Citation Nr: 21069252 Decision Date: 11/18/21 Archive Date: 11/17/21 DOCKET NO. 17-28 562 DATE: November 18, 2021 ORDER Entitlement to service connection for varicose veins of the bilateral lower extremities is denied. Entitlement to service connection for colon polyps is denied. REMANDED Entitlement to service connection for right knee osteoarthritis with patellofemoral pain syndrome and chondromalacia, hereinafter right knee disability, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The weight of evidence is against a finding that the Veteran has had a varicose veins disability in his lower extremities at any time during the period on appeal. 2. The weight of evidence is against a finding that the Veteran has had a colon polyps disability at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a varicose veins disability in the lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for a colon polyps disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to June 1990, February 2003 to July 2004, February 2008 to December 2008, January 2010 to February 2010, and August 2010 to September 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. This appeal was originally certified to the Board with two additional issues: entitlement to service connection for a right ankle disability and a left ankle disability. However, in a March 2017 rating decision, the RO granted entitlement to service connection for each the right ankle and the left ankle. As such, the issues are no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for a Varicose Veins Condition and/or Colon Polyps Disability Legal Criteria for 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, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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). Lay evidence can 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 by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Varicose Veins and Colon Polyps The Veteran contends that he has a varicose veins condition and colon polyps that originated during active-duty service. Because the circumstances and the timing are similar for these two claimed disabilities, the Board will discuss the two of them together. The Veteran noted he had been diagnosed with varicose veins in the lower extremities during one of his active-duty periods in 1990. The Veteran's retirement physical examination from April 2015 is silent for any mention of varicose veins, past or present. That same retirement physical examination does not mention specifically the current presence of colon polyps, but only that the Veteran had a history of colon polyps and is due another colonoscopy. The Veteran also stated he had a colonoscopy in May 2004 and that colon polyps were discovered during the procedure and were removed. VA provided examination for the Veteran's claimed varicose veins of the lower extremities in September 2015. The examiner noted a diagnosis by history of varicose veins in the lower extremities from 1990, found in a service treatment record. The examiner noted the Veteran does not have any signs or symptoms of varicose veins in either lower extremity at the time of the examination, and there are no service or post-service records that indicate any further symptomatic presentation of varicose veins into the time of this examination. The examiner stated the Veteran does not have varicose veins of either lower extremity, or any other post-phlebitic syndrome of any etiology. This examiner provided a negative opinion for service connection, saying the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the Veteran does not have a current disability of varicose veins of the bilateral lower extremities, and as such, there is no current disability to which to examine any etiology from a 1990 record. VA also provided an examination for the Veteran's claimed colon polyps in September 2015. Here, the examiner noted by history the Veteran's colonoscopy from May 2004 and the discovery of two polyps which were excised as part of that procedure. The examiner noted that since that May 2004 procedure, the Veteran had not had another colonoscopy or any medical report that indicated any continuation of colon polyps that were symptomatic and indicative of a current disability. This examiner provided a negative opinion for service connection, saying the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the Veteran does not have a current disability of colon polyps, since none are documented currently in the time from the original claim, and as such, there is no current disability to which to examine any etiology from a 2004 record. The Board finds the September 2015 examinations for each disability to be highly probative as they are sound and thorough, and had sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting medical literature and clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). 1. Entitlement to service connection for varicose veins of the bilateral lower extremities 2. Entitlement to service connection for colon polyps In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability of either a varicose veins condition or a colon polyps condition by any VA medical examiner. Thus, the Veteran's claim does not meet the first prong of service connection, the requirement of a current disability, for either disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Board notes that the existence of a current disability at any time during the current appeal period is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that, at some time during the current appeal period, the Veteran has the disability for which benefits are being claimed. Here, however, as noted above, the competent and credible evidence of record does not establish that, at any time during the current appeal period, the Veteran has had a diagnosis of a varicose veins condition and/or a colon polyps disability. In this regard, the Board notes that Congress has specifically limited service connection to instances where there is current disability (during the current appeal period) that has resulted from disease or injury. 38 U.S.C. § 1110. In the absence of a current disability during the current appeal period, the analysis ends, and the claim for service connection for a varicose veins condition and/or a colon polyps disability cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Upon review of the evidence of record, the Board finds that the weight of the competent and probative evidence does not demonstrate that entitlement to service connection is warranted for the Veteran's claimed varicose veins condition and/or a colon polyps disability. Here, no examiner or medical professional has made a diagnosis of a current disability related to the Veteran's claimed a varicose veins condition and/or a colon polyps disability. The service treatment records note the 1990 varicose veins treatment note and the Veteran's 2004 colonoscopy, but did not document any residual injury or disability at time of separation from active service. The examinations at reserve service retirement in 2015 found no current disability of either a varicose veins condition of the lower extremities, or a colon polyps disability. The Board notes the statements from the Veteran regarding his varicose veins condition and his colon polyps. Generally, lay evidence is probative with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence on its own can be sufficient evidence of a diagnosis if (1) the 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 by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. However, a layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). To the extent that the Veteran can observe symptoms in his body, to include a varicose veins condition and colon polyps, he is competent to comment on and endorse these symptoms. However, the determination of the etiology of a varicose veins condition and/or his colon polyps disability is a complex medical determination beyond his competence. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability of a varicose veins condition and/or a colon polyps disability by any VA medical examiner. Thus, the Veteran's claim fails the first prong of service connection, the requirement of a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Because the Veteran has no in-service or related disease or injury that occurred in service or within one year after leaving active service that is not already accounted for in his other service-connected disabilities, the Veteran fails the second prong of the test for entitlement to direct service connection for each the varicose veins condition and/or his colon polyps disability. See id. The Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) ("pain alone can serve as a functional impairment and therefore qualify as a disability"). That Federal Circuit decision qualified that holding, however: "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain.... To establish the presence of a disability, the veteran will need to show that [his] pain reaches the level of functional impairment of earning capacity." Id. at 1365. In this case, however, the VA examinations conducted during the pendency of this appeal in September 2015 did not show any symptoms of a varicose veins condition and/or a colon polyps disability, to include symptoms of pain for either claim. The Veteran has received multiple examinations for his varicose veins condition and/or his colon polyps disability, but there has been no observation of symptoms for a varicose veins condition and/or his colon polyps disability. The examiner determined that any pain, weakness, fatigability, or incoordination did not limit any functional ability. The examiner determined there was insufficient current objective pathology for the claimed varicose veins condition and/or his colon polyps disability, and thus the Veteran does not have a current diagnosis associated with any condition of his varicose veins condition and/or his colon polyps disability claim. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed varicose veins condition and/or his colon polyps disability were not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a varicose veins condition and/or his colon polyps disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 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, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A disability can be service-connected on a secondary basis if proximately due to, or the result of, a service-connected condition. See 38 C.F.R. § 3.310(a). In order to establish entitlement to service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board also takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Entitlement to service connection for right knee osteoarthritis with patellofemoral pain syndrome and chondromalacia, hereinafter right knee disability, to include as secondary to service-connected disability, is remanded. The Veteran originally claimed bilateral knee osteoarthritis in his May 2015 original claim for service connection. Service connection for the left knee was granted in an October 2015 rating decision, but that same decision denied the right knee disability. The Veteran asserts that his right knee osteoarthritis with patellofemoral pain syndrome and chondromalacia is documented in a service record date June 2014, which the Board notes is after his last period of active service in September 2010. Furthermore, the Veteran has asserted in multiple statements that his right knee disability has become worse because of his left knee disability, indicating the possibility of secondary service connection. Also, since the original claim, the Veteran is now service-connected for each his right ankle and his left ankle, raising the possibility that the Veteran's claimed right knee disability can be due to his service-connected left knee, his right ankle, or his left ankle. VA provided examinations in September 2015, January 2017, and October 2019. But in each case, the examination focused on the left knee and not the right, and no opinion has been given specifically for the right knee, to include the possibility of secondary service connection. As such, the Board finds that remand is necessary for a VA examination for the right knee, and an opinion for service connection that includes the consideration of possible secondary service connection due to other service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. After the above records search is complete, schedule the Veteran for a VA examination by a VA examiner with expertise in orthopedics qualified to evaluate the nature and etiology of the Veteran's claimed right knee condition. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: (a.) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed right knee condition had its onset in service or is otherwise related any to any in-service disease, event, or injury. (b.) If not, is it at least as likely as not (probability of fifty percent or greater) that the right knee disability was caused by the Veteran's service-connected left knee disability or any other service-connected disability? (c.) If service-connected disability did not cause the right knee disability, is it at least as likely as not (probability of fifty percent or greater) that the right knee disability was aggravated (an increase in severity) by the service-connected disability? (d.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the right knee disability by the service-connected disability. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). When considering the evaluations, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Attention is invited to the Veteran's reports and statements of chronic pain in his knees since active service. The Board takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112(2). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.