Citation Nr: 20005692 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 13-03 570 DATE: January 23, 2020 ORDER Entitlement to service connection for varicose veins of the right leg, to include as secondary to hypertension and left leg varicose veins is denied. REMANDED Entitlement to a total disability evaluation based upon individual unemployability for the period prior to March 2, 2015 is remanded. FINDING OF FACT The preponderance of the evidence is against finding that right leg varicose veins began during active service, or are otherwise related to an in-service injury or disease, or are due to service-connected hypertension or left leg varicose veins. CONCLUSION OF LAW The criteria for service connection for right leg varicose veins, to include as due to service or service-connected hypertension or left leg varicose veins are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1973 to April 1981 and from August 1981 to August 1994. 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, February 2016, and January 2018, the Board of Veterans’ Appeals (Board) remanded the appeal for further development. The case has since been returned to the Board for further appellate consideration. The Board has recharacterized the issues to reflect that: (a) the Veteran is claiming entitlement to service connection for right leg varicose veins secondary not only to hypertension, but also secondary to left leg varicose veins; and (b) entitlement to a total disability evaluation based on individual unemployability beginning March 2, 2015 has already been granted and is no longer on appeal. Entitlement to service connection for right leg varicose veins Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected (except as provided in 38 C.F.R. § 3.300(c)) and any increase in severity (aggravation) 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. 38 C.F.R. § 3.310. The Board has reviewed the Veteran’s claims file in its entirety, and it finds that the most relevant evidence contained therein as related to this issue consists of the Veteran’s written statements, transcripts of hearings before the Board, the documents that he has submitted in support of this claim (including a letter from one of his private physicians and a printed copy of a webpage discussing chronic vein disease), his service treatment records and the relevant VA examination reports in his claims file. For clarity, the Board notes that the Veteran’s private and VA treatment records do not contain any notes relating to the etiology of his varicose veins in his right leg. Accordingly, the Board’s analysis herein will focus on the relevant evidence previously listed. According to the Veteran’s written statements and the transcripts of his hearings before the Board, he claims that he is entitled to service connection for varicose veins in his right leg because they resulted from his work during his active military service, his service-connected hypertension, and/or his service-connected left leg varicose veins. However, the Board notes that the Veteran is not competent to opine on the etiology of his right leg varicose veins, in the absence of medical training or credentials. The issue, concerning a disability of the vascular system, is medically complex, as a diagnosis and a competent opinion as to etiology require medical training and credentials. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The service treatment records reflect that he was suffered a left leg injury and that he had left leg varicose veins in the left knee area at his discharge from active duty service, in May 1994. In June 2012, the Veteran submitted an article titled “Chronic Vein Disease” as evidence. According to the article, varicose veins are the most common early sign of vein disease, and high blood pressure, previous leg injuries, and jobs that require prolonged standing or heavy lifting increase one’s risk of developing vein disease. The Veteran submitted a letter from one of his private physicians in March 2014. In that letter the physician opined that it was possible that the Veteran’s varicosities began with his in-service knee injury. No further rationale was provided. The physician did not specify what, if any, prior medical records had been reviewed in conjunction with this opinion. The Veteran was afforded several VA examinations for his varicose veins. Following a May 2015 examination the examiner opined that the Veteran’s lower extremity varicose veins were less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. However, that examiner stated in the report of that examination that a diagnosis of varicose veins was not found on review of service treatment records. Since left leg varicose veins were found at his May 1994 separation examination, another opinion was requested. The second VA examination for the Veteran’s varicose veins was in May 2016, and the report of that examination indicates that the examiner was of the opinion that it is less likely than not that the Veteran’s left varicose vein disability aggravated or caused by his right leg varicose veins since there is no medical evidence of right varicose veins until 2015, per medical records. However, the examiner indicated in the report that the Veteran’s VA claims file was not reviewed. As a result of that fact and the inadequacy of the May 2015 VA examination, yet another opinion was requested. The third relevant VA examination was performed in April 2018. The examiner who performed that examination opined that the Veteran’s right leg varicose veins were less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner confusingly wrote that “[t]he Veteran’s claimed varicose veins, right leg, are less likely than not incurred in or caused by the varicose veins in the right leg during service.” However, in determining that it was less likely than not that the claimed varicose veins of the right leg are caused or are aggravated by the left leg varicose veins, the examiner also clearly stated that varicose veins in one leg do not cause varicose veins in another leg. Regarding causation of the right leg varicose veins by hypertension, the examiner stated that the diagnosis of hypertension is not sufficient evidence and not specific enough to support the Veteran’s claim or to determine an aggravating relationship between the hypertension and right leg varicose veins. Therefore, no nexus was established. There is no competent medical evidence in the claims file indicating that it is at least as likely as not that the Veteran’s right leg varicose veins were incurred during or as a result of his active military service, that they were incurred as a result of or aggravated by his service-connected hypertension, or that they are due to or aggravated by left leg varicose veins. As noted, the Veteran’s lay opinion is not competent evidence. The March 2014 private physician’s letter indicates that a relationship with service was “possible,” but the Board views this as merely speculative and, moreover, unsupported by a rationale or any indication of a review of prior relevant medical records. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). This letter is unequivocally of lower probative value than the other relevant evidence of record, notably the aforementioned VA examination reports and the Veteran’s service treatment records, which collectively indicate that right leg varicose veins were not incurred during or as a result of his active military service or caused or aggravated by his service-connected hypertension or varicose veins in his left leg. Accordingly, as the preponderance of the evidence weighs against this claim, the claim is denied. REASONS FOR REMAND Entitlement to individual unemployability prior to March 2, 2015 The issue of entitlement to a total disability evaluation based on individual unemployability prior to March 2, 2015 is referred to the Director of the Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The Veteran does not meet the schedular criteria for individual unemployability benefits under 38 C.F.R. § 4.16(a) for the portion of the appeal period prior to March 2, 2015 because his combined disability rating was only 30 percent. However, competent medical evidence suggests that the combined effects of his service-connected disabilities may have rendered him unemployable during that period. See, e.g., Social Security Administration records received in March 2012; private treatment records received in August 2016. As the Board cannot adjudicate entitlement to individual unemployability on an extraschedular basis in the first instance, referral is required. The matters are REMANDED for the following action: Refer the case to the Director, Compensation and Pension Service for consideration whether entitlement to a total disability evaluation based on individual unemployability prior to March 2, 2015 is warranted on an extraschedular basis. All documentation resulting from this referral must be added to the claims file prior to the readjudication of the claim. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals MICHAEL J. SKALTSOUNIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.