Citation Nr: 1320360 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-10 924 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for varicose veins of the left leg. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for a cardiovascular disorder, claimed as heart palpitations. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from November 1971 to May 1976, from May 1979 to July 1990, and from May 1994 to September 2000. By rating action in January 1992, the RO, in part, denied service connection for varicose veins of the left leg. The Veteran and his representative were notified of this decision and did not appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision by the RO which, in part, denied the benefits sought on appeal. A Board hearing before the undersigned was held in July 2012. A copy of the transcript is of record. The issues of entitlement to service connection for diabetes mellitus and a cardiovascular disorder manifested by heart palpitations are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for varicose veins of the left leg was last finally denied by an unappealed rating decision by the RO in January 1992. 2. The additional evidence received since the January 1992 rating decision concerning varicose veins of the left leg relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's varicose veins of the left leg is at least as likely as not related to service. 4. After resolving all doubt in the Veteran's favor, tinnitus is related to service. CONCLUSIONS OF LAW 1. The January 1992 RO decision that denied service connection for varicose veins of the left leg is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of service connection for varicose veins of the left leg. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159, 3.303, 20.1105 (2012). 3. The Veteran's varicose veins of the left leg was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Given that this decision grants service connection for tinnitus, reopens the claim for varicose veins of the left leg and grants that issue. Thus an exhaustive analysis of VA's compliance with these statutes is not in necessary at this time, as the Veteran is not prejudiced in any regard. Finality Service connection may be granted for 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. However, before reaching the merits of the Veteran's claim for varicose veins of the left leg, the Board must first rule on the matter of reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001). As noted above, service connection for varicose veins of the left leg was finally denied by the RO in January 1992, and there was no appeal of that rating decision. Therefore, the laws and regulations governing finality and reopening of a previously disallowed claim are pertinent in the consideration of the current issue on appeal. A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). Under pertinent law and VA regulations, the Board may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Veteran's request to reopen his claim for varicose veins of the left leg was received in December 2005, and the regulation applicable to his appeal defines new and material evidence as evidence not previously submitted to agency decisionmakers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2012). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to grant the claim. However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this regard, the Board notes that no additional evidence was received from the Veteran during the one year period following the January 1992 rating decision. The evidence of record at the time of the January 1992 rating decision included the Veteran's STRs, an undated letter from a private physician, and four VA examination reports conducted in July 1976, two in November, and December 1990. The STRs show that the Veteran had varicose veins in the left leg on a couple of occasions in service, including at the time of his retirement examination in June 2000. The undated private medical statement pertained to an unrelated medical problem involving the Veteran's allergies. Three of the four VA examinations, July 1976, November 1990 and the December 1990 audiological examination, did not include any pertinent information or findings related to the Veteran's legs or varicose veins. The remaining VA examination, also conducted in November 1990 showed that the Veteran had a two year history of varicose veins in the left leg. On examination, there were large varicose veins measuring 7 by 10 cm in diameter and 8 inches in length over the anterior aspect of the tibia with two incompetent perforators. There was no evidence of stasis dermatitis or skin changes and no ulcerations. The diagnoses included varicose veins of the left anterior leg with minimal to moderate symptomatology. The evidence added to the record since the January 1992 rating decision, includes numerous VA and private medical records showing treatment for various maladies from 2002 to June 2012, reports of VA examinations conducted in April and November 2006, and January 2013, and a transcript of the Travel Board hearing held in July 2012. A private outpatient note, dated in July 2004, showed varicosities with "vascular lake" on the left anterior ankle. Similarly, a VA outpatient note, dated in June 2012, showed varicose veins in the left leg. The private and VA outpatient notes, which were not previously of record, shows that the Veteran has varicose veins in the left leg. This evidence is new, in that it was not previously considered by the RO, and is material since it relates to an unestablished fact necessary to substantiate the claim or raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As the Board finds that the additional VA and private medical records are new and material, there is no need to discuss whether the other evidence is likewise new and material, as the claim will be reopened solely on the basis of this evidence. Having determined that the Veteran's claim for varicose veins is reopened, the Board must next determine if it will be prejudicial to him if the Board addresses the merits of the claims. See Bernard v. Brown, 4 Vet. App. 384 (1993). Upon review of the claims file, the Board finds that the current evidence of record is sufficient to render a favorable decision on the merits, and that the Veteran will not be prejudiced by the Board proceeding with the adjudication of this issue. Id. Service Connection: In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999). An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In this case, varicose veins and tinnitus are not listed as a specified chronic disease under the provisions of 38 C.F.R. §§ 3.307, 3.309. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1113(b); 38 C.F.R. § 3.303(d). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Varicose Veins The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the STRs, which included copies of private medical reports, showed that the Veteran had varicose veins in his left leg in April and December 1996, and on a service examination in June 2000. Likewise, private and VA treatment records in July 2004 and June 2012, respectively, showed that he currently has varicosities in the left leg and ankle. At the Travel Board hearing in July 2012, the Veteran testified that his varicose veins were first noted in 1985, that he was given elastic stockings in 1996, and that he was treated for his varicosities on several occasions during his last period of service. The Veteran's testimony regarding his history of varicosities was consistent with the STRs, and the Board has found no reason to question the credibility of his description of his symptoms since service. The Veteran is competent to provide information concerning lay-observable events or the presence of disability or symptoms of disability subject to lay observation, such as, varicose veins in his left leg. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d at 1336 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for varicose veins of the left leg is warranted. Tinnitus The Veteran contends that he has had chronic buzzing in his ears since service and believes that service connection should be established for tinnitus. At the hearing in 2012, the Veteran testified that while he reported his tinnitus to medical personnel in service, he was told that there was nothing that could be done to ameliorate his symptoms, and that he never bothered to mention the problem again, but that he has continued to experience tinnitus since service. The service records showed that the Veteran's military occupational specialty (MOS) during his 22 years of active service included working as an air operations specialist assigned to a Combat Support Group while in the Air Force, and working in communications-electronics operations in the Army, which presumably would have exposed him to some level of acoustic trauma. See 38 U.S.C.A. § 1154. As such, the Board will concede that he had noise exposure in service. Further, the service treatment records (STRs) showed that the Veteran reported a history of ringing in his ears on a service examination in April 1990, and on a retirement examination in May 1999. The evidence of record also includes a letter from a private audiologist, dated in July 2006, to the effect that it was at least as likely as not that the Veteran's tinnitus was caused by exposure to acoustic trauma and noise exposure in service. The Veteran was examined by VA in November 2006 to determine, in part, the nature and etiology of his reported tinnitus. At that time, the examiner indicated that while the Veteran reported that his tinnitus began in 1987, there was only one notation of a history of "ringing in the ears" in the STRs - in 1999. Furthermore, he noted that the Veteran did not report any such problems or history of ringing on his retirement examination a year later in June 2000. Given that the Veteran had ample opportunity to report his tinnitus from 1987 to the time of his retirement examination in 2000, and only mentioned the problem once, the examiner opined that it was less likely than not that the Veteran's current tinnitus was related to service. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this regard, the Veteran is competent to provide information concerning lay-observable events or the presence of disability or symptoms of disability subject to lay observation, such as, tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d at 1336 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In this case, the evidence against the Veteran's claim relies, primarily on the lack of evidence, i.e., the absence of more than one reported complaint of tinnitus by the Veteran during service. The Board notes however that the Veteran reported a history of tinnitus on at least two occasions during service - in April 1990 and on his retirement examination in May 1999. Further, the Board finds that his explanation for not seeking additional treatment during service was reasonable. The Veteran is competent to relate his history of tinnitus for many years. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan, 451 F.3d at 1336; 38 C.F.R. § 3.159(a)(2). As there is nothing in the record to question the reliability of the Veteran's reported history of tinnitus since service, the Board finds that he is credible in reporting a continuity of symptoms since service. Resolving any doubt on this issue in the Veteran's favor, it is concluded that tinnitus is related to service and service connection is warranted. ORDER Service connection for tinnitus is granted. Service connection for varicose veins of the left leg is granted. REMAND Concerning the claims of service connection for diabetes mellitus and a cardiovascular disorder, manifested by heart palpitations, the Board finds that additional development is necessary. At the hearing, the Veteran testified that he was diagnosed with borderline diabetes mellitus in service in 1999, and that he was diagnosed with diabetes mellitus by a private doctor within one year of discharge from service. Although a review of the STRs show that the Veteran had elevated triglycerides on several occasion in service, and had a single elevated "stat glucose" level on laboratory studies in July 2000, prior to his discharge from service, the STRs do not show a diagnosis of diabetes or "borderline" diabetes in service or until several years after discharge from service. The first reported history of diabetes was noted on a private medical report in September 2007. However, the report does not indicate when the Veteran's diabetes was actually diagnosed. As the Board is not competent to offer a medical opinion concerning the onset and etiology of the Veteran's diabetes mellitus, further development must be undertaken. Concerning the remaining issue on appeal, it should be noted that service connection can not be established for symptoms or clinical findings. In this regard, the Board notes that while the STRs showed treatment for complaints of heart palpitations on numerous occasions, no specific underlying disease or disability was ever identified or diagnosed during service. The impression on a treatment note in October 1999 was "syncope, consistent with hypersensitive carotin sinus reflex." More recently, a June 2012 VA outpatient note indicated that the Veteran had a thoracic aortic aneurysm and was referred to the vascular clinic for additional work-up. Given the Veteran's complaints and clinical findings in service, and the fact that he has never been examined by VA concerning this matter, the Board finds that a VA examination should be undertaken to determine whether the Veteran has a cardiovascular disorder at present, and if so, whether it is related to service. Part of VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA) is to provide the Veteran with an examination if, as in this case, there is competent evidence of a current disability, and the evidence indicates that the current disability may be related to an event in service. 38 C.F.R. § 3.159(c)(4) (2012). Here, the Veteran is competent to report the symptoms he had in service related to his heart, and is competent to report that a medical professional diagnosed with diabetes mellitus within a year of discharge from service. Therefore, the medical question that needs to be addressed is whether the Veteran currently has a disability associated with the symptoms he experienced in service. This requires a VA examination, to include a medical opinion. As such, appropriate steps should be taken to address this. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to provide the names and addresses of all medical care providers who treated him for diabetes or any cardiovascular problems since his discharge from service. Of particular interest would be information from the private doctor who diagnosed the Veteran with diabetes mellitus within a year of service separation. Thereafter, obtain treatment records from all identified sources not already of record, including any VA treatment records since February 2013, and associate them with the claims file. 2. The Veteran should be afforded a VA endocrine examination to determine the etiology of his diabetes mellitus. All indicated tests and studies are to be performed. The claims folder should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus had its onset in service or is otherwise related to service. If the examiner is only able to theorize or speculate as to the relationship, if any, between the appellant's diabetes and service, this should be so stated. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any identified cardiovascular disorder. The claims folder should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be accomplished. The examiner should render an opinion as to whether it is at least as likely as not that any identified heart disorder/disease had its onset in, or is otherwise related to service, including any documented palpitations in service? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A fully articulated medical rationale for any opinions expressed should be set forth in the examination reports. The examiners should address the particulars of this Veteran's medical history and the relevant medical science as applicable to each claim. If the examiners are unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiners should identify any evidence required in order to render a non-speculative opinion, (which the agency of original jurisdiction (AOJ) should attempt to obtain, and then return the claims file to the appropriate examiner for completion of the opinion). 4. After the requested development has been completed, readjudicate the merits of the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs