Citation Nr: 1316360 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 08-01 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for amputation of the fourth toe of the left foot, to include as secondary to varicose veins. 2. Entitlement to service connection for amputation of the second toe of the right foot, to include as secondary to varicose veins. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from May 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was remanded for further development by the Board in July 2012 to allow the Appeals Management Center (AMC) to readjudicate the issues after the most recent VA examination. The AMC issued a supplemental statement of the case in February 2013. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT The Veteran's amputation of the fourth toe of the left foot and the second toe of the right foot did not occur during service, and the most probative evidence indicates that the Veteran's toe amputations are not related to his service connected varicose veins. CONCLUSIONS OF LAW 1. The criteria for service connection for amputation of the fourth toe of the left foot, to include as secondary to varicose veins, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for service connection for amputation of the second toe of the right foot, to include as secondary to varicose veins, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The 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 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). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through VCAA letters dated in March 2006, prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes VA treatment records, VA examination reports, private treatment records, service treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting medical literature and medical and professional opinions to support his claim. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the record. 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 appellant 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the 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). The Veteran contends that he underwent amputation of multiple toes that is causally or etiologically related to his service-connected varicose veins. The Board notes that the amputations have an instantaneous onset. These amputations occurred in June 2003 and June 2004, more than 40 years after separation from service. Therefore, the Board finds that the amputations did not occur during service. Post-service, the Veteran has been diagnosed with gangrene of the feet, peripheral vascular disease, chronic venous insufficiency, arterial insufficiency, and arterial occlusive disease of the lower extremities, as well as diabetes, hypertension, hyperlipidemia, hypothyroidism, coronary artery disease, and cardiac arrhythmias. The Veteran was afforded a VA examination in July 2006. The examiner noted that the Veteran's varicose veins were aggravated in the service and in consecutive years he had a bilateral bypass of the lower extremities with loss of the fourth toe on the left foot and the second toe on the right foot. The Veteran was afforded another VA examination in November 2009. The examiner reviewed the claims file, performed a thorough physical examination, and provided an opinion regarding amputation of his toes. The examiner found that amputations of the fourth toe on the left foot and the second toe on the right foot are less likely than not secondary to varicose veins and more likely than not secondary to peripheral vascular disease, diabetes, and smoking history. The Veteran attended a third VA examination in October 2011. The examiner again reviewed the claims file, noted the Veteran's history, and performed a physical examination. The Veteran informed the examiner that his amputations were due to his service aggravated varicose veins. The examiner found that the amputation of the left toe was necessary because of peripheral arterial vascular disease that caused gangrene of the toe. The examiner noted that the varicose veins and removal of the greater saphenous vein did not cause the arterial obstruction or gangrene of the toes, rather, the peripheral vascular disease did. The Veteran received a final VA examination in February 2013. The examiner reviewed the claims file, provided a thorough history of the Veteran's vascular difficulties and lower extremity disabilities, and performed a physical examination. He noted that the Veteran had varicose veins in both legs which were surgically removed by way of vein ligation and stripping procedures without complications while in the military. The examiner noted the Veteran's complaints of achy pain in the legs over the years. Despite those complaints, the examiner noted that no other vascular problems occurred until the early 2000s when the Veteran developed ischemic changes and recurrent ulceration in the feet. He had multiple vascular studies and angiograms, which exhibited extensive arterial occlusive diseases in the bilateral lower extremities. The examiner also noted the Veteran's long history of multiple medical problems including insulin-dependent diabetes, hypertension, hyperlipidemia, hypothyroidism, coronary artery disease, and cardiac arrhythmias. As the Veteran's arterial circulation was further deteriorated with ischemic changes and toe gangrene, he had undergone arterial revascularization procedures in both lower extremities, as well as the left toe amputation. The right second toe became gangrenous with osteomyelitis and therefore was also amputated later on. Further deterioration of arterial occlusive disease in the right leg led to his above-the-knee amputation in 2009. The February 2013 VA examiner noted that the arterial occlusive disease is involved in the artery system, an entirely different condition from the venous system as seen in the varicose veins. The varicose veins do not cause or lead to gangrene or major ischemic changes necessitating amputation of toes. Based upon record review, information gathered from the Veteran, and the physical examination, the examiner opined that the toe amputations are not caused by the varicose veins, but rather result from the complications with the arterial occlusive disease. While the Veteran alleges that his current amputations are due to his varicose veins, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event or disability and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, although the Veteran is certainly competent to testify as to symptoms, the question as to the etiology of his amputations is a matter requiring medical expertise to determine. Indeed, amputations may be required for a number of reasons, and such question is one typically determined by persons with medical training. Thus, on this point, the Board finds the medical evidence of record to be more probative than the Veteran's lay assertion as to the cause of his amputations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, no medical evidence of record relates the Veteran's toe amputations to his varicose veins. Multiple medical opinions of record note no connection between the veins and the amputations. In any event, the Board finds the opinion of the February 2013 examiner most probative. That examiner reviewed the Veteran's claims file and determined that the Veteran's amputations are less likely than not proximately due to or the result of the Veteran's varicose veins. He specifically noted the development of arterial occlusions led to the Veteran's amputations. He specifically noted that varicose veins do not cause or lead to gangrene or major ischemic changes necessitating amputation of toes. He also noted the Veteran's other risk factors, and the findings associating the Veteran's amputations to arterial occlusive disease, a disease that is completely unrelated to varicose veins. The February 2013 examiner was fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, he provided a fully articulated opinion that included a reasoned analysis. Therefore, the Board finds that the examiner's opinion is of significantly more probative value than the Veteran's lay assertions. In sum, the evidence does not show and the Veteran does not contend that his amputations are directly related to service. Moreover, the most probative evidence indicates that the Veteran's amputated toes are not related to or permanently worsened by his varicose veins. Accordingly, the preponderance of the evidence is against the claim, and service connection for amputation of toes is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for amputation of the fourth toe of the left foot, to include as secondary to varicose veins, is denied. Entitlement to service connection for amputation of the second toe of the right foot, to include as secondary to varicose veins, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs