Citation Nr: 1332328 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 13-10 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for varicose veins of the bilateral lower extremities. 2. Entitlement to service connection for hypothyroidism, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from March 1954 to May 1956 and from July 1968 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 Regional Office (RO) in New Orleans, Louisiana rating decision, which denied the claims on appeal. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge in August 2013. A transcript of that proceeding has been associated with the Veteran's Virtual VA electronic claims file. The record reflects that after the statement of the case (SOC) the Veteran submitted additional relevant evidence to the Board. No subsequent supplemental statement of the case (SSOC) was issued, but this is not necessary because during the Veteran's August 2013 videoconference hearing his representative explicitly indicated that the Veteran wished to waive initial review by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2013). Moreover, as the Veteran's varicose vein claim is granted and the hypothyroidism claim is remanded herein, any procedural error in the review of submitted evidence has not resulted in any prejudice to the Veteran. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for hypothyroidism is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is clear and unmistakable evidence demonstrating that the Veteran's bilateral lower extremity varicose veins existed prior to his entry into his second period of active military service; however, the evidence does not clearly and unmistakably show that the Veteran's pre-existing bilateral lower extremity varicose vein disability was not aggravated by military service. CONCLUSION OF LAW Bilateral lower extremity varicose veins were aggravated during the Veteran's military service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to the varicose issue claim, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran alleges his preexisting bilateral lower extremity varicose vein disability was permanently aggravated by his second period of active military service. There are no complaints, treatment, or diagnoses of lower extremity varicose veins during the Veteran's first period of active service. Indeed, the Veteran does not contend that his initial problems began during that period. In a December 1965 Report of Medical History at the time of potential reenlistment, the Veteran reported undergoing surgery for bilateral lower extremity varicose veins in 1958. The Veteran claimed that there were no complications from the procedure and that he had experienced no pain or swelling in the legs since the operation. A February 1968 Report of Medical History included a denial of a history of cramps in the legs and no complaints of other leg problems. A contemporaneous medical examination included a normal finding as to the lower extremities and skin. There was a notation of multiple identifying body marks, but nothing as to varicose veins. There is no medical examination of record at the time of entry into the Veteran's second period of active service, in July 1968. A February 1972 medical examination noted varicosities on the left leg. An April 1975 service treatment record included treatment for a varicosity on the left leg. The record indicated that the Veteran had undergone a bilateral ligation and stripping of the saphenous veins to just below the knees in 1955. For the previous month, the Veteran had noticed a varicosity below the knee in the saphenous vein system. The Veteran was diagnosed with varicose veins of the left leg and underwent ligation and stripping of the left saphenous system. In September 1975, the Veteran reported continued burning, pain, and swelling following the April 1975 surgery. An undated service treatment record included complaints involving a "nest of varicosities" on the right calf. The record indicated that the Veteran was symptomatic. A March 1986 medical examination included the finding of varicosities on both lower extremities. In October 1989, the Veteran sought treatment for left lower extremity cramping and occasional numbness for the previous year. On evaluation there was swelling and varicosities. The Veteran was referred to consider whether additional vein stripping was necessary. In March 1992, the Veteran reported that he was in good health, but discussed a history of cramps in the legs and pain secondary to varicosities. In April 1993, the Veteran reported varicosities in both legs and bleeding in the left leg from the varicosities. The Veteran's April 1993 retirement examination included findings of a venous stasis ulcer on the left ankle and large varicosities on the left lower extremity. In August 1993, the Veteran complained of nighttime cramps in the calves and intermittent swelling ankles. The treatment provider assessed varicose veins of the left calf and venous stasis changes in the left medial supramalleolar region. In September 1993, the Veteran was seen for pain in the calves secondary to varicose veins. In September 1994, the Veteran was treated for large varicose veins on the left calf. Surgery was recommended. The Veteran was afforded a VA examination in December 2010. At that time, the Veteran reported the onset of problems with varicose veins in 1954 during his first period of service. The Veteran reported that he had undergone vein stripping twice and currently experienced cramps, persistent swelling, and varicose veins popping out in both legs. He contended that his symptoms were "worse now than before." The Veteran denied any medication for the problem. The Veteran reported edema, discoloration, pain, aching, and fatigue. On examination, there was boardlike edema bilaterally and stasis pigmentation on the right, but no ulceration in either leg. The problems were described as visible and minimal varicosities in the right lower extremity and visible, tortuous, massive palpable varicosities in the left lower extremity. The examiner noted that these problems would have significant effects on the Veteran's employment as a police officer and with respect to daily activities would prevent sports and exercise; have a severe effect on shopping and recreation; have a moderate effect on chores and traveling; and have no effect on feeding, bathing, dressing, toileting, and grooming. In a February 2011 addendum opinion, the examiner stated that it was not possible give an opinion on whether the Veteran's preexisting varicose veins were permanently aggravated by military service without resorting to mere speculation. The rationale for the inability to provide a non-speculative opinion was that, "Once varicosities are present there is no way to clinically determine what changes are from the natural progression of varicose disease and what is from aggravation [from] military service." During the Veteran's August 2013 Board hearing he reported ongoing problems with his varicose veins that required the ongoing use of compression stockings. He testified that his duties included prolonged standing on the flight line while serving in Vietnam and that more and more varicose veins showed up while he was stationed in Vietnam. He further testified that he had the varicose veins in 1958 prior to going on active duty. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (2013). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). As noted above, the Veteran alleges his preexisting bilateral lower extremity varicose vein disability was permanently aggravated by his second period of active military service. Initially, the Board notes that a medical examination is not of record at the time of the Veteran's entrance into his second period of active service in July 1968. Even were the Board to accept the December 1965 or the February 1968 medical examination as the Veteran's entrance examination into his second period of service, neither examination made a diagnosis or finding of varicose veins in either extremity. As such, the Veteran will be presumed to have entered service in sound condition as to his second period of active service with respect to bilateral lower extremity varicose veins. 38 U.S.C.A. §§ 1111 (West 2002); see also Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As noted, however, the presumption can be rebutted by clear and unmistakable evidence. In this case, the evidence of record clearly establishes the Veteran's bilateral lower extremity varicose veins preexisted his second period of active service beginning in July 1968. As noted above, multiple medical and lay records document that the Veteran underwent bilateral vein stripping for his lower extremity varicose veins prior to his second period of active service. Thus, the Veteran clearly had varicose veins prior to his second period of active service. Other than the Veteran's representation during his December 2010 VA examination that his problems began during his first period of active service, the medical records and the Veteran's subsequent statements clearly demonstrate that the lower extremity varicose veins existed prior to the Veteran's second period of active service. In light of the foregoing, the Board finds that there is clear and unmistakable evidence of record that the Veteran's bilateral lower extremity varicose veins preexisted his second period of active service that began in July 1968. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). The Board notes that the presumption of soundness on entrance cannot be overcome simply based on the representations of the Veteran of a vague past history during the entrance examination or thereafter. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A § 1111); see also Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this case, however, as discussed above there is both probative clinical and lay evidence documenting the existence of bilateral lower extremity varicose veins prior to reentry into service in July 1968.6 As set forth in VAOPGCPREC 3-2003, the Board must also determine if there is clear and unmistakable evidence that the disorder was not aggravated during service. Based on the evidence discussed below, the Board concludes that there is not clear and unmistakable evidence that the bilateral lower extremity varicose veins were not aggravated during his second period of active service beginning in July 1968 or that any increase was due to the natural progress. As discussed above, December 1965 and February 1968 examinations made no findings of varicose veins or other lower extremity vascular problem. Of equal significance, in December 1965 the Veteran discussed his prior varicose vein surgery, but specifically denied subsequent problems of pain or swelling involving the lower extremities. The Veteran contends that he started to experience problems again with varicose veins during his service in Vietnam that began several months after his return to active duty. The Veteran's service treatment records do not show immediate complaints from 1968 for varicose vein problems, but beginning in 1972 there are notations of varicose veins. Eventually, the Veteran's varicose vein symptoms progressed to the point that he required venous stripping in the left lower extremity in April 1975. Thereafter, on multiple occasions he reported continued problems of pain, cramping, swelling, and other symptoms. These complaints continued through his separation from service and thereafter. The Board recognizes that the Veteran's left lower extremity varicose veins appear to be much more serious than his right lower extremity varicose veins. That said, the Veteran did complain of problems involving right lower extremity varicose veins during service and he was noted to have observed varicose veins of the right lower extremity on multiple times during his later period of service, whereas initially during his service there were no reports of observed right lower extremity varicose veins or problems related thereto. In addition, the Board has considered the opinions expressed in the February 2011 VA examination report addendum. Therein, the examiner stated that it was not possible to determine whether the Veteran's bilateral lower extremity varicose veins had been permanently aggravated by his second period of military service. As discussed above, in this case, the claim can only be denied for the preexisting disability if it is shown that the disability clearly and unmistakably was not aggravated by service or that any increase was due to the natural progression. It is clear from the VA addendum opinion and the other evidence of record that such a high threshold is not met. Given the Veteran's contemporaneous and current reports of worsening of bilateral lower extremity varicose vein symptomatology during service and the February 2011 VA examination report addendum that stated it would be mere speculation to offer an opinion as to whether the Veteran's bilateral lower extremity varicose veins had been permanently aggravated by his second period of active service, the Board finds that there is not clear and unmistakable evidence that the bilateral lower extremity varicose veins were not aggravated by his military service. In summary, there is a competent and probative evidence of record that indicates both that the Veteran's bilateral lower extremity varicose veins had been asymptomatic for multiple years prior to his reentry into military service in July 1968, but that once the Veteran reentered service the symptoms worsened and by several years into service required venous stripping in the left lower extremity. The only medical opinion of record was unable to provide a definitive opinion as to whether the Veteran's bilateral lower extremity varicose veins were permanently aggravated by his second period of active service. As such, the Board concludes that there is not clear and unmistakable evidence that the bilateral lower extremity varicose veins were not aggravated by his second period of military service. Moreover, the Veteran has credibly testified that he continued to have symptoms with respect to his varicose veins after service. Therefore, the Board concludes service connection is warranted. ORDER Entitlement to service connection for varicose veins of the bilateral lower extremities is granted. REMAND The Veteran also contends that his current hypothyroidism disability should be service connected on a presumptive basis, as he asserts that it was diagnosed within one year of his separation from service. After consideration of the evidence of record, the Board concludes that a remand is required for additional development. Initially, the Board notes that for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including endocrinopathies (to include hypothyroidism and hyperthyroidism), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). As such, if hypothyroidism was manifested to a compensable degree within one year of separation from service, service connection on a presumptive basis would be warranted. As noted above, the Veteran concedes that he was not diagnosed with hypothyroidism in service. Instead, he contends that he was diagnosed with hypothyroidism approximately nine months after separation from service (or approximately February 1994) by a Dr. Nguyen. A contemporaneous medical record of a diagnosis of hypothyroidism in 1993 or 1994 is not of record. Significantly, while records from Dr. Nguyen were obtained in December 2009, VA's request for records only asked for documents from 1998 to the present because the Veteran indicated at that time that he began treating with Dr. Nguyen in 1998. Based on the Veteran's current representations, it appears that he may have been treated by Dr. Nguyen prior to 1998. Thus, a remand is required in an effort to obtain additional medical records from Dr. Nguyen, specifically to include (1) contemporaneous treatment records documenting a diagnosis of hypothyroidism in 1993 or 1994 and/or (2) a current statement from Dr. Nguyen detailing the date of onset and/or diagnosis of the Veteran's hypothyroidism. The Veteran may also provide pharmacy prescription records dated in 1993 or 1994 identifying the medication he was prescribed during that time period. During the June 2010 VA examination, the Veteran reported that he was hospitalized due to shortness of breath shortly after returning from Operation Desert Storm and was found to have hypothyroidism during that stay. Those records have not yet been obtained. In addition, if the Veteran's claim cannot be granted based on the evidence or response received, the Veteran should be afforded a VA examination to determine whether his current hypothyroidism was caused by or otherwise related to military service or caused or aggravated by the Veteran's service-connected diabetes mellitus, type II. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain authorization from the Veteran to allow VA to obtain records from Dr. Hong Nguyen for medical records from 1993 to 1998. The Veteran should also be advised that he can submit any such records directly to VA as well as a statement from Dr. Nguyen demonstrating what month and year the Veteran was diagnosed with hypothyroidism and the severity of the manifestations at the time, including whether there was associated fatigue and/or whether medication was required. The Veteran should further be advised that he can submit or authorize the release of any pharmacy records dated in 1993 or 1994 indicating the medication he was prescribed at that time as well as the records pertaining to a hospitalization in approximately 1994. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. If, after completion of the above, the Veteran's claim cannot be granted, schedule the Veteran for appropriate VA examination for his claimed hypothyroidism. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not that hypothyroidism: (1) was incurred in or is otherwise related to military service and (2) was caused or aggravated (i.e., worsened) beyond the natural progress by his service-connected diabetes mellitus. In that regard, in addition to the above, the examiner's attention is directed to the Veteran's contentions that he was diagnosed with hypothyroidism less than one year after his separation from service. In addition, as to the asserted relationship between the Veteran's service-connected diabetes mellitus and hypothyroidism, the examiner's attention is directed to the article contained in the claims file from the Journal of Diabetes Research titled, The Relationship between Type 2 Diabetes Mellitus and Related Thyroid Diseases. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs