Citation Nr: 1314397 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-42 675 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for varicosities of the lower right leg, with scar residuals. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to January 1955. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2009 rating decision in which the RO, inter alia, denied service connection for varicosities of the lower right leg, with scar residuals. In July 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2009. In April 2011, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the undersigned agreed to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 8 C.F.R. § 20.900(c) (2012). In July 2011 and September 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. After completing the requested action following the most recent remand, the AMC continued to deny the claim on appeal (as reflected in a February 2013 supplemental SOC (SSOC)) and returned the matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran has credibly asserted an in-service right leg injury, there is no persuasive evidence of continuity of symptoms associated with varicosities of the lower right leg since service, or of such disability for many years after service, and the most persuasive medical opinion evidence on the question of whether there exists a medical nexus between service and varicosities of the lower right leg currently diagnosed weighs against the claim. CONCLUSION OF LAW The criteria for service connection for varicosities of the lower right leg, with scar residuals, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 3,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates-in the event service connection is granted-as well as the type of evidence that impacts those determinations. The June 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the May 2009 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA and private treatment records, and December 2010, December 2011, and November 2012 VA examination reports. Also of record and considered in connection with the appeal is the transcript of the Veteran's April 2011 Board hearing, along with various written statements provided by the Veteran, his wife, fellow service members, and his representative on his behalf. The Board finds that no further RO action on this claim, prior to appellate consideration, is required. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). In this regard, the reports from the November 2012 VA examination include, as requested in the most recent remand, an opinion as to whether the Veteran has varicose veins as a result of service. While the Board has considered the argument of the Veteran's representative in her March 2013 presentation with respect to the adequacy of the rationale provided for the opinion, the opinion is clear and definitive and, in light of the other medical evidence of record, sufficient for adjudication purposes. While the Board recognizes, as also referenced by the Veteran's representative in her March 2013 presentation, that the November 2012 examination reports do not specifically and individually document consideration of some positive medical and lay evidence of record in the exact manner requested in the most recent remand, the examiner documented that he had reviewed the evidence contained in the claims file, presumably to include the positive medical evidence and lay assertions in question. In short, the Board finds the examiner exhibited sufficient medical expertise to perform the examination and that the November 2012 examination is otherwise adequate for appellate review. Accordingly, the Board finds that the RO/AMC has substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's paper claims file and the paperless, electronic (Virtual VA) file. (The Virtual VA file contains no pertinent information that is not physically of record.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The service treatment reports, to include the reports from the January 1955 separation examination, do not reflect any evidence of varicosities in the right leg or any other symptomatology or pathology involving the right leg. However, the Veteran has asserted, to include in sworn testimony to the undersigned, that he sustained an injury to the right knee during basic training when a crate fell on his right leg, resulting in cuts and bruising. Testimonial evidence from former service comrades have supported this account, and the Board found the Veteran's account as to an in-service right knee injury to be credible in the July 2011 remand and September 2012 decision/remand. From the above, the Board will again find the Veteran's account as to an in service knee injury, which he is competent to assert, to be credible. The matter now for consideration is whether, as the Veteran contends, this injury has resulted in current disability due to varicosities of the lower right leg. Private positive medical evidence supporting this assertion is of record in the form of statements from R.A.R., M.D., dated in April 2009 and November 2009. In both statements, after noting that there were no varicosities in the left leg that was not injured, this physician opined that the Veteran had varicosities in the right leg due to the in-service injury to the right knee. Negative medical evidence weighing against a conclusion that the Veteran has varicosities of the lower right leg as a result of the in-service right knee injury includes an opinion following the December 2010 VA examination. The physician who conducted this examination noted the April 2009 statement from Dr. R.A.R., but stated that he had provided no evidence to support his opinion that the Veteran's focal venous insufficiency was a consequence of the injury to his proximal leg, nor did he give a rationale for that opinion. The diagnoses following the December 2010 examination included varicose veins of the right lower leg, and the physician opined that this condition was not caused by or the result of military service or injury during military service. His rationale for this opinion was that the service treatment records did not document a right leg injury during military service and that there was no documentation of right leg problems or varicose veins within five years of separation from service. Finding the opinion following the December 2010 VA examination to be inadequate because it was based, in part, on the absence of in-service documentation of a right leg injury, the July 2011 remand requested that the Veteran be afforded another VA examination that took into account the fact that the Board had found that the Veteran had provided competent and credible testimony as to an in-service injury to the right leg. Thereafter, the Veteran underwent a VA examination in December 2011 which again resulted in the conclusion that it was less likely than not that the Veteran's varicosities were related to his reported injury in service. However, the Board, as set forth in its September 2012 Board remand, found the rationale for this opinion to be unclear, thus necessitating the November 2012 VA examination as previously described. The opinion following the November 2012 examination, which included a Doppler Ultrasound of the deep venous and arterial systems of the lower extremities, was that it was less likely as not that the Veteran's varicosities were the result of service. As a rationale for the opinion, the examiner explained that the varicosities were the result of "a primary diagnosis of a vascular condition; i.e. not [a] secondary diagnosis of injury or illness incurred during military service." He concluded by emphasizing that the Veteran's pain due to a vascular condition secondary to varicose veins had "nothing to do [with] his alleged traumatic injury sustained in military service." The post-service evidence reflects no documented indication of right knee complaints until 1989 when the Veteran was first diagnosed with a popliteal cyst, which is more than 30 years after active military service, and the first clinical indication of varicose veins is dated 20 years thereafter in the form of the statements from Dr. R.A.R. In addition, the Veteran did not assert that he had varicose veins as a result of an in-service knee injury in any communication with VA adjudicators until 2009. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Moreover, the most persuasive medical opinion on the question of whether there exists a medical relationship between current varicose veins in the right lower leg and service-that of the November 2012 VA examiner-weighs against the claim. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992), the credibility and weight to be attached to medical opinions are within the province of the Board). The Board notes that the examiner rendered this opinion after reviewing the claims file and medical records and examining the Veteran. Importantly, the examiner took into account the Veteran's report of injuring his right leg during active service, which has been accepted as credible, rather than the lack of documentation of such an injury in service. The examiner also provided a rationale for his opinion, stating that the varicose veins were related to a primary vascular condition that "had noting to do" with the in-service injury. Thus, the Board has afforded the VA examiner's opinion significant probative weight on the question of etiology of the Veteran's varicose veins. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Unlike the negative opinion from the November 2012 VA examiner, which is documented to have been based on a review of the clinical record in the claims file and is supported by a rationale, the positive opinions rendered by Dr. R.A.R. are not documented to have been based on review of the clinical record, are conclusory in nature, and are accompanied by scant, if any, rationale. Therefore, by contrast, these opinions are accorded less probative weight than the VA examiner's opinion on the matter of medical etiology. Id; see also Cathell v. Brown, 8 Vet. App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (standing for the proposition that the adjudication of the Board includes the responsibility of determining the weight to be given to the evidence of record, and this responsibility includes the authority to favor one medical opinion over another). The Board also has considered the assertions by the Veteran and his wife that he has essentially experienced continuous right knee symptoms since service. In this regard, the Board notes that, recently, United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Varicose veins are not among the diseases listed at section 3.309(a). This decision notwithstanding and as noted above, there simply is no objective evidence to document any right knee complaints until 1989, more than 30 years after service, and varicose veins are not clinically shown for twenty years thereafter. Moreover, the November 2012 VA examiner (after reviewing the claims file, to include presumably the Veteran's assertions therein) specifically found that an in-service right knee injury "had nothing to do" with the Veteran's varicose veins. Consequently, on the question of medical nexus between current varicose veins in the right lower extremity and service, the lay assertions as to continuity of symptomatology are outweighed by the probative negative November 2012 medical opinion and other evidence. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Further, as for any direct assertions of the Veteran and/or his representative that there exists a medical nexus between varicose veins of the right lower extremity and the presumed in-service right knee injury-the matter upon which this claim turns-the Board emphasizes that such a matter is within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the above named individuals are shown to have the appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinion as to the etiology of any currently diagnosed varicose veins of the right lower extremity; as such, these lay assertions have no probative value. See, e.g., Jandreau, 492 F. 3d at 372. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Bostain v. West , 11 Vet. App. 124, 127 (1998) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board notes, however, that, by contrast, comments as to etiology made by the Veteran's wife, a retired registered nurse, represent medical evidence by virtue of her training . See May 2011 statement in which she indicates that she was a registered nurse; statement by the Veteran's representative at the April 2011 hearing in which she was identified as a registered nurse (Transcript, p. 3) However, the record raises a question as to whether she is actually competent to opine on the matter of the etiology of the Veteran's right lower leg varicosities, given her November 2012 statement indicating that she was a retired registered nurse who worked in the field of geriatrics. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (a nurse's statement may constitute competent medical evidence where the nurse has specialized knowledge regarding the area of medicine or participated in treatment). Even assuming, arguendo, that she is competent to provide such an opinion, in her most pertinent comments in November 2012, she merely opined as follows: As varicosities can occur with aging and can be caused by an injury, it is conceivable, I believe, that this would not have been apparent when the injury was sustained as a young man. To the extent that the above statement attempts to relate current varicosities to service, the Board notes the use of the word "conceivable" indicates that the statement is merely speculative, and hence, not persuasive. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). In any event, the wife's tenuous, limited opinion-which is not shown to be have been based on review of the clinical record-is outweighed by the more definitive opinion of the November 2012 examiner, who assessed the Veteran current varicosities as a "primary vascular condition" that was unrelated to the reported in-service injury. Further, the Board again notes that, by her own report, the Veteran's wife's specialty was in geriatrics, and there is no indication that her training in this field would include sufficient knowledge of vascular conditions such that her opinion should be accorded equal or greater weight than that of a physician trained in such matters. As a final point, the Board emphasizes that the Veteran's own reported history (to include as to the onset of the claimed disability) reflected in his medical records does not constitute persuasive evidence in support of the claim. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). For all the foregoing reasons, the Board finds that the claim for service connection for varicosities of the lower right leg, with scar residuals, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for varicosities of the lower right leg, with scar residuals, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs