Citation Nr: 22013680 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 20-01 031 DATE: March 10, 2022 ORDER New and material evidence having been submitted, a claim for service connection for residuals of left leg varicose veins with left leg surgery, also claimed as a varicocele, is reopened. Entitlement to service connection for the residuals of left leg varicose veins with left leg surgery, also claimed as a varicocele, ("left leg disability") is granted. Entitlement to a temporary total disability rating for convalescence related to the left leg, vascular surgery, is denied. FINDINGS OF FACT 1. The claim for service connection for a left leg disability was previously denied in an April 2007 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 2. Evidence associated with the claims file subsequent to a final April 2007 rating decision for service connection for a left leg disability relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The Veteran's left leg disability is related to service. 4. Neither of the Veteran's left leg surgeries, dated in August 2016 or September 2016, necessitated at least one month of convalescence or met the criteria for a temporary total rating in any other manner. CONCLUSIONS OF LAW 1. The April 2007 rating decision, which denied the Veteran's claim of service connection for a left leg disability, became final. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. § 20.1103. 2. Evidence received since a final April 2007 rating decision is new and material; therefore, the Veteran's claim of entitlement to service connection for a left leg disability is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156 (a), 20.1103. 3. The criteria for service connection for a left leg disability are met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.303. 4. The criteria for a temporary total rating for treatment of a service-connected disability requiring convalescence are not met. 38 U.S.C. § 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an October 2021 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. Initially the Board notes the RO developed the claim to be a left leg varicocele claim; however, the Veteran's December 2016 notice of disagreement (NOD) indicated he was seeking service connection for left leg varicose veins and the Veteran confirmed this assertion at the October 2021 Board hearing. As such, the Board has recharacterized the issue. New and Material Evidence VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of left leg varicose veins The Veteran seeks to reopen his claim for service connection for a residuals of left leg varicose veins disability. The Veteran's left leg disability claim was originally denied in an April 2007 rating decision. The rating code sheet indicated the denial was due to a lack of nexus, i.e. the evidence failed to show the current disability was related to service. The evidence of record at the time of the April 2007 rating decision included the service treatment records, military personnel records, VA treatment records, and an October 2006 VA examination for the right leg. The Veteran did not timely appeal the left leg claim, nor did he submit new and material evidence. Therefore, the April 2007 rating decision became final. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2018). The relevant evidence received since the final April 2007 rating decision is detailed below: VA treatment records beginning in June 2016; a July 2018 VA examination for the left leg diagnosing the Veteran with varicosities left leg with recurrent greater saphenous vein incompetency and reflux and providing an etiology opinion; and a June 2020 VA examination providing a left leg etiology opinion. As the above-described evidence includes a diagnosis for varicosities left leg with recurrent greater saphenous vein incompetency and reflux and contains examination reports addressing the question of nexus to service, evidence submitted since the previous rating decision addresses an unestablished fact related to an unproven element of the Veteran's claim for service connection for a psychiatric disability. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both "new," as it has not been previously considered by the VA, and "material," as it raises a reasonable possibility of substantiating the Veteran's service connection claim. Therefore, the claim to reopen is granted. 2. Entitlement to service connection for the residuals of left leg varicose veins 3. Entitlement to a temporary total disability rating for convalescence related to the left leg, vascular surgery The Veteran claims the varicose veins in his left leg are related to service or in the alternative related to his right leg disability. During the October 2021 Board hearing it was asserted that the temporary total disability is warranted for the 2009 and 2016 left leg surgery. For the reasons discussed below, the Board will resolve reasonable doubt in the Veteran's favor and grant service connection for the left leg varicose claim. However, the Veteran is not entitled to a temporary total disability rating as discussed below. Service treatment records (STRs) reflect a March 1971 examination noting the Veteran had moderate left calf varicose veins and mild left varicocele. On the February 1972 separation examination, varicose vein was noted for the right calf only and mild varicocele for the left side was noted. Post service, in January 2016 VA treatment records indicated the Veteran had a left lower extremity great saphenous vein RFA prox to knee and a left lower extremity Trivex phlebectomy, upper thigh procedure. The postoperative diagnosis was left lower extremity varicose veins and venous congestion with reflux. He was discharged the same day with a prescription. At a follow-up appointment a few days later, it was noted the Veteran's post-operative condition was stable. In August 2016 VA treatment records indicated the Veteran had a left radiofrequency ablation of the left thigh vein procedure. He was discharged the same day and given a follow up appointment for a few days later. At the follow up appointment the Veteran did not provide any complaints. In August 2016 Dr. R.B. from a VA Medical Center, submitted correspondence regarding the Veteran's bilateral leg disability. It was noted, the Veteran has a diagnosis of chronic venous insufficiency and symptomatic varicose veins with inflammation of both legs. The procedures for both legs were noted. In November 2009 he had radiofrequency ablation of left great saphenous vein with phlebectomies including 10 to 20 incisions. In January 2016 he had radiofrequency ablation of left thigh vein with phlebectomies including 10 to 20 incisions. In August 2016 he had radiofrequency ablation of the left thigh vein. The doctor found the Veteran's venous disease is bilateral which is common for patients with chronic venous insufficiency. Notably, the doctor indicated the disease may be present at the same time or develop at different rates in either leg as it is the same disease process with the same risk factors for occurrence. In September 2016 VA treatment records a follow up indicated an ultrasound of the left leg was performed and it was noted there were multiple varicosities draining into GSV remnant and a sclerotherapy DPP Minor Surgery will be performed. Subsequently, the same day, a sclerotherapy of left lower extremity secondary varicosities procedure was conducted. Prior to the procedure it was noted the Veteran could ambulate without assistance. The post-operative status was noted as stable. He was discharged the same day. A July 2018 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with varicose veins of the right leg and varicosities left leg with recurrent greater saphenous vein incompetency and reflux. The examiner opined the left leg varicose veins is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. It was reasoned, the two conditions are not medically related as the claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it. It was also noted the medical literature does not support a medical relationship and a nexus has not been established. A June 2020 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. It was opined that it is less likely than not that the Veteran's left varicocele is proximately due to or the result of varicose veins, right leg, postoperative. It was also opined that it is less likely than not that the Veteran's left varicocele is aggravated beyond its natural progression by his service-connected varicose veins, right leg, postoperative. It was reasoned that, upon review of available medical records, it is noted from the Veteran's separation exam that he was found to have mild varicocele on the left. The available medical records discuss varicose veins on his lower extremities but fail to describe the persistence or worsening of a varicocele. Although varicocele is described as "varicose veins of the scrotum" due to the identical nature of its pathophysiology, current medical knowledge does not identify lower extremity varicose veins as a risk factor for varicocele or vice versa. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the evidence is at least in equipoise as to whether the Veteran's left leg varicose veins is related to service. However, a temporary total disability rating for the left leg surgeries is not warranted. In this case the Veteran provided an August 2016 medical note which indicated the Veteran's bilateral leg chronic venous insufficiency and symptomatic varicose veins with inflammation disease may be present at the same time or develop at different rates in either leg as it is the same disease process with the same risk factors for occurrence. To the contrary, the June 2020 VA examiner addressed secondary service connection, however, it was regarding left leg varicole only. Rather than remand for a new VA opinion addressing varicose veins, the Board finds that the evidence has reached the point of relative equipoise. The August 2016 medical note presents an adequate rationale that is at least as persuasive as the VA medical opinion to the contrary. The standard of certainty under VA law is not absolute certainty. The standard is a probability of at least 50 percent. Furthermore, although the March 1971 STRS reflect a finding of moderate left calf varicose veins and mild left varicocele and the Veteran's current disability consist of left leg varicose veins. The February 1972 separation examination did not note left leg varicose veins; however, there was a note for left side mild varicocele which demonstrates enlargement of the veins on the Veteran's left side. Although the Board is granting service connection for the left leg varicose veins, the Board finds that entitlement to a temporary total disability rating for the 2016 left leg surgeries is not warranted. Temporary total ratings are assigned under 38 C.F.R. § 4.30 where treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a) (1), (2), (3). Initially, the Board notes the Veteran is seeking a temporary rating for the November 2009 surgery, however, that surgery is outside of the appeal period. As noted above, the service connection claim for the left leg was previously before the Board and decided in a final April 2007 rating decision. The Veteran submitted a new claim for the left leg in September 2016 and a temporary rating can be granted only for surgeries during the reopen appeal period. As such the Board will only address surgeries conducted during the appeal period. See 38 C.F.R. § 3.400(r). In this case the record reflects surgeries, for the period on appeal, in August 2016, and September 2016. The August 2016 surgery was for a left radiofrequency ablation of the left thigh vein procedure. He was discharged the same day and given a follow up appointment for a few days later where he did not provide any complaints. The September 2016 procedure was a minor surgery due to secondary varicosities and does not appear to be a severe postoperative residual. Furthermore, it was noted the post-operative status was stable and he was discharged the same day. In fact, for all of the surgeries he was discharged the same day with stable follow up appointments days later. Likewise, the record does not indicate the Veteran was immobilized by cast, without surgery, of one major joint or more. The Board acknowledges the October 2021 testimony where the Veteran indicated the surgery did not eliminate the problem. However, the Veteran indicated the problem was eliminated for a while and although he still has issues with his left leg, it's not as bad. This evidence further supports there are no severe residuals of the surgeries. Summarily, the evidence does not show a one-month period of convalescence, severe postoperative residuals, or any of the other criteria for a temporary total rating under 38 C.F.R. § 4.30. Accordingly, the Board finds that the evidence in favor of the claim is in relative equipoise with the evidence against the claim. With resolution of all reasonable doubt in favor of the Veteran, the Board concludes that service connection for left leg varicose disability is warranted. However, a temporary total disability rating for the 2016 left leg surgeries are not warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.