Citation Nr: 1818288 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 12-27 262A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for other right lower extremity nerve involvement, claimed as secondary to postoperative right leg varicose veins disability. 2. Entitlement to service connection for right leg peripheral neuropathy, claimed as secondary to service-connected postoperative right leg varicose veins disability. 3. Entitlement to service connection for left leg peripheral neuropathy, claimed as secondary to service-connected postoperative right leg varicose veins disability. 4. Entitlement to service connection for left leg venous disease, claimed as secondary to service-connected postoperative right leg varicose veins disability. 5. Entitlement to a rating in excess of 20 percent for postoperative right leg varicose veins with numbness and anesthesia in a small, crescent-shaped area below the right medial malleolus and recurrent vein on the upper inner aspect of the thigh. REPRESENTATION Appellant represented by: Leann Baker, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2009 and August 2013 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in May 2013, and a transcript of the hearing is associated with his claims folder. At the time of the hearing, it was determined that the record would be held open for 60 days to permit the submission of additional evidence. The RO denied a rating in excess of 20 percent for postoperative right leg varicose veins disability in March 2009. In August 2013, it granted service connection for right leg scars of the groin and ankle and denied service connection for left leg venous disease and right and left leg peripheral neuropathy. It also found that new and material evidence had been received to reopen a claim for service connection for right lower extremity nerve involvement due to varicose veins surgery, but denied the claim on the merits. The matter of a rating in excess of 20 percent for postoperative right leg varicose veins disability was remanded by the Board in April 2015. The other issues have since then been perfected on appeal to the Board. The Board found in July 2017 that new and material evidence had been received to reopen a claim for service connection for other right lower extremity nerve involvement, and remanded all claims currently on appeal. 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. Any and all current other right lower extremity nerve involvement, right leg peripheral neuropathy, left leg peripheral neuropathy, and left leg venous disease were not manifest in service, are unrelated to service, and were not caused or aggravated by the service-connected right leg varicose veins disability. Other right lower extremity nerve involvement, right leg peripheral neuropathy, and left leg peripheral neuropathy were not manifest within 1 year of service separation. 2. The Veteran's right leg varicose veins disability does not cause persistent edema or persistent stasis pigmentation; or scars which are painful or unstable; and the associated neurological impairment is extremely minor and localized. CONCLUSIONS OF LAW 1. The criteria for service connection for other right lower extremity nerve involvement, right and left leg peripheral neuropathy, and left leg venous disease, all claimed as secondary to the service-connected postoperative right leg varicose veins disability, are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). 2. The criteria for a disability rating in excess of 20 percent for postoperative right leg varicose veins with numbness and anesthesia in a small, crescent-shaped area below the right medial malleolus and recurrent vein on the upper inner aspect of the thigh, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection claims Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Organic disease of the nervous system is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Based on the evidence, the Board finds that service connection is not warranted for any or all of the Veteran's current other right lower extremity nerve involvement, right or left leg peripheral neuropathy, or left leg venous disease, either on a direct or (where applicable) presumptive service connection basis, or as secondary to service-connected postoperative right leg varicose veins disability. The preponderance of the evidence indicates that the Veteran's other right lower extremity nerve involvement, right and left leg peripheral neuropathy, and left leg venous disease were not manifest in service and are unrelated to service. They are not shown in the service treatment records or until years post-service and are not otherwise related to service by any competent, credible, and probative evidence. The Veteran advised a VA examiner in August 2013 to the effect that he had had left leg symptoms in service, but this is unsupported and is in fact contradicted by the Veteran's March 1980 report of medical history and service discharge examination. At that time, pertinent symptomatology was asked about but not reported, and the Veteran asserted that he was in good health. The service discharge examination in March 1980 also showed that the Veteran's left lower extremity was normal, and at the time of right leg varicose veins surgery in service in November 1979, it was reported that a physical examination at that time was normal except for right lower extremity varicose veins. In addition, the November 2017 examiner concluded that the left leg varicose veins were not related to service, noting that "[t]here is no documentation of cold exposure, trauma, DVT, or surgery of the left leg while in service." Additionally, when the Veteran claimed service connection for left leg varicose veins in October 2012, he implied that left leg varicose veins did not occur until after service. Instead, he indicated that he had had right leg varicose veins surgery in service (in November 1979) and that subsequently, varicose veins had extended to his left leg. The Board notes that the November 2017 examiner believed that the Veteran's venous disease preexisted service based on an October 1979 STR which noted that the Veteran reported a five-year history (which would have started prior to his period of service) of superficial varicosities of his right leg, and the Veteran reported they first appeared in elementary school. These facts were noted in the March 1981 rating decision awarding service connection for the varicose veins of the right leg. Even assuming, arguendo, that the presumption of soundness is rebutted, to the extent that the 2017 examiner suggests that left leg venous disease preexisted service, his opinion is clear that it did not increase in disability during service. Accordingly, service connection for left leg venous disease on an aggravation basis is also not warranted. Additionally, the preponderance of the evidence also indicates that the claimed disabilities were not caused or aggravated by the Veteran's service-connected right leg varicose veins disability. There is no competent evidence of record that they were, and the VA examiners in August 2013, October 2017, and November 2017 indicated that it is unlikely that they were caused by the service-connected postoperative right leg varicose veins with numbness and anesthesia in a small, crescent-shaped area below the right medial malleolus and recurrent vein on the upper inner aspect of the thigh. The VA examiner in August 2013 indicated that varicose veins do not cause nerve damage, that surgery for right leg varicose veins would not cause bilateral neurological symptoms, and that any nerve damage that occurred at the time of the Veteran's November 1979 right lower extremity varicose veins surgery would not be expected to worsen over time. The VA examiner in October 2017 indicated that varicose veins are not a known cause of peripheral neuropathy, and that a nerve injury in one leg cannot cause a neuropathy in the opposite leg. The VA examiner in November 2017 opined that it is not likely that any current left leg venous disease was caused by the Veteran's service-connected right leg varicose veins disability. That VA examiner indicated that the Veteran's left leg venous disease had progressed with "no connection to the right leg varicose veins or post-operative right leg venous disease." The examiner in November 2017 also indicated that the whole body twitching which the Veteran described is likely sleep jerks or hypnic jerks, which are a normal phenomenon. Only diseases and injuries can be service-connected. The Veteran's report to the VA examiner in August 2013 that he had left leg symptoms in service, and that examiner's initial reliance on that for an opinion that his left leg venous disease is at least as likely as not due to his service-connected right leg varicose veins, is undermined by the probative competent evidence, mentioned above, indicating that the Veteran did not have left leg symptoms in service. The examiner later in August 2013 changed that opinion to reflect the opposite, after noting that there was no documentation of left leg varicose veins in service. Additionally, the VA examiner in October 2017 - after the July 2017 Board remand to have aggravation addressed - indicated that it is not likely that bilateral lower extremity peripheral neuropathy was aggravated by the Veteran's service-connected right lower extremity varicose veins disability. The reasons were that varicose veins are not a known cause of peripheral neuropathy and that the numbness below the Veteran's right medial malleolus, after his November 1979 right lower extremity varicose veins surgery, would not be expected to worsen over time or to aggravate bilateral peripheral neuropathy, as nerve injuries are maximal at onset. The VA examiner indicated that the Veteran's sensory symptoms are suggestive of peripheral neuropathy in the setting of diabetes mellitus. The VA examiner in November 2017 opined that it was not likely that any currently diagnosed left leg venous disease is caused or aggravated by the Veteran's service-connected right leg varicose veins disability. The examiner stated that the Veteran's left leg venous disease had progressed with no connection to right leg varicose veins or its surgery. The examiner also indicated that the whole body twitching which the Veteran described is likely sleep jerks or hypnic jerks, which are a normal phenomenon. Each of the VA examiners during the course of the claim had access to and reviewed the Veteran's claims folder in rendering the opinions rendered, and gave reasons for their opinions, and so they are found to be most competent and credible, except for the initial opinion of the August 2013 VA examiner, to the effect that the Veteran's right leg varicose veins caused his left leg varicose veins. As alluded to above, that opinion is undermined by earlier evidence, and was later in August 2013 changed to reflect the opposite, by the VA examiner who examined him in August 2013. Higher rating for right leg varicose veins with numbness and anesthesia Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran appeals for a higher rating for his service-connected postoperative right leg varicose veins with numbness and anesthesia in a small, crescent-shaped area below the right medial malleolus and recurrent vein on the upper inner aspect of the thigh disability. This is currently rated as 20 percent disabling, under 38 C.F.R. § 4.104, Diagnostic Code 7120, which provides for a 20 percent rating for varicose veins with persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. It provides for a 40 percent rating if there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. The Veteran filed the claim to increase his rating for his right leg varicose veins disability in August 2008. The preponderance of the evidence indicates that the Veteran's right leg varicose veins disability does not cause persistent edema and stasis pigmentation or eczema. VA treatment records starting from August 2008 and as late as May 2017 indicate that the Veteran does not have persistent edema (records in August 2008, April 2009, August 2011, and May 2017 show that there was no edema in the Veteran's right lower extremity, and a January 2009 VA examination report shows that there was no swelling), and even as recently as the November 2017 VA examination, it was indicated that the Veteran had only intermittent edema and beginning stasis pigmentation. There are reports of record of persistent edema and consistent pigmentation or eczema, including from the Veteran during his May 2013 hearing, but they are less probative than the evidence showing that at times, there is no edema, pigmentation, or eczema. Concerning the Veteran's service-connected numbness and anesthesia in a small, crescent-shaped area below the right medial malleolus, see 38 C.F.R. § 4.124a (2016), and the scarring from his November 1979 surgery, see 38 C.F.R. § 4.118 (2016), the preponderance of the evidence is against separate compensable ratings for these under other Diagnostic Codes. The Veteran indicated at the time of his August 2013 VA examination that his linear groin and ankle surgical scars are painful when they are rubbed, but the VA examiner at the time examined them and found that they were not painful or unstable. The Board finds this more probative as they were actual clinical findings by an examiner who examined him to make the determination concerning them. Additionally, a VA examiner in August 2013 indicated that any nerve damage that occurred at the time of the Veteran's November 1979 right lower extremity varicose veins surgery would not be expected to worsen over time. The evidence shows that the original neurological symptomatology was extremely minor and localized and so it would not warrant a compensable rating under 38 C.F.R. § 4.124a. The evidence including the August 2013 VA examination report indicates that the Veteran's varicose veins affect his ability to work, by producing burning pain in his right lower extremity, but there is no evidence of unemployability due to his right lower extremity varicose veins. To the contrary, the evidence indicates that the Veteran works in a catering hall. If we were to accept the argument that evidence of occupational limitations due to a service connected disability necessarily constitutes evidence of unemployability, then entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disability (TDIU) would be reasonably raised in every case where the appellant challenged the assigned evaluation. That view is not borne out by the caselaw, which requires that the record contain evidence of unemployability to reasonably raise the issue of entitlement to TDIU. See Comer v. Peake, 552 F.3d at 1367; Roberson v. Principi, 251 F.3d at 1384. Accordingly, consideration of a TDIU for the Veteran's service-connected right leg varicose veins disability is not warranted. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board would like to thank the Veteran for his service, and regrets that the benefits sought on appeal cannot be granted. ORDER Service connection for other right lower extremity nerve involvement, claimed as secondary to postoperative right leg varicose veins disability, is denied. Service connection for right leg peripheral neuropathy, claimed as secondary to service-connected postoperative right leg varicose veins disability, is denied. Service connection for left leg peripheral neuropathy, claimed as secondary to service-connected postoperative right leg varicose veins disability, is denied. Service connection for left leg venous disease, claimed as secondary to service-connected postoperative right leg varicose veins disability, is denied. A rating in excess of 20 percent for postoperative right leg varicose veins with numbness and anesthesia in a small, crescent-shaped area below the right medial malleolus and recurrent vein on the upper inner aspect of the thigh is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs