Citation Nr: 1328516 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-24 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for varicose veins of the left leg, claimed as secondary to service-connected varicose veins of the right leg. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1986 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In June 2011, the Veteran testified before the undersigned at a Travel Board hearing. The transcript of the hearing is associated with the claims folder. In November 2011, the Board denied the application to reopen the claim for service connection for varicose veins of the left leg on a direct basis. The Board also noted that during her Board hearing, the Veteran raised a claim for service connection for varicose veins of the left leg as secondary to her service-connected varicose veins of the right leg. As this was a newly raised claim, and separate and distinct from the initial claim, the Board remanded the issue and directed the Agency of Original Jurisdiction (AOJ) to develop the claim of entitlement under the secondary service connection theory. Therefore, the current appeal is limited to service connection for varicose veins of the left leg on a secondary basis. A review of the Virtual VA paperless claims processing system also reveals that the Veteran underwent a VA examination for her artery and vein conditions in July 2013. The Board notes that such evidence pertains to the evaluation of the current nature and severity of her varicose veins disability as opposed to the specific etiology of the varicose veins in her left leg (under the secondary service connection theory), which is the crux of the case. Indeed, there is no dispute that the Veteran has a current left leg varicose veins disability. Thus, the additional evidence not previously considered is cumulative and not relevant to the adjudication of the issue, which turns on the question of whether the Veteran's left leg varicose veins disability is proximately due to or the result of the Veteran's service-connected right leg varicose veins disability. Accordingly, the Board will proceed with a decision on the appeal. FINDING OF FACT The Veteran does not have a left leg varicose veins disability that is caused or aggravated by the service- connected right leg varicose veins disability or any other service-connected disease or injury. CONCLUSION OF LAW Left leg varicose veins disability is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131 , 5103, 5103A, 5107; 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty 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, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a March 2012 post-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for left leg varicose veins disability secondary to the service connected right leg varicose vein disability. The March 2012 letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated her status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of her claim, in the March 2012 letter. Contrary to VCAA requirements, the VCAA-compliant notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in a June 2012 Supplemental Statement of the Case. Id. at 1323. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. Pursuant to the Board's November 2011 remand, the Veteran was afforded a March 2013 VA examination. For the reasons stated below, this examination was adequate and substantially complied with the Board's remand instructions for further development of this issue. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the concept of service connection (including secondary service connection), identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The VLJ also left the record open for a 30-day period following the hearing to allow for the submission of such additional evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Secondary Service Connection Law & Analysis A disability can be service connected on a secondary basis if it is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b) , effective October 10, 2006. See 71 Fed. Reg. 52,744 -52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Specifically,paragraph (b) of 38 C.F.R. § 3.310 states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service- connected disease or injury; and (3) evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Id. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). At the June 2011 Board hearing, the Veteran raised a claim for service connection for varicose veins of the left leg as secondary to her service-connected varicose veins of the right leg. She specifically contends that her right leg disability caused her to shift her body weight to her left leg, causing her left leg to develop varicose veins. She is currently service-connected for varicose veins of the right lower extremity with a 40 percent disability evaluation effective April 22, 2008. The lay and medical evidence undoubtedly confirm that the Veteran has a current left leg varicose veins disability. In this regard, a May 1995 VA examination report reveals a diagnosis of very small superficial varicosities in both lower extremities. A September 2006 VA examination report indicates that the Veteran reported pain that was progressively worsening in both legs (and feet) at night. Findings revealed visible and palpable varicose veins at the popliteal aspect of the right lower extremity, and small palpable, tender to palpitate varicose veins at the popliteal aspect of the lower left extremity. A June 2008 and June 2010 VA examination mostly pertain to the Veteran's right leg condition, but also contain some findings with regard to the left leg. VA outpatient records record the Veteran's complaints of leg pain in both lower extremities and contain diagnoses of varicose veins of both lower extremities, although it is documented that the right leg disability was worse than the left leg disability. The Veteran also reported that she has to wear special compression hose for both of her legs. Finally, the Veteran testified in June 2011 that over the years, her right leg problems have caused her to place more pressure on her left leg and her left leg was actually worse than her right leg at this juncture. As there is evidence of a current disability(left leg varicose veins) and a service-connected disease (right leg varicose veins), the crux of the matter is whether or not there is evidence establishing a nexus (causation or aggravation) between the current left leg disability and the service-connected right leg disability. 38 C.F.R. § 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448. The evidence of record with respect to the critical nexus element consists of a March 2012 VA examination (conducted specifically in connection with her secondary service connection claim) and the Veteran's lay statements. Upon VA examination in March 2012, the VA examiner considered the Veteran's reports of symptomatology and medical history. Bilateral venous reflux test showed no venous reflux at the femoral saphenous junction on either side, or of the short saphenous vein with the popliteal vein junction on either side. After reviewing the claims folder and examining the Veteran, the examiner was of the opinion that it is less likely than not that the claimed condition (left leg varicose veins) is proximately due to or the result of the Veteran's service-connected condition (right leg varicose veins). Her rationale was that the Veteran has a history of other health conditions, namely diabetes mellitus, lumbar arthritis with disc bulge, central disc protrusion, spinal canal stenosis and neural foraminal stenosis (all non-service connected disabilities) which are likely the cause of the burning, numbness, and tingling sensations that the Veteran reported along with abnormal; gait, which required the use of a cane. The examiner reported that the Veteran has risk factors for varicose veins, such as pregnancy of her last child, obesity with body mass index over 40, being female, and her age of 44. She went on to cite medical literature which supports the theory that the two primary causes of varicose veins are age and pregnancy, along with genetic predisposition, obesity, and prolonged standing or sitting. Finally, the examiner noted that literature review yields no statistical relationship between abnormal weight bearing to increase risks of developing varicose veins. Citations for the cited medical literature were provided. The Board notes that a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). Thus, the Board recognizes that the Veteran is competent to report that she places more weight on the non-service connected side. However, considering the complete lay and medical evidence of record, the Board places more weight on the unfavorable VA opinion dated in March 2012 than the Veteran's lay statements as the VA opinion is supported by a rationale, detailed and consistent with other evidence of record. The only evidence proffered by the Veteran with respect to her secondary service connection claim are her own statements. The VA opinion was based on medical principles and applied to the facts of the case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). The March 2013 VA examiner concluded that the Veteran's left leg varicose veins disability is unrelated to her service-connected disability. The Court has held that service connection can be granted for disability that is aggravated by a service-connected disease or injury and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439 (1995). By determining that certain enumerated risk factors likely caused the varicose veins in the left leg, as opposed to other reasons, the March 2012 examiner concluded that no service-connected disability caused the varicose veins of the left leg. In addition, the examiner noted that there was no statistical relationship between the appellant's theory of entitlement and varicose veins. This statement is broad and addresses causation and aggravation. Moreover, the Veteran is currently service connection for anemia, eye infections, scar, primary insomnia, and varicose veins in the right lower extremity. None of these were included as risk factors or likely contributors to the left leg varicose veins disability. In fact, the VA examiner essentially explained that there was no medical basis to prove a relationship between abnormal weight bearing to increased risk of varicose veins. The VA examiner considered the nature of the Veteran's left leg disability, history and relevant longitudinal complaints in proffering her opinion. In sum, the Board finds that the most probative evidence establishes that there is no relationship (causation or aggravation) between the Veteran's left knee varicose veins disability and her service-connected right leg varicose veins disability. Therefore, the preponderance of the evidence is against the claim for secondary service connection. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. ORDER Service connection for varicose veins of the left leg, claimed as secondary to service-connected varicose veins of the right leg is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs