Citation Nr: 1804622 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-03 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for varicose veins, left leg, to include as secondary to hypertension. 2. Entitlement to service connection for varicose veins, right leg, to include as secondary to hypertension. 3. Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran and an acquaintance ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1973 to April 1981 and from August 1981 to August 1994. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an August 2012 rating decision issued by the Regional Office (RO) in Montgomery, Alabama. In January 2014, the Veteran testified at a videoconference hearing before one Veterans Law Judge (VLJ), and in July 2017 he testified again at another videoconference hearing before another VLJ. A transcript of each hearing is of record, and both VLJs are involved in the signing of this case. In December 2017, the Veteran waived his right to appear for a hearing before a third VLJ. In April 2015 and February 2016, the Board remanded the appeal for further development. The case has since been returned to the Board for further appellate consideration. The Board notes that the issues of entitlement to service connection for varicose veins of the left and right legs were considered as one issue at times during the course of this appeal; in light of the evidence of record, however, the Board finds that each issue merits separate treatment in this decision. Thus, the Board has recharacterized those issues separately, as set forth above. The issue of entitlement to service connection for a left testicle varicocele has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See VA Memo dated September 18, 2015. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for varicose veins, right leg, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran's varicose veins of the left lower extremity were incurred as a result of his active duty service. CONCLUSION OF LAW Service connection for varicose veins of the left lower extremity is warranted. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. To the extent that this decision represents a final determination by the Board, it is fully favorable, and no prejudice to the Veteran will ensue. For the remaining issues, all additional needed development will be accomplished on remand. The Veteran claims entitlement to service connection for varicose veins of his left leg. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); see also 38 C.F.R. § 3.310 (secondary service connection). The Veteran's service treatment records (STRs) reflect that he was noted to have suffered a left leg injury and to have varicose veins in his left leg (more specifically, in the area of his left knee) upon his discharge from active duty service, in May 1994. His post-service private treatment records reflect more recent notes of varicose veins of his left leg. The Veteran has submitted written statements and has testified at two Board videoconference hearings, and he has consistently stated that the varicose veins of his left leg were caused by and have been problematic since he suffered an in-service left leg/knee injury. The Veteran has been afforded multiple VA examinations for the purpose of determining the etiology of his varicose veins. In a May 2016 examination report, the examiner noted that it was at least as likely as not that the "condition" was incurred in or caused by the claimed in-service injury, event, or illness. In providing a rationale, the examiner noted the Veteran's May 1994 retirement physical and a September 2012 treatment record indicating "varicose veins post L knee MD." The claims file also includes a June 2016 examination report. This report is more problematic. Initially, the examiner noted that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner seemed to support this conclusion by noting that the Veteran had a one-time documentation of a varicose vein in 1994, with no indication of symptomatic varicosity or continuity of treatment. Contradictorily, the examiner separately provided the opinion that the varicose veins of the left leg were at least as likely as not related to service. Here, the Board assigns greater probative value to the May 2016 opinion than to the June 2016 opinion. The Board notes that the earlier opinion is supported by a rationale and contains no contradictory statements, unlike the June 2016 opinion. The Board would again point to the May 1994 finding of varicose veins and also to Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007), in which the United States Court of Appeals for Veterans Claims, in regard to varicose veins, indicated that lay evidence was to be considered competent with regard to a disease with "unique and readily identifiable features" that was "capable of lay observation." In summary, the combination of the May 1994 findings, the Veteran's own lay statements as to varicose veins in view of Barr, and the May 2016 VA examiner's opinion support a grant of service connection for varicose veins of the left lower extremity. ORDER Entitlement to service connection for varicose veins, left leg is granted. REMAND As to the right leg varicose veins, the Veteran was afforded VA examinations for the purpose of determining the etiology in May and June of 2016. With respect to varicose veins of his right leg, the May 2016 examiner stated that the "condition" claimed (lower extremity varicose veins) was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness, and then went on to say that it was less likely than not that the Veteran's left varicose vein disorder aggravated or caused the Veteran's right varicose vein, and that there is no medical evidence of right varicose veins until 2015 per medical records. While the Board considers this opinion to be fully favorable as to the left leg, it is internally inconsistent, inadequately worded, and thus too confusing for the Board to use in adjudication of the claim of entitlement to service connection for varicose veins of the Veteran's right leg. As for the June 2016 VA examination opinion, the examiner opined that the left leg varicose veins were "less likely as not related to or aggravated the varicose veins of the right leg." It is not fully clear whether the examiner was saying: (a) that the Veteran's varicose veins of his left leg are not related to or aggravated by the varicose veins of the right leg; or (b) that those in his left leg are not related to or did not aggravate those in his right leg. Moreover, neither VA examiner addressed the Veteran's contentions as to secondary service connection due to his service-connected hypertension. In light of these deficiencies, a further VA examination with medical opinions is "necessary" under 38 C.F.R. § 3.159(c)(4). The TDIU claim is deferred pending the adjudication of the claim for service connection for varicose veins of the right leg, as inextricably intertwined. Moreover, the Veteran has repeatedly claimed, including in a letter received in November 2012, that he has been unable to work since he suffered a stroke in August 2011. His private medical records reflect that a physician advised him to refrain from working, at least between about August 2011 and May 2012. In light of this, the Board will also be requesting that the question of the effect of his service-connected disabilities (as listed in a September 2017 rating decision, and now also including left leg varicose veins) on employability be addressed by a VA examiner. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination of the veins and arteries to determine the etiology of his varicose veins of his right leg. The entire claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed, all findings should be reported in detail, and all opinions must be supported by a rationale. Specifically, the examiner is asked to address whether varicose veins of the Veteran's right leg are at least as likely as not (a 50 percent or greater probability) etiologically related to active service. In reaching an opinion, the examiner is specifically asked to consider that the Veteran left active service in 1994 and that he suffered a leg injury and was noted to have varicose veins of his left leg while on active duty. The examiner must also opine as to whether it is at least as likely as not that varicose veins of the Veteran's right leg were caused or aggravated (permanently worsened beyond normal progression) by: 1) the varicose veins of his left leg, or 2) hypertension. If varicose veins of the Veteran's right leg are found to have been aggravated by the varicose veins of his left leg or hypertension, the examiner should quantify the approximate degree of aggravation. Finally, the examiner is requested to opine, without regard to the Veteran's age or nonservice-connected disabilities, on the impact that his service-connected disabilities (as listed in a September 2017 rating decision, and also now including left leg varicose veins), either individually or in the aggregate, have on his ability to secure or follow a substantially gainful occupation. The examiner must also provide examples on the types of employment, if any, that the Veteran is able to hold. A complete rationale should be given for all opinions and conclusions expressed. 3. After completing the above actions, and any other indicated development, the issues of entitlement to service connection for varicose veins, right leg, and entitlement to TDIU must be readjudicated. If either claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and, after they have had an adequate opportunity to respond, the appeal must then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ________________________________ ________________________________ DEREK R. BROWN A. C. MACKENZIE Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _________________________________ Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs