Citation Nr: 21074811 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-39 968 DATE: December 16, 2021 ORDER Entitlement to service connection for left leg varicose veins is granted. The petition to reopen a claim of entitlement to service connection for a respiratory disorder is granted. REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for bilateral lower extremity neuropathy as secondary to service-connected right and left leg varicose veins is remanded. Entitlement to a compensable evaluation for service-connected right heel spur is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected right leg varicose veins is remanded. Entitlement to a compensable evaluation for service-connected dermatitis of the legs and face with herpes is remanded. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that left leg varicose veins had onset during service. 2. An unappealed June 2010 rating decision denied service connection for a respiratory disorder; new and material evidence was not received prior to expiration of the appeal period; and subsequently received evidence relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for a respiratory disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left leg varicose veins are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The June 2010 rating decision denying service connection for respiratory disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. 1. Entitlement to service connection for left leg varicose veins is granted. The Veteran contends that his left leg varicose veins began during active service. See NOD (August 2015); Form 9 (July 2018). He has asserted that his symptoms continued after service and that he had surgery in 2012. See C&P Exam (November 2016). The Board finds that service connection is warranted as the evidence shows that the Veteran has a current disability of left leg varicose veins that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Recent VA treatment records, a 2016 VA examination, and a February 2020 private treatment letter demonstrate a diagnosis of left leg varicose veins. See Medical Treatment Record Government Facility (May 2020); Medical Treatment Record Non-Government Facility (February 2021); CAPRI (January 2018); C&P Exam (November 2016). During service, left calf varicosities and varicose veins were twice noted in 1981. See STR Medical (November 1995); STR Medical Photocopy (July 2014). Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of the claim. The evidence in favor of the claim includes a VA examination report and a private examination report. A November 2016 VA examination was conducted upon review of claims file. The examiner opined that the Veteran's bilateral varicose veins at least as likely as not were caused directly from the Veteran's active duty service, noting the presence of bilateral varicose veins while on active duty, secondary to tight socks/shoes. See C&P Exam (November 2016). A February 2020 letter from a private Board-certified surgeon in vascular surgery was submitted. See Medical Treatment Record Non-Government Facility (February 2021). The physician reviewed the Veteran's service treatment records and VA treatment records and noted that they had treated the Veteran intermittently since 2018. The physician opined that it was highly likely that the left lower extremity varicose veins were a direct result of the military service, noting the Veteran's known risk factors of constricting boots during service and assignments that often led to prolonged standing. See Medical Treatment Record Non-Government Facility (February 2021). The Board finds both of these opinions to be significantly probative, as they are based upon a review of the claims file, consideration of the Veteran's lay statements of symptoms, and included a supporting explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Notably, there is no negative opinion of record. Upon review of the record, the Board finds the evidence shows that the Veteran's left leg varicose veins began in service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim is granted. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory disorder. The Veteran contends that his respiratory disorder began during service, in 1982. See VA 21-526 Veterans Application for Compensation or Pension (March 2010). The Board concludes that the June 2010 rating decision denying the claim for service connection for respiratory disorder is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a June 2010 rating decision, the RO denied service connection because although there was a diagnosis of asthma, STRs were silent and the evidence did not show a nexus to service. See Rating Decision (June 2010). The Veteran did not appeal that decision nor submit new and material evidence within one year. Although there are several entries for STRs in the claims file, they appear to be duplicates of the STRs submitted prior to the 2010 rating decision. See 38 C.F.R. § 3.156(c). The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the June 2010 decision includes the Veteran's STRs, VA treatment records, and lay statements. VA treatment records note diagnoses of asthma. See Medical Treatment Record Government Facility (June 2010). STRs contain a notation of asthma in an undated record. See STRs (November 1995). The Veteran asserted his breathing problems began during service, while he was stationed in Germany. See VA 21-526 Veterans Application for Compensation or Pension (March 2010). Evidence submitted after the June 2010 decision includes VA treatment records and lay evidence, including hearing testimony. VA treatment records note diagnoses of asthma and treatment of asthma, including medications. See CAPRI (December 2016). The Veteran reported symptoms of asthma since service. See NOD (October 2015). At the Board hearing, the Veteran asserted exposure to diesel and fumes due to his military occupational specialty (MOS) as a vehicle mechanic. See Hearing Transcript (February 2021). The Board finds that new and material evidence has been presented. The evidence, including lay evidence of specific in-service exposures and symptoms after service, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of in-service onset and continuous symptoms. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder is remanded. The Veteran contends that his respiratory disorder began during service, in 1982. See VA 21-526 Veterans Application for Compensation or Pension (March 2010). The Veteran reported symptoms of asthma since service. See NOD (October 2015). At the Board hearing, the Veteran asserted exposure to diesel and fumes due to his military occupational specialty as a vehicle mechanic. See Hearing Transcript (February 2021). The Board finds that remand is warranted to obtain a VA examination and opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, VA treatment records provide diagnoses of asthma and medical treatment. See CAPRI (December 2016); Medical Treatment Record Government Facility (June 2010). The Veteran has provided lay evidence of in-service diesel and gas fumes exposure, which is supported by his MOS as a wheeled vehicle mechanic. See Hearing Transcript (February 2021); Military Personnel Record (March 2015). The Veteran has also asserted that his symptoms began during service and continued thereafter. See VA 21-526 Veterans Application for Compensation or Pension (March 2010); NOD (October 2015). Accordingly, VA must obtain an examination and etiological opinion. 2. Entitlement to service connection for bilateral lower extremity neuropathy as secondary to service-connected right and left leg varicose veins. The Veteran contends that his peripheral neuropathy is secondary to his service-connected varicose veins, which involves impairment of the vascular system. See Hearing Transcript (February 2021). The Board finds that remand is warranted to obtain a VA examination and opinion. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. Here, VA treatment records note assessments of peripheral arterial disease neuropathy and peripheral neuropathy. See CAPRI (August 2018); CAPRI (May 2020). Additionally, the Veteran is now service-connected for bilateral lower extremity varicose veins. Because there is evidence of a currently diagnosed disability and an indication that the current disabilities may be associated with the service-connected disabilities, remand for a VA examination is required. 3. Entitlement to a compensable evaluation for service-connected right heel spurs is remanded. The Veteran contends he is entitled to at least a 10 percent evaluation for his service-connected right heel spurs as they cause significant heel pain. See Hearing Transcript (February 2021). The Board finds that remand is required to obtain clarification regarding the parameters of the service-connected disability. An examination or opinion is adequate where it is based on consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board must consider all potentially applicable regulatory provisions, to include alternate diagnostic codes for assigning evaluations. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Here, the Veteran is service-connected for right foot heel spurs. See Rating Decision (July 2015). In a 2016 VA examination conducted upon review of the claims file, the VA examiner opined that the Veteran's metatarsalgia was not related to his heel spurs. See C&P Exam (November 2016). The VA examiner did not provide any responses regarding whether there was hammer toes, hallux valgus, hallux rigidus, or pes cavus. See C&P Exam (November 2016). In 2018, a VA examination was conducted without review of any medical records. See C&P Exam (February 2018). The examiner opined that there were diagnoses of osteoarthritis, pes planus, metatarsalgia, hallux valgus, and hammer toes, and that these were a progression of the original diagnosis of right foot heel spurs. See C&P Exam (February 2018). However, as that examiner did not review the prior records, it isn't clear that the Veteran's service-connected right foot heel spurs should include these additional diagnoses. This must be clarified on remand. 4. Entitlement to an evaluation in excess of 10 percent for service-connected right leg varicose veins is remanded. The Veteran contends that he is entitled to a higher evaluation because he has stasis of pigmentation, recurrent ulceration, persistent edema, and eczema. See Form 9 (July 2018); Hearing Transcript (February 2021). The Board finds that remand is warranted for a current VA examination. Although the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion of an increase in severity since the last examination. 38 C.F.R. § 3.159; Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Here, the most recent examination took place in 2018. See C&P Exam (February 2018). At the February 2021 Board hearing, the Veteran reported that his symptoms had increased. He stated that he had had surgery on his right leg in January 2020 and that he had been issued a compression machine to help with swelling, as the compression stockings and wrap were not relieving the symptoms. See Hearing Transcript (February 2021). Accordingly, remand is required to obtain a current VA examination that accurately reflects the current severity of the Veteran's right leg varicose veins. 5. Entitlement to a compensable evaluation for service-connected dermatitis of the legs and face with herpes is remanded. The Veteran asserts that he is entitled to a compensable evaluation for his dermatitis as it covers more area than noted in the previous examination. See Form 9 (July 2018); Hearing Transcript (February 2021). The Board finds that remand is warranted to obtain an adequate examination. An examination or opinion is adequate where it is based on consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A 2018 VA examination was conducted. The examiner noted dermatitis of the legs and herpes of the face. See C&P Exam (February 2018). At the Board hearing, the Veteran stated that the examiner did not examine all the areas of his body affected by dermatitis. Rather, the Veteran asserted, the examiner did not examiner the dermatitis located in his groin area. See Hearing Transcript (February 2021). Thus, it is not clear whether the most recent VA examination is an accurate representation of the Veteran's disability. Accordingly, a current examination with clarifying opinion is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for a respiratory disorder, including asthma. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed respiratory disorder. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's respiratory disorder at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease, to specifically include gas and diesel fumes while working as a wheeled vehicle mechanic. Consider the following: the Veteran's lay statements of in-service symptoms and symptoms after service, asthma noted in an undated STR, and VA treatment records documenting asthma in the early 2000s. Consider whether the in-service symptoms at least as likely as not represent the onset of asthma in service and indicate whether such symptoms are more likely than not due to other causesexplain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 2. Schedule the Veteran for a VA examination for lower extremity peripheral neuropathy. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide the following opinions: (a) Whether there is bilateral lower extremity peripheral neuropathy or other neuropathic condition? (b) If so, is the neuropathy at least as likely as not (1) caused or proximately due to service-connected right and left lower extremity varicose veins, or (2) aggravated beyond its natural progression by service-connected right and left lower extremity varicose veins. Provide a rationale that deals with causation and aggravation as independent concepts. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. 3. Provide the Veteran with an appropriate examination to determine the severity of the service-connected right foot heel spurs. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the heel spurs. The relevant Disability Benefits Questionnaire must be utilized. The examiner must determine if there are additional diagnoses that are a progression of, or part and parcel of, the service-connected right foot heel spurs, including osteoarthritis, pes planus, metatarsalgia, hallux valgus, and hammer toes. If so, the examiner must provide an opinion regarding the onset of those disabilities. 4. Provide the Veteran with an appropriate examination to determine the severity of the service-connected right leg varicose veins. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the right leg varicose veins. The relevant Disability Benefits Questionnaire must be utilized. 5. Provide the Veteran with an appropriate examination to determine the severity of the service-connected dermatitis of the legs and face with herpes. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the skin condition. The relevant Disability Benefits Questionnaire must be utilized. The examiner must determine if there is dermatitis in places other than the face and legs, to include the groin area. 6. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page) 7. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.