Citation Nr: 19155771 Decision Date: 07/18/19 Archive Date: 07/18/19 DOCKET NO. 14-01 956 DATE: July 18, 2019 ORDER Service connection for varicose veins of the left leg is denied Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that varicose veins of the left leg resulted from an in-service injury to the left heel, or that the condition is otherwise related to active service. 2. The Veteran’s service-connected disability does not meet the schedular threshold for TDIU and the evidence does not suggest that he is rendered unemployable by such disability alone. CONCLUSIONS OF LAW 1. The criteria for service connection for varicose veins of the left leg have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1969 to April 1971. These matters were previously before the Board in March 2018, at which time they were remanded for further evidentiary development. Following the remand, the Veteran requested a change in his representative. This was completed prior to recertification to the Board. As such, the Board will accept the change in representation in accordance with 38 C.F.R. § 20.1304 (2018). At a December 2016 videoconference hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 1. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). The Veteran has contended that an injury to his left Achilles tendon in active service has resulted in his currently-diagnosed varicose veins of the left leg. The Veteran’s service treatment records (STRs) reflected that he sustained an injury to his left heel in service. His April 1971 separation examination noted a healing wound and scar on his left heel. Following discharge, he underwent a VA examination in January 1972 which noted that after he cut his left heel in service, it required 14 stitches. The examiner stated that the injury had improved and that the Veteran reported that it bothered him very little. He described some soreness in the left Achilles tendon after using the leg strenuously in playing basketball but otherwise, it had been asymptomatic. Examination revealed a well-healed, semi-circular type scar over the left heel areas just above the calcaneus. X-ray examination was negative, and function was normal in the left leg, foot, and calf. Subsequent to the examination, service connection for a scar of the left heel area was granted. Another VA examination was conducted in March 1983. The Veteran reported being seen once by VA clinicians in 1978 due to pain in the left foot, extending to the bend in the left knee. In 1979, he stated that he noticed bulging of the vein on the posterior side of the left knee. Examination of the left foot revealed a surgical scar of light coloration. Range of motion of the left ankle was normal, with no evidence of tenderness on palpation. Musculature of the left leg was firm with absence of any trophic changes. The left lower extremity revealed the presence of an area of varicosities at the popliteal area with some sacculation. No other varicosities were observed on the left lower extremity and there was absence of any prominent venules. X-ray examination yielded normal results. Pertinent VA treatment records included a July 2000 notation that the Veteran had varicosities behind the left knee. The Veteran reported that he believed some of the problem was the result of distended veins from his previously severed left Achilles tendon. He noted that over the past year he had been noticing varicosities, first distally above the ankle, lower calf, and then into the popliteal area. He was diagnosed with symptomatic varicosities of the left leg. The VA clinician stated that he agreed that the varicosities may be due to his previous Achilles tendon surgery. A surgery consultation was ordered regarding the Veteran’s large left leg veins. The surgeon stated that the Veteran had varicose veins in his left lower extremity, mainly around the posterior knee, which were worse when he was on his feet for a long time and which were relieved with elevation of the legs. The surgeon noted that he did not believe that the condition had anything to do with an Achilles tendon injury. Throughout later VA treatment records, the Veteran noted continued pain, swelling, and a burning sensation. Edema was noted upon numerous occasions in the bilateral lower extremities, and it was stated that this was due to bilateral varicose veins. It was noted in a January 2017 VA treatment record that the Veteran’s chronic obstructive pulmonary disease (COPD) was contributing to the bilateral edema from the varicose veins in his ankles and feet. In a February 2012 statement, the Veteran claimed that his left leg injury had hurt him all of his life and that he was told that this was due to varicose veins that would bulge and swell, causing severe pain. At the December 2016 hearing, the Veteran stated that he had pain in his left leg for which he sought VA treatment in approximately 1972 or 1973. He noted that he developed varicose veins in his left leg in approximately 1974 or 1975, and had symptoms of pain, described as occurring behind his knee down through his calf to his ankle. He stated that he only had varicose veins in his left leg and that the symptoms came and went. He experienced problems with prolonged standing and walking and with driving due to pain in his left leg. The Veteran also noted that he used a wheelchair due to both the pain in his left leg and his COPD. A VA examination was conducted in December 2018. The Veteran reported to the examiner that he began to notice swelling in the veins of his lower left extremity in 1974 or 1975 and that it had been going on intermittently since then. Upon evaluation, significant bilateral lower extremity edema (4+ pitting) was revealed. Varicose veins were not observed. The Veteran reported that approximately two to three times per month he experienced exacerbations where his veins would swell, but it was not currently in evidence. The left lower extremity scar was very hard to discern. The examiner found that it was less likely than not that any varicose veins of the left leg were caused by the injury sustained in service to the Veteran’s left heel that produced the currently service-connected scar. The examiner explained that typically, varicose veins arise when there is incompetency in the unidirectional valves in the lower extremity veins which facilitate the return of blood to the heart against gravity. Usually, this incompetency of the veins is located in the valves close to the trunk, causing the venous blood to pool in the veins of the lower extremity, causing them to swell. Any disruption of veins in the distant periphery is not likely to cause varicose veins, as the drainage above this area would be sufficient to keep blood return to the trunk normal. The examiner further concluded that no evidence in the record supported a connection between the in-service injury and the diagnosis of varicose veins. He noted that the bilateral lower extremity edema observed upon examination was more likely than not due to the Veteran’s congestive heart failure and other comorbidities. The Board attaches significant probative value to the December 2018 VA opinion as it is well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The only medical evidence of record suggesting a connection between the Veteran’s current varicose veins and the in-service left heel injury is the July 2000 clinician’s statement, which did not provide any rationale for the conclusion that the varicose veins were due to an Achilles tendon injury. Further, the opinion was later disputed after a surgical consultation. Although the Veteran stated that he only experienced varicose veins in his left leg, the VA clinical records indicated the condition occurred bilaterally, resulting in edema in both legs. Bilateral edema was also observed at the VA examination. The condition also occurring in the right leg would argue against a left Achilles tendon injury etiology. The Board recognizes that the Veteran believes that the in-service injury to the left heel resulted in the later diagnosis of varicose veins. However, he has not been shown to have the requisite medical knowledge and experience to render an opinion on the etiology of a complex medical condition. As such, his opinion on etiology does not constitute competent evidence. The most probative evidence of record is the VA examiner’s opinion, which determined it was less likely than not that any varicose veins resulted from the in-service injury. Based on the foregoing, the Board finds that a preponderance of the evidence is against awarding service connection for varicose veins of the left leg. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 2. TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19 (2017); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The Veteran is only service connected for one disability, scar of the left heel area, at a noncompensable rate. As such, he does not meet the schedular threshold for TDIU. Nevertheless, in exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board has no authority to assign a TDIU rating under section 4.16(b) and may only refer the claim to the Director, Compensation Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). At a December 2018 VA examination, it was noted that the Veteran’s scar in the left Achilles region was 8 cm long and.010 cm wide, and that it was very hard to discern on observation. The examiner stated that for a variety of reasons, including nonservice-connected obesity, congestive heart failure, diabetes, COPD, and lower extremity edema/varicose veins, the Veteran was essentially wheelchair-bound and would have a very difficult time finding or maintaining gainful employment due to the sum total of his disabilities. He would not be able to walk or stand for any reasonable period due to his overall deconditioning. There is no medical evidence in the claims file that the Veteran’s scar causes any functional impairment. The Board finds that entitlement to TDIU is not established. As noted above, the Veteran’s service-connected scar does not meet the threshold for a schedular TDIU. Further, the medical evidence indicated that, although the Veteran was likely not able to maintain substantially gainful employment, this was due to his nonservice-connected disabilities alone. Accordingly, entitlement to TDIU is not warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.