Citation Nr: 21011932 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-44 479 DATE: March 3, 2021 REMANDED Entitlement to service connection for varicose veins of the left lower leg, to include whether new and material evidence has been received to reopen the claim, is remanded. Entitlement to service connection for varicose veins of the right lower leg, to include whether new and material evidence has been received to reopen the claim, is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Army from September 1953 to November 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in June 2017 and June 2020. The case has been returned to the Board for further appellate review. Entitlement to service connection for varicose veins of the left and right lower legs, to include whether new and material evidence has been received to reopen the claim, is remanded. Again, there has not been substantial compliance with the Board’s remand directives, and another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The prior Board remand directed the RO to make a formal finding indicating what evidence was relied upon in determining that a November 1957 rating decision initially denied service connection for varicose veins of the bilateral lower extremities, as there does not appear to be any evidence related to a November 1957 rating decision currently associated with the claims file. The Board also directed readjudication of the Veteran’s request to reopen the service connection claim with specific discussion of why the Veteran’s competent lay statements regarding the presence of varicose veins may or may not establish a previously unestablished element necessary to reopen his claims. As noted in both the June 2017 and June 2020 Board remands, the Board finds it necessary to seek clarification regarding the November 1957 rating decision because it must assess the basis for the prior denial. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The RO did not associate with the claims file any formal finding regarding a November 1957 rating decision, and instead requested the Veteran’s VA treatment records from 1957 to 2001. Likewise, in the January 2021 supplemental statement of the case, the RO did not engage in any discussion regarding the Veteran’s lay statements, noting only that the evidence of record failed to show a nexus between the current disability and military service. The unavailability of the November 1957 rating decision, if the reference to this rating decision was not in error, continues to frustrate appellate review of these claims. As such, the case is being returned to the RO for a detailed explanation as to what evidence was relied upon in its January 2013 determination that a November 1957 rating decision initially denied service connection for varicose veins. The matters are REMANDED for the following action: 1. Associate a formal finding with the claims file indicating what evidence was relied upon in the determination that a November 1957 rating decision initially denied service connection for varicose veins affecting the bilateral lower extremities, as there does not appear to be any evidence related to a November 1957 rating decision currently associated with the claims file. 2. If there is no documentation regarding the November 1957 rating decision, OR if prior references to this decision were in error, readjudicate the Veteran’s request to reopen his service connection claims for varicose veins affecting the bilateral lower extremities based on the evidence currently associated with the claims file, to include the September 1977, December 1989, September 1990, and February 1993 rating decisions, noting 38 C.F.R. § 3.156 does not require new and material evidence as to each previously unproven element of a claim. It should be noted that in Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court of Appeals for Veterans Claims specifically held the varicose veins is a condition that is capable of lay observation; therefore, there MUST be an explicit discussion of why the Veteran’s lay statements may or may not establish a previously unestablished element necessary to reopen his claims, given that he is competent to report the presence of varicose veins. If readjudication of the merits of the Veteran’s underlying claims is warranted, there must be an explicit finding of why such readjudication is warranted, such as reopening due to the receipt of new and material evidence, reconsideration due to the receipt of previously unconsidered service records, or any other basis deemed appropriate. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.