Citation Nr: 1322178 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-488 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for varicose veins. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to August 1979, and from November 1991 to June 1996. She had overlapping Reserve service from September 1980 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional pertinent VA treatment records dated through November 2011, which were considered by the agency of original jurisdiction (AOJ) in the December 2011 supplemental statement of the case. FINDING OF FACT Varicose veins are not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW Varicose veins were not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a VCAA letter was sent to the Veteran in June 2009, prior to the issuance of the unfavorable January 2010 rating decision currently on appeal. The letter indicated the type of evidence and information needed to substantiate the Veteran's service connection claim and apprised her of her and VA's respective responsibilities in obtaining this supporting evidence. That letter also notified her that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess/Hartman, supra. Therefore, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records as well as post-service VA treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In November 2011, a VA examination and opinion was obtained to address the nature and etiology of the Veteran's varicose veins. 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 that the VA opinion obtained is adequate to decide the issue as the VA examiner considered all of the pertinent evidence of record, to include the Veteran's service treatment records, personal statements and history, and provided detailed rationale for the opinion stated. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). In May 2013, the Board obtained a supplemental opinion from the Veterans Health Administration (VHA) to address additional contentions raised by the Veteran's representative. The Board finds this opinion adequate as well, as it reflects a review of the Veteran's medical history and contains a clearly stated rationale. Id., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board finds that the examination report of record, with the May 2013 VHA opinion, is adequate to adjudicate the Veteran's claim for service connection such that no further examination is necessary. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and will proceed to a decision. II. Analysis The Veteran seeks service connection for varicose veins, which she and her representative have attributed to pregnancy during her first period of active duty, leg pain experienced during her second period of active duty, and prolonged standing during both periods of service, as necessitated by her military occupational specialties. Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As varicose veins are not considered to be a chronic disease subject to presumptive service connection pursuant to VA regulations, service connection for such disorder may not be established by continuity of symptomatology. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the Veteran has a current diagnosis of varicose veins, and the in-service events that she links them to-leg pain, pregnancy and prolonged standing-are not in contention as they are documented in the service records discussed below. Accordingly, the discussion below focuses on whether the Veteran's varicose veins are related to these in-service conditions, or are otherwise related to service. Service treatment records from the Veteran's first term of active duty show a clinically normal vascular system at service entrance in March 1976, at which time she also denied a history of leg cramps. During this period of service, treatment records are silent for any complaints relating to varicose veins or leg pain/cramping. Notably, in May 1979, the Veteran was confirmed pregnant. At the July 1979 service discharge examination, the Veteran's vascular system was found clinically normal, and she again denied a history of leg cramps. She served as a food specialist during her this period. At the Veteran's September 1980 Reserve enlistment examination, her vascular system was found clinically normal, but she indicated a positive history for leg cramps. In April 1994, during the Veteran's second period of active duty, she was treated for bilateral lower leg pain. She complained of aching lower legs, in addition to aching knees, ankles, and wrists, which she stated had bothered her for the past five to six months. The examiner noted the Veteran's physical activity and that she reported some relief with Advil. The Veteran was diagnosed with joint and muscle aches of the bilateral lower extremities and wrists. Another 1994 service treatment note shows that the Veteran was treated for left lower leg pain. She denied any trauma to the leg. The Veteran was advised to get an X-ray, avoid running for two weeks, and to take Motrin. Service treatment records are otherwise negative for leg pain, and do not document any treatment for varicose veins. Service treatment records also show that the Veteran was reassigned from recruiting to a records position in May 1995. Post-service, the first documentation of treatment for varicose veins was in December 2010, at which time the Veteran reported standing on feet most of the day and walking a lot for her job. Subsequent treatment records dated through November 2011 reflect complaints related to her varicose veins and the treatment for such disorder. In November 2011, the Veteran underwent a VA examination, which addressed whether her varicose veins is related to her in-service leg pain. The examiner opined that it was less likely as not that the Veteran's mild venous insufficiency/varicose veins of the lower extremities was incurred in or caused by the leg pain documented in April 1994. The examiner reasoned that the Veteran's complaints of pain in April 1994 appeared to be more musculoskeletal-related and not vascular-related. He noted that most of the major causes for varicose veins are poorly functioning valves in the veins of the lower extremities. Additionally, some major causes could be genetics related to defective venous valves, a cause could be related to pregnancy or previous vascular conditions of the lower extremities such as thrombophlebitis or injuries that may compromise the vascular system. The examiner further observed that prolonged standing over many years can contribute to lower extremity varicosities in which the Veteran had done at the post office over the last 13-14 years. In May 2013, the Board obtained a VHA opinion to address whether the Veteran's varicose veins may be due to the prolonged standing necessitated by her in-service duties as a food specialist and recruiter, as alleged by her representative. The reviewing physician noted the absence of documented clinical evidence of venous disease for either period of the Veteran's active duty service and noted that the first evidence of such was not until December 2010. The physician stated that varicose veins and venous insufficiency are multifactorial in etiology and listed several risk factors, including pregnancy. She further noted that the Veteran had multiple risk factors for venous disease that includes her older age, female sex, and history of pregnancy. Her occupational hazard is cumulative over her lifespan and cannot be pinpointed to two discrete periods of time while enlisted. The VHA physician further noted that the Veteran's duties while enlisted included periods of intense physical exercise such as running, which would go against the supposition that her period of service would predominantly induce orthostasis. The Board accords the November 2011 and May 2013 opinions great probative value as the examiners based their opinions on sound medical principles and supported their findings with detailed rationales. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); see also Sklar v. Brown, 5 Vet. App. 140, 146 (1993) (probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion); Nieves-Rodriguez, supra; Stefl, supra. As such, the Board accepts those VA examiners' opinions as being highly probative with respect to the etiology of the Veteran's varicose veins. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicator). Moreover, the clinicians' opinions reflect consideration of the Veteran's assertions of causation, namely, her in-service leg pain, prolonged standing, and pregnancy. In this regard, the November 2011 examiner specifically addressed the Veteran's in-service leg pain, and found that such was not the cause of her varicose veins, as her in-service complaints of leg pain appeared to be musculoskeletal rather than vascular. The May 2013 physician further found that the Veteran's varicose veins could not be attributed to service based on the fact that her occupational hazard was cumulative in nature and the first clinical evidence of varicose veins was not until December 2010. With respect to the Veteran's assertion that her pregnancy caused her varicose veins, the Board points out that the May 2013 clinician considered her history of pregnancy, yet did not point to pregnancy as the precipitating factor for the Veteran's varicose veins. Rather, the clinician noted the Veteran's medical history, silent for varicose veins until December 2010, and noted that varicose veins are multifactorial in etiology. Moreover, the VHA physician found that the Veteran's duties while enlisted included periods of intense physical exercise such as running, which would go against the supposition that her period of service would predominantly induce orthostasis. Furthermore, both clinicians considered the Veteran's entire medical history, and noted that nothing in her record suggests a relationship between her varicose veins and service. There is no medical evidence of record with which to contrast the negative November 2011 and May 2013 opinions. The Board has considered the Veteran's assertions that her varicose veins are related to service and notes that she is competent to identify varicose veins. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that the presence of varicose veins is not a determination "medical in nature" and is capable of lay observation for the purposes of establishing service connection). However, as a lay person, she is not competent to offer an opinion regarding the etiology of her varicose veins. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the Veteran's claim for varicose veins. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for varicose veins is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs