Veteran was also provided with a list of documents that he could substitute for his STRs. The Board is satisfied with the efforts as outlined by the RO and finds that the March 2009 letter complies with the requirements of 38 C.FR. § 2.159(e) (2012). Pursuant to the May 2011 and November 2012 remand instructions, the Veteran was also afforded a VA examination in June 2011 and an additional medical opinion was obtained in January 2013 in connection with his claim, and in accordance with 38 C.F.R. § 3.159 (c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the June 2011 VA examination report in conjunction with the January 2013 medical opinion to be adequate. The examination included a review and discussion of the Veteran's existing medical records, an interview with the Veteran including a discussion regarding his medical history, and a thorough physical examination of the Veteran's vascular and arterial system. Based on a review of the Veteran's claims file and an evaluation of the Veteran, the same examiner provided an etiological opinion concerning the Veteran's claimed disorder and service, and included the rationale upon which the opinion was based. The Board finds that the January 2013 addendum, combined with the June 2011 examination report, addresses all the necessary directives listed in the May 2011 and November 2012 Board remands. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. Certain chronic diseases, including arteriosclerosis, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). The Board notes that VA has heightened duties when the Veteran's service treatment records have been destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the case law does not establish a heightened benefit-of-the-doubt standard, only a heightened duty of the Board to consider applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran maintains that he began developing a disability manifested by poor circulation in service. A review of the available service treatment records is negative for any evidence of poor circulation or vascular problems. The clinical evaluation of the Veteran's vascular system was shown to be normal at both the December 1953 and October 1957 separation examinations. In addition, the Veteran had a physical profile of 'P1' at both examinations. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Indeed, the Board further observes that the post-service record on appeal is similarly negative for any findings of complaints, treatment or diagnosis of a disability manifested by poor circulation until several decades after service. In fact, the first post-service medical evidence of record pertaining to the Veteran's circulatory system is a July 2005 VA primary care note reflecting an assessment of chronic venous stasis. This treatment report is dated nearly forty-eight years after the Veteran's separation from service. Indeed, the Veteran first presented at the VAMC with complaints of bilateral leg swelling in July 2005. The treatment provider assessed him with chronic venous stasis and attributed his swelling to this condition. VA outpatient records dated from July 2005 to June 2006 reflect diagnoses of venous stasis and chronic leg edema due to venous insufficiency. During an August 2008 podiatry consultation, an evaluation of the lower extremities showed that the dorsal pedis (DP) and posterior tibial (PT) pulses were "1/4 diminished yet palpable" bilaterally. The "[c]apillary fill time to digits [was] WNL (within normal limits)" and there were no signs of cyanosis or clubbing. The treatment provider did identify "[e]dema + 1 pitting present in the bilateral ankles" and the neurology portion of the evaluation revealed a grossly intact epicritic sensation bilaterally. Based on this evaluation, the Veteran was assessed with peripheral vascular disease and neuropathy due to diabetes. The Veteran was afforded a VA arteries and veins examination in April 2010, at which time the examiner noted a history of varicose veins or post-phlebitic syndrome and persistent edema of the lower legs. The examiner did not detect the presence of any visible or palpable varicose veins, and results from a Doppler vascular study of the lower extremities were shown to be normal. It was noted, however, that certain limitations of the study may have included body habitus and arterial calcification, and the impression given reflected only those adequately visualized. According to the examiner, the Veteran's symptoms may indicate the need for further diagnostic testing. Based on her evaluation of the Veteran, as well as her review of the documented Doppler study results which were negative for evidence of poor circulation, the examiner opined that the Veteran's poor circulation of the lower extremities was not caused by or a result of his military service. However, the examiner did not comment on whether the Veteran suffered from a disability manifested by swelling in the legs and knees; nor did she comment on the etiology of the Veteran's persistent edema. In light of the fact that the examiner did not discuss the nature and etiology of the Veteran's other claimed disorder, and the previous medical evidence of record suggesting that the Veteran did suffer from venous insufficiency, and further taking into consideration the April 2010 VA examiner's suggestion that further testing might be necessary, the Board determined that the April 2010 VA examination report was not adequate for rating purposes. Pursuant to the May 2011 remand, the Veteran was afforded another VA examination in June 2011, at which time, the examiner acknowledged a history of varicose veins or post-phlebitic syndrome in the upper legs. The examiner also conducted the appropriate tests, to include a lower extremity arterial (LEA) Doppler study, the impression of which revealed bilateral superficial femoral artery (SFA) with moderate distal ischemia at rest. Upon physical examination, the examiner observed bilateral 2+ pedal edema extending to the mid shin region. Based on her discussion with, and evaluation of the Veteran, the examiner diagnosed the Veteran with peripheral vascular disease of the lower extremities, which she indicated to be the cause of poor circulation in the Veteran's feet, and pedal edema. The examiner then opined that the Veteran's swelling in the lower extremities and poor circulation were not caused by or a result of an in-service illness. The basis of the examiner's opinion, however, is somewhat unclear from the examination report, in part because the report contained in the claims folder is not fully available in that the text on the right hand side of the page has been cut off. Further, while the examiner stated that the Veteran's pedal edema was likely due to a combination of medical and lifestyle factors unrelated to his military service, the report contains no discussion of what specific medical problems and lifestyle factors the Veteran was found to have that would account for his pedal edema. While the examiner concluded that the Veteran's poor circulation was not caused by an in-service event, she did not provide a rationale or explanation for her opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide a veteran with a medical examination, it must ensure that such examination is an adequate one). In November 2012, the Board determined that the June 2011 VA examination was not adequate with respect to whether the Veteran's claimed disorders were incurred in service. Pursuant to the November 2012 Board remand, the Veteran's claims was referred to the same examiner who conducted the June 2011 VA examination, so she could provide an addendum to her report setting forth a detailed rationale for her opinions regarding the etiology of the Veteran's claimed disorders. The Veteran's claims file was referred again to the June 2011 VA examiner in January 2013, and in an extended opinion, the VA examiner, in reviewing the June 2011 VA examination report, concluded that the Veteran's poor circulation, leg and knee swelling, and pedal edema were not caused by or the result of an in-service cause. According to the examiner, the Veteran's pedal edema and leg and knee swelling were caused by his venous stasis, a high salt diet, limited activity, excessive sitting with the legs bent, being on his feet for long periods of time, and failing to wear his support stockings or take his medication. The examiner also noted that the Veteran's diagnosed circulatory disorder was caused by his atherosclerosis. According to the examiner, leg pain is the cardinal symptom associated with arterial disease. The examiner also referenced the Veteran's October 1957 separation examination, wherein no abnormalities were claimed or recorded. The examiner further noted that laboratory findings for albumin, glucose, and cardiolipin were negative, and report of the chest x-ray was also shown to be negative. The examiner also noted that the Veteran's blood pressure and pulse were recorded and shown to be in the normal range. According to the examiner, there was nothing in the available service records, or in the Veteran's verbalized history as recorded at the June 2011 VA examination, that would support a connection between the Veteran's current symptoms and his military service. In summary, there was no report or evidence of any condition around the time of the Veteran's separation from military service; nor was there a report of his claimed conditions until decades following separation from the military. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a disability manifested by poor circulation. First, there is no evidence that the Veteran's chronic venous stasis or peripheral vascular disease of the lower extremities first manifested within the first post-service year after the Veteran's discharge from service in November 1958, nor has the Veteran so contended. As such, service connection on a presumptive basis is not warranted for a circulatory disorder (arteriosclerosis). With respect to direct service connection, the competent medical evidence of record does not relate the Veteran's chronic venous stasis or peripheral vascular disease of lower extremities to service. Indeed, in the January 2013 VA medical opinion, the examiner reviewed the Veteran's service and post-service treatment records, and concluded that any disability manifested by poor circulation was not related to his service. The VA examiner attributed the Veteran's bilateral femoral artery disease to his atherosclerosis and provided a medical explanation as to why this was the case. The VA examiner further referenced the Veteran's available service reports which were negative for any signs or manifestations of vascular and/or arterial problems. In addition, the VA examiner took note of the Veteran's self-reported medical history and still found nothing that would support a connection between his current circulation