Citation Nr: 1329243	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  11-04 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, 
New Jersey


THE ISSUES

1.  Entitlement to service connection for varicose veins of 
the left lower extremity.

2.  Entitlement to an increased disability rating for 
varicose veins of the right lower extremity, currently rated 
as 40 percent disabling.

3.  Entitlement to an initial disability rating in excess of 
10 percent for a mood disorder.

4.  Entitlement to a total disability rating based on 
individual unemployability (TDIU) due to the service-
connected mood disorder and varicose veins of the right 
lower extremity.


REPRESENTATION

Appellant represented by:	National Association of County 
Veterans Service Officers


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Kessel, Counsel


INTRODUCTION

The Veteran had active marine service from February 1957 to 
February 1960.

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from March 2010 and August 2012 rating 
decisions of the Department of Veterans Affairs (VA) 
Regional Office (RO) in Newark, New Jersey.

The record before the Board consists of the Veteran's paper 
claims file and an electronic file known as Virtual VA.

In August 2011, the Veteran testified at a videoconference 
hearing before the undersigned Veterans Law Judge.  

At the Board hearing, the Veteran's representative indicated 
that the Veteran may have atrial fibrillation secondary to 
his service-connected varicose veins.  As this claim is not 
in appellate status, it is referred to the RO for 
appropriate action.

The service connection issue on appeal is decided herein 
while the other issues on appeal are addressed in the REMAND 
that follows the ORDER section of this decision.


FINDING OF FACT

Varicose veins of the left lower extremity are etiologically 
related to service.


CONCLUSION OF LAW

Varicose veins of the left lower extremity were incurred in 
active service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 
38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board notes the Veteran has 
been provided all required notice in response to the claim 
for service connection for varicose veins of the left lower 
extremity.  In addition, the evidence currently of record is 
sufficient to substantiate this claim.  Therefore, no 
further development is required under 38 U.S.C.A. §§ 5103, 
5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013) 
in regard to this issue.

Generally, service connection may be established for 
disability resulting from disease or injury incurred in or 
aggravated by active service.  38 U.S.C.A. § 1131 (West 
2002); 38 C.F.R. §§ 3.303, 3.304 (2013).  Service connection 
may be granted for any disease initially diagnosed after 
service, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d).

The Veteran contends that service connection is warranted 
for varicose veins of the left lower extremity because they 
originated while he was serving on active duty.  He states 
that he was treated during service moreso for varicose veins 
of the right lower extremity, but also the left side.  The 
Veteran testified at his hearing that he has had varicose 
veins ever since service.  He maintains that the left side 
should be service connected in a similar manner as the right 
side.  

The service treatment records document treatment for and a 
diagnosis of varicose veins of the right leg.  The records 
do not expressly note the presence or absence of varicose 
veins of the left leg.  A VA examination report and private 
medical record, both dated in 1966, also only reference the 
right leg.  In September 2000, the Veteran underwent a VA 
examination that revealed varicose veins on the left side as 
well.  Significantly, the Veteran reported a history of 
varicose veins on both legs that started during service.  
The examiner did not provide any commentary to question the 
Veteran's history regarding the onset of left leg varicose 
veins.  A January 2010 VA examiner also recorded a history 
of bilateral varicose veins of the legs that started in 
service in 1959.  Similar to the previous examiner, the 
January 2010 VA examiner did not challenge the time period 
for the onset of varicose veins.  These recorded histories 
are consistent with the Veteran's statements and hearing 
testimony and weigh in favor of the claim.

The lone express medical opinion on the etiology of the 
Veteran's varicose veins of the left lower extremity was 
provided by the January 2010 VA examiner.  It was his 
opinion that the Veteran's left leg varicose veins are not 
secondary to his right leg varicose veins because varicose 
veins in one extremity do not cause varicose veins in the 
other extremity.  Although this expert opinion weighs 
against the claim as to the theory of secondary service 
connection, the opinion is not inconsistent with the 
possible onset of the left leg varicose veins during service 
as the opinion does not address direct service connection.

The United States Court of Appeals for Veterans Claims 
(Court) has held that "because varicose veins may be 
diagnosed by their unique and readily identifiable features, 
the presence of varicose veins is not a determination 
"medical in nature" and is capable of lay observation."  
Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  See also 
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) 
("Lay evidence can be competent and sufficient to establish 
a diagnosis of a condition when . . . a layperson is 
competent to identify the medical condition.").  Thus, 
although varicose veins are a medical condition, the Veteran 
is competent to attest to observing that he had varicose 
veins during service because of their readily identifiable 
features.  His statements and hearing testimony are 
consistent regarding the onset of his left leg varicose 
veins during service.  The Board finds these statements 
credible and they are accorded sufficient weight to 
establish that the Veteran had varicose veins of the left 
lower extremity during service.

In regard to whether the Veteran's current varicose veins of 
the left lower extremity are etiologically related to his 
varicose veins during service, a valid medical opinion is 
not always required to establish a nexus between a current 
disability and service.  See Davidson v. Shinseki, 581 F.3d 
1313, 1316 (Fed. Cir. 2009) (holding that lay evidence may 
not be categorically excluded from consideration in 
establishing a nexus).  The Board finds that it is within 
the realm of knowledge of the Veteran as a lay person to 
provide a probative opinion as to whether varicose veins 
that occurred during his service are the same disability as 
his current left leg varicose veins.  This is so 
particularly given the Veteran's consistent statements of 
experiencing varicose veins of the left leg during service 
and ever since service.  Moreover, as previously explained, 
two VA examiners recorded the Veteran's history as having 
left leg varicose veins that began during service and they 
did not question such a history.  Therefore, the Veteran's 
statements are not inconsistent with the medical expert 
evidence.

At the least, this evidence raises a reasonable doubt as to 
whether the Veteran's varicose veins of the left lower 
extremity are etiologically related to service.  With 
resolution of the benefit of the doubt in the Veteran's 
favor, the Board finds that the varicose veins of the left 
lower extremity are in fact related to service.  See 
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).  
Thus, the Board concludes that service connection for 
varicose veins of the left lower extremity is warranted.  


ORDER

Entitlement to service connection for varicose veins of the 
left lower extremity is granted.



REMAND

When a veteran asserts that a disability has worsened since 
his last VA examination, and the last examination is too 
remote to constitute a contemporaneous examination, a new 
examination is required.  See 38 U.S.C.A. § 5103A(d) (West 
2002); 38 C.F.R. § 3.159(c)(4) (2013).  See also Snuffer v. 
Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. 
App. 121 (1991).

The most recent VA examination of the Veteran's varicose 
veins was in January 2010.  At the August 2011 Board 
hearing, the Veteran testified that he experiences 
ulceration in conjunction with the varicose veins of the 
right lower extremity, which was not identified by the 
January 2010 examiner.  Given that the most recent VA 
examination to assess the Veteran's varicose veins was 
conducted over three years ago and that his symptoms may 
have worsened, the Board finds that the claim must be 
remanded for a new VA examination to determine the current 
degree of severity of the Veteran's varicose veins of the 
right lower extremity. 

Although the case is currently before the Board, it appears 
that development continued on another claim.  The Virtual VA 
file reflects that the RO reviewed treatment records, dated 
from February 2010 to July 2012, from the VA Medical Center 
(VAMC) in East Orange, New Jersey.  On remand, these records 
should be associated with the Veteran's paper claims file or 
Virtual VA.  Additionally, as the Veteran receives regular 
treatment at the East Orange VAMC, updated treatment records 
should be obtained in light of the remand.

During the August 2011 Board hearing, the Veteran identified 
private treatment providers who may possess evidence 
relevant to his right leg varicose veins claim.  They are 
Drs. Clancy and Shah, as well as Community Hospital.  On 
remand, after obtaining appropriate authorization from the 
Veteran, records should be requested from these providers 

As to the issue of entitlement to a TDIU, the Veteran's 
representative stated at the August 2011 Board hearing that 
the Board might also want to consider a TDIU because of an 
impediment to occupation from the Veteran's right leg 
varicose veins.  This statement reasonably raises the issue 
of entitlement to a TDIU based on a disability at issue in 
this appeal.  The Board notes that a claim for a TDIU has 
not been adjudicated by the RO.  According to the VA General 
Counsel, the question of TDIU entitlement may be considered 
as a component of an appealed increased rating claim if the 
TDIU claim is based solely upon the disability or 
disabilities which are the subject of the increased rating 
claim.  See VAOGCPREC 6-96.  VA General Counsel opinions are 
binding on the Board.  Accordingly, the TDIU issue is 
properly before the Board but further development is 
warranted before the issue is decided by the Board.

Lastly, in regard to the issue of entitlement to an initial 
disability rating in excess of 10 percent for mood disorder, 
the Veteran's Virtual VA file contains an August 2012 rating 
decision wherein the Veteran was awarded service connection 
for mood disorder and a 10 percent rating was initially 
assigned.  Although a notice of disagreement (NOD) is not 
included in the Virtual VA file, a March 2013 letter from 
the RO indicates that the Veteran filed an NOD with the 
assigned rating in the August 2010 decision.  A statement of 
the case (SOC) is required when a claimant files an NOD with 
a determination.  38 C.F.R. § 19.26 (2013).  To date, no SOC 
has been furnished regarding the issue of entitlement to an 
initial disability rating in excess of 10 percent for mood 
disorder, or at least no SOC has been associated with the 
Veteran's paper claims file before the Board or the Virtual 
VA file.  Because the NOD placed the issue in appellate 
status, the matter must be remanded for the originating 
agency to issue an SOC as to the issue of entitlement to an 
initial disability rating in excess of 10 percent for mood 
disorder.  See Manlincon v. West, 12 Vet. App. 238, 240-41 
(1999). 

Accordingly, this case is REMANDED to the RO or the Appeals 
Management Center in Washington, D.C., for the following 
actions:

1.  The RO or the AMC should issue a 
statement of the case to the Veteran and 
his representative on the issue of 
entitlement to an initial disability 
rating in excess of 10 percent for mood 
disorder.  The Veteran should be 
informed of the requirements to perfect 
an appeal with respect to the new issue.  
If the Veteran perfects an appeal with 
respect to this issue, the RO or the AMC 
should ensure that all indicated 
development is completed before the 
appeal is forwarded to the Board. 

2.  The RO or the AMC should send a new 
notice letter to the Veteran and his 
representative.  The letter should 
notify the Veteran of the information 
and evidence necessary to substantiate 
the claim for a TDIU based on the 
service-connected varicose veins of the 
right lower extremity and mood disorder, 
and the respective responsibilities of 
the Veteran and VA in obtaining 
evidence.  The letter should contain 
notice of the manner in which both 
disability ratings and effective dates 
are assigned for awards of disability 
benefits.  In addition, the Veteran 
should be provided and requested to 
complete and return the appropriate form 
to claim entitlement to a TDIU.  

3.  The RO or the AMC should undertake 
appropriate development to obtain 
outstanding records pertinent to the 
Veteran's claims, to include the 
Veteran's more recent treatment records 
(since February 2010) from the East 
Orange VAMC and treatment records from 
Drs. Clancy and Shah, and from Community 
Hospital.

4.  Then, the RO or the AMC should 
arrange for the Veteran to be scheduled 
for a VA examination by an examiner or 
examiners with the sufficient expertise 
to ascertain the severity and 
manifestations of his service-connected 
varicose veins of the right lower 
extremity and the impact of the varicose 
veins of the right lower extremity and 
his mood on his employability.  The 
claims folder and any pertinent evidence 
in Virtual VA that is not contained in 
the claims folder must be made available 
to and reviewed by the examiner, and any 
indicated studies should be performed.  
The RO or the AMC should ensure that the 
examiner provides all information 
required for rating purposes.

In addition, the examiner should provide 
an opinion concerning the impact of the 
service-connected varicose veins of the 
right lower extremity and mood disorder 
on the Veteran's ability to work, to 
include whether they are sufficient by 
themselves to preclude him from securing 
or maintaining any form of substantially 
gainful employment consistent with his 
education and occupational background.

The supporting rationale for all 
opinions expressed must be provided.

5.  The RO or the AMC also should 
undertake any other development it 
determines to be warranted.

6.  Then, the RO or the AMC should 
adjudicate the claim for an increased 
disability rating for varicose veins of 
the right lower extremity and the claim 
for a TDIU based on varicose veins of 
the right lower extremity and a mood 
disorder.  If the benefits sought are 
not granted to the Veteran's 
satisfaction, furnish the Veteran and 
his representative with a supplemental 
statement of the case and afford them 
the requisite opportunity to respond 
before the record is returned to the 
Board for further appellate action.

By this remand, the Board intimates no opinion as to any 
final outcome warranted.  

No action is required of the Veteran until he is otherwise 
notified by VA, but he has the right to submit additional 
evidence and argument on the matters the Board has remanded.  
See Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This case must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or 
by the Court for additional development or other appropriate 
action must be handled in an expeditious manner.  See 
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs