Citation Nr: 18159090 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-44 981 DATE: December 18, 2018 ORDER Service connection for varicose veins, bilateral lower extremities is denied. REMANDED Service connection for a right shoulder disorder is remanded. Service connection for a right foot disorder is remanded. Service connection for a right ankle disorder is remanded. Service connection for a left ankle disorder is remanded. Service connection for a left knee disorder is remanded. Service connection for a lumbar spine disorder is remanded. Service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT The Veteran is not shown to have varicose veins. CONCLUSION OF LAW The criteria for service connection for varicose veins are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1987 to November 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The most recent adjudication of this claim was in a statement of the case (SOC) issued in August 2016, and additional treatment records from the U.S. Naval Hospital (USNH) in Yokosuka, Japan, have been added to the record since then. Although the Veteran has not expressly waived RO review of these records, the Board notes that they are not relevant or material to the outcome of the issue being decided. Therefore, the provisions of 38 C.F.R. § 20.1304 do not apply, and the issue need not be returned to the RO. Service Connection The Veteran is seeking service connection for varicose veins. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may otherwise be granted for any disease initially 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). After careful consideration of the evidence, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that he has varicose veins that had their onset during service. Unfortunately, the primary impediment to a grant of service connection is the absence of medical evidence of current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that the VA’s and the Court’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Service treatment records are negative for signs or symptoms that can be construed as related to, or diagnosis of, varicose veins. At his retirement physical in July 2005, the Veteran did not report any problems with varicose veins and clinical evaluation of all major body systems, to include the vascular system and lower extremities, was within normal limits. Although the Veteran now claims to have varicose veins, a review of the record shows he has failed to submit or identify any evidence whatsoever that he is currently being treated, or takes medication, for varicose veins. Post service clinical records beginning in 2007 do not show varicose veins included on any “problem lists” and his “active medications” did not include any commonly prescribed medications used to treat varicose veins. See clinical records from U.S. Naval Hospital (USNH) in Yokosuka, Japan. When examined by VA in November 2012, the Veteran reported a history of varicose veins since 1996. However, after reviewing his history and conducting an examination, the examiner found no objective clinical evidence to make a diagnosis of varicose veins. There was no evidence of palpable or visible varicose veins edema, stasis pigmentation, stasis dermatitis, claudication or other symptoms indicative of varicose veins and ankle/brachial index (ABI) testing was normal bilaterally. Subsequently dated treatment records from 2015 to 2017 continue to show no objective findings or confirmed diagnosis of varicose veins or any other vascular disorder involving the lower extremities. See clinical records from U.S. Naval Hospital (USNH) in Yokosuka, Japan. The Court has held that, in its opinion, varicose veins are susceptible to lay diagnosis. The Board therefore has taken the Veteran’s self-diagnosis into account. The Board finds that the probative value of the Veteran’s self-diagnosis is outweighed by the medical evidence which is entirely devoid of any evidence of varicose veins. The November 2012 examiner in particular specifically determined that the Veteran did not have varicose veins. The Board finds that the medical opinion in this matter outweighs the lay opinion, particularly as the medical opinion is supported by the absence of any varicose findings in the medical records on file. In this case, the weight of the probative evidence shows no identifiable pathology or objective physical or clinical findings to support a diagnosis of varicose veins. In the absence of proof of a current disability there is no valid claim of service-connection. See Brammer 3 Vet. App. at 223. Service connection cannot be awarded as the evidence fails to establish that the Veteran has varicose veins. REASONS FOR REMAND The Veteran is seeking service connection for a right shoulder disorder, a right foot disorder, a bilateral ankle disorder, a left knee disorder, and a lumbar spine disorder. He is also seeking service connection for GERD that he asserts is caused or made worse by the medications taken for his service-connected right knee and left foot disabilities. The Board finds that the evidence currently of record is insufficient to decide these claims and that further evidentiary development is therefore needed before a decision can be reached on the merits. With respect to his musculoskeletal claims, service treatment records show the Veteran was treated for right shoulder tendinitis, right achilles tendinitis, left ankle/foot cellulitis, and left knee patellofemoral syndrome. These records also show that he reported a history of foot trouble, knee pain, and recurrent back pain/problems at his retirement physical in July 2005. Although the examiner noted the Veteran’s reported history, clinical evaluation of all major body systems, to include the vascular system, upper extremities, lower extremities, and feet, was within normal limits. In November 2012, the Veteran was afforded VA examinations in connection with his claims. After reviewing the Veteran’s history and conducting examination, the examiner found no objective evidence to support the claimed right shoulder, right foot, left knee, or bilateral ankles, conditions. Unfortunately, he failed to reference, or even acknowledge, service records which document the Veteran’s in-service treatment history (as mentioned above). In addition, the examiner indicated the Veteran had degenerative arthritis of the lumbar spine with a date of diagnosis of 1996, but this is contradicted by the service treatment records which do not document any complaints, findings, treatment, or diagnosis of back problems until his retirement physical in 2005. The examiner also reported that the Veteran was not claiming a right shoulder condition. However, the claims file clearly indicates that he is claiming service connection for such a condition and there is no indication in the file that he has withdrawn the claim or intends to do so. Given the VA examiner’s failure to fully and accurately consider the evidence of record, additional medical opinions are needed. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board cautions that while the post-service evidence is silent with respect to confirmed diagnoses of right shoulder, right foot, right ankle, left ankle, and left knee disorders, the Veteran’s complaints of pain may constitute a disability if the pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Therefore, any examination should include consideration of whether the Veteran has pain that reaches the level of a functional impairment for which service connection may be granted. With respect to the claim for GERD, the VA examiner indicated the Veteran had GERD with a date of diagnosis of 2000, but this is contradicted by the service treatment records which are negative for complaints, findings, treatment, or diagnosis of GERD. Moreover, the Veteran has since submitted a September 2016 medical opinion from a private provider who opined that it was at least as likely as not that the Veteran’s GERD is secondary to, related to, and/or aggravated by his chronic NSAIDs usage for his service-connected right knee arthritis and left foot plantar fasciitis. In support of her opinion, she referenced several medical journal articles discussing the association between NSAID prescription use and GERD. There is no post-service medical evidence or opinion that sufficiently addresses the question of whether the Veteran has additional disability resulting from aggravation of his GERD by his service-connected disabilities. A medical opinion would also be helpful in this case. The matters are REMANDED for the following action: 1. Obtain all clinical records, both VA and non-VA, pertaining to treatment of the Veteran for that are not already in the claims file. 2. After any additional records are associated with the claims file, schedule the Veteran for appropriate VA examination to determine the onset and etiology of his claimed right shoulder disorder, right foot disorder, bilateral ankle disorder, left knee disorder, lumbar spine disorder, and GERD. The electronic claims file should be made available for review in connection with these examinations. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The examiner must utilize the appropriate Disability Benefits Questionnaires (DBQ). He/She must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. With respect to the musculoskeletal disorders: The examiner should identify all current right shoulder, right foot, bilateral ankle, left knee, and lumbar spine disorders or whether any associated complaints of pain alone have resulted in functional impairment. He/She should then provide an opinion regarding whether any diagnosed disorder or such functional impairment had its clinical onset during, or is otherwise associated with, his service. The examiner should consider the objective medical findings in the service treatment records and state whether the Veteran’s documented right shoulder tendinitis in September 1995, left ankle pain from cellulitis in February 2001, right achilles tendinitis in March 2004, history of back muscle strain reported at separation in July 2005, and patellofemoral pain syndrome in October 2005, represent the earliest manifestation of any later diagnosed musculoskeletal disorder. If any diagnosed right shoulder, right foot, bilateral ankle, left knee, and lumbar spine disorders cannot be regarded as having had their onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation. With respect to GERD: The examiner should then determine whether it is it at least as likely as not (a probability of 50 percent or greater) that the Veteran’s GERD had its onset during service. If GERD cannot be regarded as having had its onset during service, the examiner should explicitly indicate so and provide an appropriate explanation. Then in the alternative he/she should state whether it is at least as likely as not (a probability of 50 percent or greater) that GERD was caused or chronically worsened by his service-connected disabilities or the medications used to treat them. If no aggravation is found, the examiner should specifically indicate so and provide an appropriate explanation. The examiner is also asked to consider the September 2016 opinion from the private medical provider and the articles submitted in support. In providing this opinion, the examiner must consider the diagnosis of already of record. The examiner must offer an opinion even if a diagnosis has resolved (as the requirement for a current disability for VA purposes is met when the Veteran has a diagnosis such that he based his claim on the same, or had it during the pendency of the claim). If a previously rendered diagnosis is later corrected to reflect a more accurate diagnosis, the examiner should state the same. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant