Citation Nr: 1803856 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-11 266A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for varicose veins in the left calf. 2. Entitlement to service connection for memory loss. 3. Entitlement to a disability evaluation rating greater than 10 percent for left hip degenerative arthritis before April 15, 2014, and to a rating greater than 30 percent on and after June 1, 2015. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to September 2009. This case comes before the Board of Veterans' Appeals, on appeal from November 2009 and May 10, 2011 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO), in Winston-Salem, North Carolina, and a July 2014 rating decision of the VA RO in St. Petersburg, Florida. Jurisdiction currently lies with the St. Petersburg, Florida RO. The November 2009 rating decision denied service connection for varicose veins. The May 2011 rating decision denied service connection for memory loss. The July 2014 rating decision assigned a temporary 100 percent disability rating for the Veteran's left hip disability from April 14, 2014, and a 30 percent rating from June 1, 2015. The Board notes that in a December 2017 brief, the Veteran's representative categorized the Veteran's claim for an increased rating for his left hip disability as entitlement to an increased initial rating. In the November 2009 rating decision, the RO granted service connection for a left hip disability and assigned an initial 10 percent rating. In his November 2010 Notice of Disagreement (NOD), the Veteran only advanced disagreement with the denial of his claim for service connection for varicose veins. He did not disagree with the initial rating assigned for his left hip disability. He filed a claim for an increased rating for his left hip disability on September 10, 2013. Thus, the claim is characterized above, as entitlement to an increased rating, rather than entitlement to an increased initial rating. The issues of entitlement to service connection for memory loss and a left hip disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence reflects that the Veteran does not have varicose veins in the left calf or residuals thereof during the appeal period. CONCLUSION OF LAW The criteria for service connection for varicose veins of the left calf or residuals thereof are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131 (2012); 38 C.F.R. § 3.303 (2017). 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 for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309 (a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). The Veteran contends that he has varicose veins in the left calf that are a result of service. He filed his claim on May 8, 2009, shortly prior to his discharge from service. The Veteran's service treatment records (STRs) dated in June 2007 show complaint of swelling and pain of the left calf. An examination of the left calf revealed multiple varicosities on the anterolateral surface "and what appear[ed] to be an aneurysm of the vein on lateral aspect." The Veteran was diagnosed with left calf venous varicosities and possible aneurysm of the superficial veins of the left calf. The Veteran was given Motrin, compression stockings and was scheduled for a consultation. The VA pre-discharge examination report notes no pain, edema, dark discoloration, eczema, or ulcerations of the left calf. There was no evidence of scaring of the left lower extremity upon examination nor was there evidence of varicose veins on examination of either leg. Private treatment records dated in November 2007 indicate that the Veteran was diagnosed with pre and postoperative symptomatic varix with perforator incompetency and reflux of the left lateral calf. The record also shows that the Veteran underwent a cooltouch endovenous ablation of the varix and perforator, left calf. The Veteran underwent a VA pre-discharge examination in December 2007. The Veteran reported that he had leg pain occurring after prolonged standing and walking. He also reported that he had leg edema occurring constantly which could not be relieved by foot elevation or compression hosiery. Further, he reported that the condition started four years ago. Upon examination, the examiner noted that the Veteran's extremities were normal, with a 1.5 x 1.5 x 1cm vascular nodule to the left lateral calf that was covered with paper tape, status post injection one month ago. Edema was absent in the left lower extremity as was dark pigmentation of the skin, eczema, and ulceration. There were varicose veins present on the left. The examiner diagnosed the Veteran with varicose veins. The Veteran underwent another VA pre-discharge examination in July 2009. The Veteran reported being diagnosed with left calf varicose veins that existed for three years. The examiner noted that the Veteran had no leg symptoms of pain, edema, and dark pigmentation of the skin, eczema, ulceration, clubbing or cyanosis. The examiner concluded that the examination did not reveal varicose veins of the left calf. The Board finds the July 2009 VA examination most probative against a finding that the Veteran has a current disability of varicose veins of the left calf or residuals, thereof. Since the probative evidence of record, currently fails to show varicose veins of the left calf or residuals thereof during the appeal period, the Board finds that the criteria for service connection for varicose veins of the left calf have not been met. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. § 3.303 (2017). A current disability is generally shown by evidence after the claim is submitted or shortly before. Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). Here, in this case, the evidence does not currently show varicose veins of the left calf or residuals of such. Although the Veteran's STRs show a diagnosis of possible aneurysm of the superficial veins of the left calf, private treatment records showed a preoperative and postoperative diagnosis of symptomatic varix with perforator incompetency and reflux in the left lateral calf in November 2007. The December 2007 examiner noted varicose veins but also noted that Veteran's extremities were normal, with a 1.5 x 1.5 x 1cm vascular nodule to the left lateral calf that was covered with paper tape, status post injection one month ago. Nonetheless, the July 2009 VA examination found no current varicose veins of the left calf. The Board finds that the Veteran's in-service varicose veins resolved without residuals prior to when he filed his claim for service connection. The Board has considered the Veteran's lay statements. He is competent to describe observable symptoms. Because there is no universal rule as to competence on this issue, the Board must determine on a case by case basis whether a particular condition is the type of condition that is within the competence of a layperson to provide an opinion as to etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Laypersons are competent to provide opinions on some medical issues. Here, the Veteran's lay assertions that he has residuals of varicose veins are less probative than the medical evidence. The record does not show that he has the skills, training, or experience needed to determine that the symptoms he experiences are due to residuals of varicose veins as opposed to another condition. The medical findings in this case are more probative. Since there is no current diagnosis of varicose veins of the left calf or residuals thereof, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319. Accordingly, the preponderance of the evidence of record is against the claim. Therefore, service connection for varicose veins of the left calf is denied. Gilbert, 1 Vet. App. 49 (1990). ORDER Service connection for varicose veins in the left calf or residuals thereof is denied. REMAND Although the further delay is regrettable, the Board finds that additional development is needed before the Veteran's claim on appeal can be decided. As an initial matter, the Veteran's representative in a December 2017 brief has argued that the Veteran should be afforded combat status. The record, however, does not show that efforts were made by the RO to verify the Veteran's combat status. 38 U.S.C. § 1154 (b) (2012). Therefore, on remand, the RO should make efforts to verify the Veteran's combat status. The record shows that the Veteran was a Navy diver for over 33 years, with the last ten years as a rebreather apparatus diver. Additionally, the record shows that he had periods of active service in the Southwest Asia Theater of operations during the Persian Gulf War and reported exposure to burn pit fumes while in the Persian Gulf. 38 C.F.R. § 3.317 (d)(2) (2017). VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117 (2012). The Veteran has not been afforded a VA examination to address whether his memory loss symptoms are due to his Gulf War service, a remand is warranted to provide the Veteran a Gulf War examination because the record is not sufficient for the Board to adjudicate the claim. The Veteran also asserts that he has memory loss due to underwater diving. The Veteran was afforded a VA Mental Disorders examination in April 2011 and was diagnosed with Level 1 memory loss. However, the examiner did not address whether the Veteran's 33 years as a diver with the Navy, including decompression and his exposure to various mixtures of diving gases, including oxygen, nitrogen, and helium, etc. (Trimix, Nitrox, Heliox), affected his cognitive functioning. The Board, therefore, finds the examination incomplete and a supplemental opinion is needed. VA's duty to assist includes providing a new medical examination when the evidence accompanying the claim is not adequate for evaluation of the current condition. 38 C.F.R. § 3.326 (a) (2017). Examinations will be requested whenever VA determines, as in this case, that there is a need to determine the current severity of a disability. The Veteran's last VA examination for left hip disability was in April 2014, one week after his April 15, 2014, left hip total replacement arthroplasty. The April 2014 examiner in her remarks commented that "the examination was deferred because the Veteran was still undergoing physical therapy and was not yet released from the care of his orthopedic surgeon." She recommended that the Veteran is re-evaluated in nine months or sooner if cleared by his orthopedic surgeon. The Veteran was not subsequently re-examined. Therefore, a remand for a new examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to verify whether the Veteran was engaged in combat during his 33 years of Naval service. 2. Schedule the Veteran for an examination by an examiner with the appropriate expertise to determine the nature and etiology of memory loss symptoms. After examining the Veteran and reviewing the Veteran's claims file, the examiner should: The examiner must provide opinions as to the following: a. Determine whether the Veteran's memory loss is attributable to a known clinical diagnosis. If the Veteran experiences symptoms that are attributable to a known clinical diagnosis, provide that diagnosis and address whether it is at least as likely as not (50 percent probability or greater) that such diagnosis is related to or had its onset in service, to include as due to his service as a diver, to include exposure to various mixtures of diving gases, including oxygen, nitrogen, and helium (Trimix, Nitrox, Heliox) and/or the effects of decompression. b. If the Veteran experiences symptoms that are not attributable to a known clinical diagnosis, determine whether it is at least as likely as not (50 percent probability or greater) that such symptoms represent an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to his Persian Gulf service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for appropriate a VA examination to determine the current severity of his service-connected left hip disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the left hip. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs