Citation Nr: 1753473 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-05 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left leg varicose veins. 2. Entitlement to service connection for left leg varicose veins. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army National Guard for 33 years, including active service from April 1968 to April 1969. During this period of active service the Veteran earned the Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared and testified before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is contained in the record. The issues of entitlement to service connection for deep vein thrombosis, to include as secondary to varicose veins and entitlement to service connection to diabetes have been raised by the record in February 2013 (thrombosis) and November 2010 (diabetes) statements, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a December 1975 decision, the Board denied the Veteran's claim for service connection for left lower extremity varicose veins; the Veteran did not appeal this decision. 2. The evidence received since the December 1975 Board decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left lower extremity varicose veins. 3. Resolving reasonable doubt in the Veteran's favor, his left lower extremity varicose veins were incurred during active service. CONCLUSIONS OF LAW 1. The December 1975 Board decision is final. 38 U.S.C.§§ 7104, 7105 (2012); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104 (2016). 2. New and material evidence has been received to reopen the claim of service connection for left lower extremity varicose veins. 38 U.S.C.§§ 5103, 5103A, 5107, 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 3.160. 3. Entitlement to service connection for left lower extremity varicose veins is warranted. 38 U.S.C.§§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Given the Board's favorable disposition of the claims to reopen and service connection for left leg varicose veins, the Board finds that failure to discuss VA's duties to notify and assist will result in harmless error to the Veteran. New and Material A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the additional evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (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. In December 1975, the Board denied entitlement to service connection for left lower extremity varicose veins. The Board found that there was no medical evidence that the Veteran's varicose veins began in service. The Veteran did not appeal this decision and it became final. Evidence available at the time of the 1975 Board decision included the Veteran's service treatment records, his May 1975 hearing testimony, and lay statements from his wife and a fellow serviceman. Evidence that has been added to the claims file since the 1975 Board decision includes additional testimony from the Veteran, ongoing treatment records, and a private medical statement indicating a possible link between his current left varicose veins and service. The evidence submitted since the December 1975 Board decision must be presumed to be credible for purposes of a claim to reopen. The new evidence includes additional statements from the Veteran regarding the onset of his left leg varicose veins, when he noticed them, and the possible cause of his veins being from an injury in service. The new evidence also includes a statement from a physician's assistant who indicated the Veteran's description of incurring his left leg varicose veins in service due to injury was possible. As this evidence raises the possibility of a link between the Veteran's service and his development of left leg varicose veins, the Board finds that the Veteran has submitted new and material evidence. Under these circumstances, the criteria to reopen the claim of entitlement to service connection for left leg varicose veins are met. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. The issue will be adjudicated de novo below. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303 (a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). The Veteran initially filed a claim for service connection for left leg varicose veins in March 1975. At the time, he had recently undergone a National Guard medical examination and the examiner had indicated his left leg varicose veins were severe. This prompted the Veteran to file a claim. At the time of his initial claim, the Veteran submitted two lay statements. In March 1975, the Veteran's wife wrote that the first time she noticed the lump on his upper left leg was when he was home on leave in August 1968. She sated it looked "awful," and was two inches long and two inches wide. She stated it was blue in color. She noted that they did not know what it was, but the Veteran did not have any pain from it. When he came home from Vietnam in April 1969 she noted that the raised vein had traveled to his knee. She noted that the lump did not exist before he started physician training in 1968. Additionally, in May 1975, a fellow serviceman (N.H.L.) provided a statement in support of the Veteran's claim. He noted that that in October 1968, shortly after arriving in Vietnam, a group of soldiers were talking about general health and the physical training test they had undertaken prior to deployment. The Veteran mentioned the lump on the upper part of his left leg. N.L.H. noted that the lump was about two to three inches long and was not discolored. The Veteran state that it did not bother him, but that he did not know what it was. The Veteran stated that he first noticed the lump after the PT test. In September 1975, the Veteran provided testimony regarding his initial claim for service connection. He stated that in August 1968, he completed the physical training test without having prepped for any of the training. He decided that even though he had not prepped he was "going to make it or [he] would drop." He was "badly wiped out" after the test. He stated that when he came home on leave a couple weeks later there was a bulge on the upper part of his left leg that his wife noticed. The Veteran stated that it was not painful, so he ignored it because he knew he was about to be sent to Vietnam. He stated that he did not pay attention to the bulge in Vietnam because of the stress of survival. He went through Oakland during separation, and because it was the day President Eisenhower was to be buried, all government civilian personnel had the day off. He stated he was there for 18 hours being processed out, and he was told it would go quicker if he did not have any medical claims. He stated that he was not given an actual physical on separation, and instead the doctor merely asked the soldiers to report any problems. The Veteran stated that if the bulge in his left leg had stayed the same, he would not have applied for benefits, but it enlarged after service. He stated that a year and a half after he got back from Vietnam, he joined the National Guard again, and that was when his varicose veins were noted on evaluation and he was asked if they hurt or had any symptoms. The Veteran stated that the veins did not hurt and he rejoined. In 1975, during a periodic evaluation, he was given a profile for his leg and the physician stated that the Veteran should be receiving disability for it due to the severity. The Veteran reported that, as of the time of the hearing, he had pain in his leg after a full day of work. The Veteran testified that in service, he noticed a "bulge" that looked "like it was just under the skin approximately four inches long or so...it was irregular shape. But anyway it went down the leg." He noted that the vein bulge began on the inside of his left thigh. The Veteran also said that after he was discharged in April, he went to the beach that summer and noticed that the bulge had "progressively gone on down the leg" and that as of the hearing it was now down to his ankle. The Veteran offered to take a lie detector test to prove that his statements regarding the onset of the leg veins were true. In December 1975, the Board denied the Veteran's claim. The decision noted that the Veteran's active service treatment records did not include complaints related to his left leg or clinical documentation of varicose veins of the left lower extremity. The Board noted that there were two statements in support of his claim, one from his wife and one from N.H.L., who served with the Veteran. The statements indicated that in August and October 1968 the Veteran had a 2 to 3 inch lump on his left leg and that by April 1969 the condition had traveled to his knee. The decision noted that on a periodic reserve status examination in March 1975, the Veteran had severe varicosities of the left leg and thigh. The Board found that the first medical evidence of varicosities of the left leg was from 1975, which was six years after the Veteran's separation from active service. The Board therefore found that the Veteran's veins did not develop during service. The decision did not address the lay evidence in the discussion of the denial. The Veteran filed the current claim to reopen in November 2010. On his claim, he stated his left leg varicose veins ere due to his service in Vietnam. A November 2010 VA treatment record noted the Veteran had a prior medical history of varicose veins in his left lower extremity since injury in Vietnam. He was noted to have undergone vein stripping in 1974 or 1975. The Veteran was followed by an outside vascular surgery. He stated that his veins started when he injured his leg in service. In July 2011, the Veteran's ex-wife provided a statement. She stated that she was with the Veteran from 1960 to 1982. His legs were "in perfect shape" prior to his tour of duty. When he returned he had several lumps on his left leg. Later, he began to suffer more and it was determined he had damage to the veins in his left leg. "It's a problem that since his return from Vietnam has never gone away." In February 2013, the Veteran submitted an article on thrombophlebitis and leg veins from "Healthline." The article noted that a risk factor for thrombophlebitis in the legs was leg trauma. In August 2017, the Veteran provided a medical statement from the Florida Medical clinic from August 2016. The physician's assistant noted that the Veteran was seen in 2007 with complaints of left lower extremity edema and varicosities. The Veteran reported that the varicosities dated back to 1969 shortly after an injury in Vietnam in 1968 after jumping out of a truck wearing heavy military gear. The Veteran stated he noted a small varicosity to occur shortly afterwards, which has progressed. The physician's assistant noted that the Veteran's "left lower extremity varicose veins could be a result of trauma occurring in 1968 when he was in the miliary and could be considered a service-related injury." In August 2017, the Veteran testified at another Board hearing. He reported that he first noticed his varicose veins before he left Vietnam, and he was showering one night and a sergeant asked what was on his upper left leg. The Veteran stated that his left thigh "bulged" out. The sergeant told him to "get it checked out," but the Veteran only had 10 days left in country and it wasn't painful, so he decided he would get it checked once he was back in Oakland. He stated that when he got back to Oakland it was the day of President Eisenhower's funeral and so there weren't enough civilian personnel. He was told that he could say he was in good health and go home, or say he needed to claim something medical and stand in line. The Veteran decided to just say he was in good health so he could go home to his wife and kids. He said that as the months went by, the bulge in his upper left thigh began to spread down his leg. He stated that a couple years after service it got bad enough that he needed to "do something about it." The Veteran then described what he believed caused his varicose vein in service. He indicated that they were attempting to get a truck across a drowned out bridge and needed to put layers of sandbags over the bottom of the truck. He stated he jumped off the tailgate with all his extra rounds and 40 lbs. flapjack and his helmet. And when he "hit that ground, [he swears his] eyeballs were going to pop out of [his] head, it was so hard and the adrenaline flowing and everything" because of a fear of being ambushed. The Veteran handed over the necessary spare parts and got back up on the truck, but his "foot slipped off the tire...and [his] flap jacket got caught on one of the little pigtails" and he was choking himself. He indicated that this incident caused a jarring injury to his left leg. The Veteran stated that he always wore support stockings, and that his leg swells and gets very sore. He is also supposed to sit with his leg raised for a few hours each day. He stated he has had the meniscus repaired in his left knee, and he had the hip replaced on the left side. He said he wasn't sure if his left knee and hip disorders were also a part of the injury caused by his jump in Vietnam, but that all of his difficulties are on his left side. The Veteran stated he believed his left varicose veins were due to service because only his left side is affected. He stated when his claim was initially denied that the man from VA told him varicose veins are a medical condition and not an injury and that in five years his right leg would look like his left leg. The Veteran stated it had been 40 years, and "it has never happened." The Veteran said he had his varicose veins stripped back in 1977, but that the veins reappeared again. The Veteran stated that he did not try to reopen his case in the intervening 40 years because he had been told that once he was denied by VA, that it was the end of that case. The Veteran stated that his vein specialist, Dr. W., told him that there are little valves where arteries and veins come together at the bottom of your foot so that every time you step, blood is pumped back to your heart. And Dr. W. said that when the Veteran jumped, he damaged those. Dr. W. said that he could have his veins stripped again but that he couldn't guarantee that in two years he wouldn't be dealing with another set up of vein problems. Dr. W. told the Veteran that he "ruined the valves, the valves aren't pushing the blood back through the heart." The Veteran testified that prior to service he did not have any bulging veins, discoloration, or other symptoms associated with his veins. He stated he had an arduous physical to enter the Army and nothing was noted. The Veteran also stated that he saw the raised vein in service, prior to being released. The Veteran's service treatment records do not include a finding of varicose veins prior to 1975. At that point, 6 years after service, the varicose veins were noted to be severe. The Board notes that the Veteran's statements about when he first noticed his varicose veins have changed from 1975 to 2017. In 1975, the Veteran stated he first noticed the left thigh vein was bulging after an arduous physical training test in 1968 just prior to deployment to Vietnam. The lay statements from his wife in 1975 also indicated that she first noticed the bulging vein when he was on leave after the physical training and just prior to deployment. The lay statement from the Veteran's fellow serviceman indicated that the Veteran had the bulging vein in October 1968 in service in Vietnam, and that the Veteran had reported it showed up just after physical training the month before. By 2017, the Veteran had developed the idea that his left varicose veins may have occurred as a result of an injury in Vietnam when he jumped off of a large truck while being weighted down with all of his gear. He remembers that the jump jarred his legs badly enough that when he had to get off the truck a second time he tried to climb down and nearly choked himself when his jacket was caught on a part of the truck. Although the record is inconsistent about the incident which may have caused the left leg vein to bulge, and, indeed, whether the Veteran first noticed it during boot camp prior to service in Vietnam or if he first noticed it in Vietnam, the Board finds that the statements are all consistent in relaying that the bulge was first noticed during the Veteran's period of active service from 1968 to 1969. Likely, the 1975 statements are accurate because they are closer in time to his service. The Board finds that the 1975 lay statements from the Veteran, his then-wife, and his fellow serviceman that he developed a bulging vein in his left thigh just prior to deployment, and after a physical training test, to be credible and competent. All three statements indicate that the bulge was seen and was similarly described by the Veteran's wife and his friend. The Veteran testified that he did not have the bulge prior to active duty and none was found at the time of the entrance examination. The Veteran's testimony as to having the symptomology at discharge but not wanting to report it at his separation examination due to the length of time it would take is credible. By March 1975, just less than 6 years after his discharge from active duty, his left leg varicose veins were severe. The Veteran is competent to testify that he was informed by his physician in 1977 that trauma during active duty damaged the valves in his veins. Additionally, the 2016 statement from the physician's assistant notes that the Veteran's right leg does not have the severe varicose veins present in his left leg, and that, as such, it is possible that his left leg varicose veins are a result of injury. There is no medical evidence of record which demonstrates that the Veteran's current left leg varicose veins are not linked to the in-service symptomology. Given the above, and resolving reasonable doubt in the Veteran's favor, his left leg varicose veins began during his period of active service, and service connection is warranted. ORDER New and material evidence having been received; the claim of entitlement to service connection for left leg varicose veins is reopened. Entitlement to service connection for left leg varicose veins is granted. ____________________________________________ G.A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs