Citation Nr: 21004904 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-02 963 DATE: January 28, 2021 ORDER Entitlement to service connection for varicose veins is granted. FINDING OF FACT The competent medical and lay evidence is at least in relative equipoise as to whether to Veteran’s lower extremity varicose veins were aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for varicose veins have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1958 to September 1961. For his meritorious service, the Veteran was awarded, among other decorations) a Parachutist Badge. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in June 2020, when it was remanded for additional evidentiary development. In substantial compliance with the remand directives, a VA examination was conducted, and the matter is again before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). The Veteran offered testimony at a videoconference hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing has been associated with the record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection on a direct basis requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet.") When a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder." Wagner v. Principi, 370 Vet. App. at 1089, 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on VA to rebut that presumption. Horn v. Shinseki, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, VA must show, by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Id.; 38 U.S.C. § 1153. The Board notes that the clear and unmistakable evidence standard is a far more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 1 16, 131 (2003). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence considering the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis made by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 78 F.3d 604 (Fed. Cir. 1996); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s DD 214 reflects that he attended Airborne School in April through May 1959, received a parachutist badge and had a military occupational specialty (MOS) of field artillery crewman with the 1st Airborne Battle Group. A review of the Veteran’s service treatment records indicates that upon service induction in September 1958 the Veteran denied all medical conditions other than hay fever in his Report of Medical History. Upon clinical examination the military physician documented asymptomatic varicosities of the lower extremities, moderate in severity. In February 1959 the Veteran sought medical clearance to be qualified to attend Parachute School. Clinical examination documented a normal vascular system without varicosities and normal lower extremities. The Veteran prepared a Report of Medical History at the time of his separation in August 1961 denying leg cramps or receiving treatment for any other medical illness. The examining physician documented that the Veteran had moderate varicose veins in his left thigh and leg. VA received a statement from the Veteran in January 2018 in which he cited Citation number 0810647, a decision in which a claim by a military parachutist for service connection for varicose veins was granted without evidence of treatment in service. The Veteran notes that although his medical treatment evidence is limited due to destruction of older records, he did submit a statement from his wife. The Veteran noted that if parachuting can cause varicose veins, he imagined that parachuting could aggravate pre-existing varicosities. In March 2018, the Veteran underwent a VA examination for Artery and Vein conditions performed by the Veteran’s private treating physician, Dr. R. L. He documented the Veteran’s varicose veins which produced aching and fatigue in both legs after prolonged standing or walking and persistent edema. Dr. R.L. began treating the Veteran in March 2014 at which point both the Veteran’s greater saphenous veins had already been removed and he had previously undergone a popliteal vein bypass. At the Veteran’s August 2018 hearing, he testified that when he entered service his varicose veins were visible but that he had no discomfort and no difficulties with standing or walking. During service the Veteran described performing 29 parachute jumps at night, many of them carrying gear in a bag in which he experienced rough impact landing on his feet which caused him to limp as his legs felt weak until he walked around for a while. In his last year of service, he noticed that when he landed his legs would shake and were painful until he stopped. The Veteran testified that he often needed to take breaks and walk around for a while as a gunner as those duties required him to perform a lot of heavy lifting including holding a round that weighed between 50 to 75 pounds while standing and from time to time lifting the base which weighed 600 to 700 pounds. The Veteran testified that he was sent to the dispensary on one occasion by his sergeant as he was having pain in his legs. He was seen however he was told that they could not offer him any treatment and the clinician did not offer him a physical profile. As he separated from service, the Veteran testified that his varicosities were all below the knees and had become larger, bulkier and felt “just like a rope.” After service, the Veteran had increasing discomfort in his legs such that he couldn’t drive for long periods without stopping and walking around. He also noticed that his legs would lose color when he sat down until he stood up and started walking. By 1965 the Veteran’s pain had increased to the point that he was offered, and he elected to undergo his first varicose vein stripping surgery. He recognized that jumping in service had aggravated his varicose veins causing his legs to continue to be painful and bother him. Since 1965, the Veteran has had 17 surgeries for his varicose veins including vein stripping and repair of vein ruptures. In October 2019 the Veteran underwent a VA examination for Vascular Diseases including Varicose Veins with an associated medical opinion. The Veteran disclosed that he had varicose veins since 1961 that had been treated with compression stockings and surgery. Symptoms of both legs included aching and fatigue after standing and walking, relief of the symptoms with elevation, persistent stasis pigmentation, and intermittent edema. The examiner provided an opinion based upon review of the STRs, VA and private treatment records, and the current examination concluding that it was less likely than not that the Veteran’s varicose veins were aggravated by service as his condition pre-existed service. As rationale, the examiner pointed out that no change was noted between the enlistment examination and the separation examination such that the Veteran’s condition had not been aggravated. In June 2020 the Board remanded the claim for a supplemental opinion noting that the examiner had applied the incorrect less-likely-than-not standard for an opinion on aggravation. In July 2020, the examiner prepared a restatement of his opinion noting that it was less likely than not that the Veteran’s varicosities were caused by service given that the condition was documented on his pre-entrance examination. Further, the varicose veins were not clearly and unmistakably aggravated beyond their natural progression by service as there was no evidence of worsening beyond the natural progression in service and the first treatment for the condition was in 1965. The examiner supported his rationale with medical literature which states that nearly half of the general population suffering from chronic venous insufficiency deteriorate during a 13-year period. The Court of Appeals for Veterans Claims has specifically held that varicose veins are a disability that is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the Veteran is competent to report his lay observations. See Layno, supra. The examiner did not consider the Veteran’s lay statements including the Veteran’s sworn hearing testimony in his opinion regarding symptom progression. The Veteran testified credibly and in some detail regarding his difficulties with his varicose veins in service as well as in the years immediately following service. In addition, the Board disagrees that there is no documentation of progression in the STRs. Upon induction the Veteran’s moderate varicose veins were noted to be asymptomatic. On his clinical examination to qualify for parachute school six months later, the physician did not note any abnormalities of the Veteran’s vascular system or lower extremities. Comparing the Veteran’s pre-induction physical with the separation physical, the varicose veins progressed as they were no longer characterized as asymptomatic. Comparing his qualifying physical for parachute training to his separation physical the Veteran’s progression is more dramatic starting with no apparent vascular abnormalities and ending with moderate varicose veins not characterized as asymptomatic. The Veteran’s physical examinations are consistent with the Veteran’s lay statements that his varicose veins were visible but asymptomatic upon entering service but larger and painful upon separation from service. See Caluza, supra. The Board finds that the Veteran met his burden of demonstrating a progression of his symptoms in service such that the burden of persuasion shifts to the VA to establish by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. The Board finds limited probative value in the medical opinion evidence. An evaluation of the probative value of the medical opinion evidence is based on the medical expert’s examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 7 Vet. App. 467 (1993). The Board finds that the medical article provided by the VA examiner discussing the natural progression of chronic venous insufficiency does not rise to the level of clear and unmistakable evidence to rebut the presumption of aggravation. See Cotant, supra. The study does not provide a persuasive rationale as to why the Veteran progressed from being asymptomatic to chronic venous insufficiency requiring surgery all in less than 4 years at a far younger age than the average age of the general population of those with chronic venous insufficiency, less than half of whom deteriorate over a period of 13 years. There is scant evidence in the STRs, private treatment records, VA treatment records or the Veteran’s testimony that rebuts the otherwise credible evidence that there was aggravation of the Veteran’s varicose veins during his active service from August 1958 to September 1961. As a result, the competent medical and lay evidence of a progression of the Veteran’s symptoms in service establishing the presumption of aggravation is at least in relative equipoise and there is not clear and unmistakable evidence that the Veteran’s symptoms were due to the natural progression of the disease and not service. Horn, supra. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds service connection for varicose veins affecting the bilateral lower extremities is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, 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.