problems and his military service. A collective review of the April 2010 and June 2011 medical opinions further supports the January 2013 VA medical opinion; namely that the Veteran's peripheral vascular disease and chronic venous stasis were not traceable to military service. In addition, the VA examiner concluded that the Veteran's pedal edema was neither caused, nor a result of an in-service condition. She attributed the Veteran's pedal edema to medical and life-style factors, and further explained that certain factors such as a his diagnosed venous stasis, high salt diet, limited activity, excessive sitting with the legs bent, being on his feet for long periods of time, and failing to take his medication or wear his support stockings caused the Veteran's pedal edema. Even if the Veteran's contentions could be read as claiming continuity of symptomatology since service, the evidence does not show that the Veteran sought treatment for his poor circulation for many years after service. Indeed, the earliest post-service evidence of record reflecting a diagnosis of chronic venous stasis is dated in July 2005, nearly forty-eight years after the Veteran's separation from service. In the absence of any objective evidence to support complaints of continuity of symptomatology in the years since service, the initial demonstration of the disability at issue, forty-eight years after service, is too remote from service to be taken as evidence of continuity of symptoms since service, and diminishes the reliability of the Veteran's current recollections. Maxson v. Gober, 230 F.3d 1130 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Moreover, the Board notes that during the July 2005 treatment visit, the Veteran asserted that the swelling in his legs (a symptom subsequently attributed to his chronic venous stasis) just began the day before. In addition, at both VA examinations, while the Veteran reported that the poor circulation in his feet had its onset in service, he was unsure about the type of symptoms in existence at initial presentation. Moreover, the Board notes that the Veteran had the opportunity to file a claim for this disability given the fact that he filed a claim for his hearing loss in November 1972; however, no such claim was filed. In addition, the Veteran began receiving treatment at the Indianapolis VAMC for various health-related conditions in 1998, but failed to mention or discuss any manifestations of a disability manifested by poor circulation. The fact that the Veteran had the opportunity to file a claim and receive medical treatment for his poor circulation closer in time to his discharge from service, but did not do so, weighs against any contentions of continuing symptoms since service. Accordingly, and based on this evidentiary posture, the Board concludes that service connection for a disability manifested by poor circulation based on continuity of symptomatology is not warranted. In reaching this determination, the Board has also considered the lay statements of record. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997), Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991)("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Board acknowledges the Veteran's reported history of varicose veins, a condition capable of lay observation. Indeed, in Barr v. Nicholson, 21 Vet. App. 303, 308 (2007), the Court indicated that varicose veins are a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by a lay person. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." See Id. at 309. Thus, any lay testimony provided by the Veteran regarding varicose vein symptomatology in service represents competent evidence. However, as previously discussed above, the Board notes there is nearly a forty-eight year gap between the Veteran's separation from service and the first post-service evidence of record indicating he suffered from any circulatory problems. While the Veteran is competent to report what he observed, the Board does not find his recollections to be persuasive in view of the absence of evidence supporting his contentions, and in light of the competent medical evidence of record. See Maxson v. Gober 230 F.3d 1330, 1333 (Fed. Cir. 2000). Indeed, while the Veteran reports a history of varicose veins and post-phlebitic syndrome, and claims that his circulatory problems arose in service, when asked what type of symptoms were present upon initial presentation, the Veteran reported that he was unsure. As previously noted above, the Veteran filed a claim for service connection for hearing loss in November 1972, but did not do the same with respect to a circulatory problem, despite his claim that these problems first manifested in service. It would seem that if the Veteran was suffering from a disability manifested by ongoing poor circulation, this would have been an opportunity for him to file a claim seeking service connection for this disability. Consequently, the Board finds that the competent medical evidence of record weighs against the Veteran's claim. After considering the probative value of the evidence in this case, the Board finds the evidence against the Veteran's claim for a disorder manifested by poor circulation to be more persuasive than the evidence in favor of the claim. Without evidence of sufficient probative value to support a relationship between his chronic venous stasis or peripheral vascular disease and service, there is a lack of persuasive medical evidence to support his claim. As noted above, there is a forty-eight year gap without any objective clinical evidence to support an assertion of continuing symptomatology, the Veteran's own statements have been contradictory, and the persuasive objective medical evidence of record does not relate the Veteran's current chronic venous stasis or peripheral vascular disease of the lower extremities to service. The preponderance of the evidence is against the claim, so service connection for a disability manifested by poor circulation is not warranted. ORDER Entitlement to service connection for a disability manifested by poor circulation is denied. REMAND Most recently, in November 2012, the Board remanded this claim, and referred the Veteran's claims file to the same examiner who evaluated him in June 2011, instructing the examiner to provide an opinion as to whether the Veteran's symptoms of swelling of his legs and knees can be attributed to any specific disability. The remand instructions specifically indicated that part of the Veteran's claim was for disability manifested by swelling of the legs and knees separate from his pedal edema. See November 2012 Remand, p. 9. As outlined above, in the January 2013 opinion, the same VA examiner reiterated that a disability manifested by swelling in the legs and knees was neither caused by nor related to service. She further determined that the Veteran's pedal edema, and leg and knee swelling were caused by a myriad of medical and lifestyle factors, to include his venous stasis, a high salt diet, limited activity, excessive sitting and being on his feet for long periods of time. The Board notes that a July 2005 VA treatment note also attributes the Veteran's bilateral leg swelling to his chronic venous stasis. While some of the medical evidence appears to indicate that the swelling in the Veteran's legs and knees are symptoms of his chronic venous stasis, the record remains unclear as to whether these symptoms may also be attributed to another disability separate and distinct from his chronic venous stasis. The VA examiner did not state as such, and a July 2005 VA emergency note does reflect an initial assessment of mild leg edema. Indeed, the VA examiner attributed the Veteran's bilateral leg and knee swelling to multiple factors, to include his chronic venous stasis. However, based on the evidence of record, the Board is still unclear as to whether the Veteran's swelling of the legs and knees can be attributed to another disability (beyond venous stasis which has been addressed in the decision above). Accordingly, the Board finds that the Veteran's claim for service connection for a disability manifested by swelling of the legs and knees must be remanded again so the AOJ can request from the examiner who conducted the June 2011 VA examination and provided the January 2013 addendum, an additional addendum addressing whether the Veteran's symptoms of swelling of his legs and knees may in fact be attributed to any disability other than a vascular one, and if so, whether this disability was incurred and/or related to his military service. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the VA examiner who provided the January 2013 addendum opinion in connection with the Veteran's claim of service connection for a disability manifested by swelling of the legs and knees. The claims folder and a copy of this remand must be made available to, and reviewed by, the examiner. (The examiner should also take note of the VA emergency note dated in July 2005 which reflects an assessment of mild leg edema.) Following a review of the record, the examiner must provide an opinion as to whether the Veteran's symptoms of swelling of his legs and knees can be attributed to any specific disability separate from a vascular disease. (In this regard, the Board emphasizes that the Veteran is claiming a disability manifested by swelling of the legs and knees separate from his pedal edema and chronic venous stasis.) If such a disability exists, the examiner should express an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any diagnosed disability, had its clinical onset in service or is otherwise related to the Veteran's military service. If the examiner finds that the Veteran's symptoms of swelling in his legs and knees cannot be attributed to any specific disability other than a vascular disease such as venous stasis, then she must state so and provide an explanation for the conclusion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) (If the examiner who conducted the June 2011 examination and provided the January 2013 opinion is no longer available, the file should be referred to a clinician with sufficient expertise to address the questions set out above. If further examination of the Veteran is required, this should be scheduled.) 2. The AOJ should ensure that the development requested above is completed. Thereafter, re-adjudicate the claim of service connection for disability manifested by swelling of the legs and knees. If a benefit sought is not granted, the Veteran should be provided with a supplemental statement of the case. He should be given opportunity to respond before the case is returned to the Board. 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). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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 F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs