Citation Nr: 22017389 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-28 207A DATE: March 24, 2022 REMANDED Entitlement to service connection for varicose veins, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service from September 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). By way of background, in the June 2012 rating decision, the AOJ denied reopening of the claim because the Veteran had not submitted new and material evidence. The Veteran appealed the denial in December 2012. The Board first considered the appeal in September 2016. It reopened the claim, and it remanded for additional development. When the appeal returned to the Board in October 2018, it denied service connection for varicose veins on the merits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the Veteran vacated the Board's decision, and it remanded the matter to the Board for further proceedings consistent with the JMPR. The Board has since considered the appeal in March 2020, January 2021, and July 2021, and it has remanded it each time for additional development. To frame the issue, the Board will begin with the JMPR. In relevant part, it says: Varicose Veins The Board does not reconcile Appellant's lay statements and the VA examiner's lay statements regarding the onset of Appellant's varicose veins. The Board relied on the February 2017 VA examination and stated the following: The February 2017 VA examiner opined that [Appellant]'s bilateral varicose veins are less likely than not incurred in or caused by his service. The examiner's opinion was supported by rationale, to include that the April 1971 separation medical examiner affirmatively indicated that his vascular system and lower extremities were normal, lay statements from [Appellant] that his varicose veins became prominent in the 1980s, and consideration of [Appellant]'s service history and subsequent treatment. R. at 6. The February 2017 VA examiner acknowledged that Appellant "report[ed] symptoms of varicose veins which became prominent in the 1980's," (R. at 67), which was approximately 9 years after Appellant was discharged from active duty, but the examiner's rationale for the negative nexus opinion, in part, was that post-service medical records first "document this condition more than 35 years after service." R. at 97. The Board does not address the discrepancy between Appellant's lay statements of having varicose veins as early as the 1980's and the VA examiner's rationale that medical records did not show varicose veins until 2008. Remand is warranted for the Board to reconcile Appellant's lay statements as to the onset of his varicose veins with the February 2017 VA examiner's rationale for her opinion, and to discuss whether a new medical opinion is warranted. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate.") In March 2020, the Board remanded for development consistent with the JMPR, to include a VA examination. In June 2020, the AOJ issued a Supplemental Statement of the Case (SSOC). In August 2020, VA examined the Veteran for this claim. In January 2021, the Board remanded the appeal, finding the AOJ had erred by not issuing an SSOC after the August 2020 VA examination. Later that month, the AOJ issued an SSOC. In July 2021, the Board found the development the AOJ had conducted did not comply with the Board's March 2020 Remand directives. It stated: The Board finds that the development conducted after the March 2020 remand is inadequate and that, as such, there has not been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2020 VA examiner wholly failed to address the Veteran's statements regarding the onset and history of his varicose veins and failed to reconcile the opinions with the Veteran's reports, despite being advised that his statements should not be disregarded merely because they are not accompanied by contemporaneous medical evidence. The examiner also failed to provide adequate rationale for any of the opinions provided. Therefore, the Board ordered additional development. As part of this development, the Board ordered a new VA examination. In December 2021, VA examined the Veteran for this claim. The examiner opined on both direct and secondary service connection. As relevant here, for direct service connection, he found a negative causal connection. He opined: Pertinent ENL exam is normal, which indicates presumption of soundness [9/4/1969 ENL exam clinical evaluation marked normal for: vascular system; feet; lower extremities; neurologic. Marked NO to: Cramps in your legs? Foot trouble? Neuritis? (p106ff)]. The Veteran served in infantry indirect fire crewman on active duty from September 1969 to April 1971 per DD 214 (p10). It is acknowledged that SMs are subject to microtrauma that comes over time from training and duty. There are no pertinent STR. Pertinent ETS exam is normal [4/8/1971 ETS exam clinical evaluation marked normal for: vascular system; feet; lower extremities; neurologic. Notes Includes: SINCE MY LAST PHYS MY CONDITION HAS NOT CHANGED. MY CONDITION IS GOOD (p110ff)]. There is no evidence that Veteran had any pertinent treatment on an ongoing basis from active duty to present. There is no evidence that Veteran sought medical attention for condition within a year after separation from active duty. There is no additional evidence to support chronicity and continuity. History in this exam includes, "Veteran served Active-Duty Army from 09/05/1969-04/08/1971. Veteran states he does not recall specific onset of varicose veins; however, he says it was sometime in the 1970s. Initial symptoms were: Veteran states veins were popping in bilateral legs, pain and swelling in bilateral legs.... Veteran says he began having heart issues in 2010. He was advised to have varicose veins checked. In 2011 Veteran states has had vein Ablation in bilateral legs from thigh to lower legs 03/21/2011, and 09/03/2011." 2011 is about 40 years after separation from active duty in 1971, which in my opinion, does not support chronicity and continuity. Reference: 3/21/2011 Piedmont Hospital OPS note includes: Operative dx: venous insufficiency LLE. Procedure: endovenous laser therapy; multiple stab phlebectomies. 9/23/2011 Piedmont Hospital OPS note includes: Procedure: RLE endovenous laser therapy; RLE phlebectomy. Therefore, in consideration of aforementioned narrative, in my opinion, a greater than 50% causal nexus cannot be established between claimed condition and service, which makes RIGHT LOWER EXTREMITY VARICOSE VEINS LESS LIKELY THAN NOT (less than 50 percent probability) INCURRED IN OR CAUSED BY THE CLAIMED IN-SERVICE INJURY, EVENT, OR ILLNESS. In a February 2022 Informal Hearing Presentation, the Veteran's representative argued that the December 2021 examiner used the wrong evidentiary standard for the nexus opinion for direct service connection. He therefore advocated that the Board remand for an addendum opinion. The Board finds the December 2021 VA examiner's opinion is inadequate. It has the same problem the Board identified in the August 2020 VA examiner's opinion, and the same problem the parties identified in the JMPR vis-à-vis the February 2017 VA examiner's opinion. That is, all three VA examiner opinions summarily dismissed the Veteran's lay statements regarding the first manifestation of his varicose veins. In this regard, the Board notes the Veteran has inconsistently reported the first manifestation of his varicose veins. He reported manifestation as of "the 1980s, "1976," and "sometime in the 1970s" to the 2017, 2020, and 2021 VA examiners, respectively. Notwithstanding this lack of specificity, the Board observes that the Veteran has consistently reported that his varicose veins first manifested after service. As such, the question that must be answered is whether there was a disease, injury, or event in service which caused the post-service varicose veins. Therefore, the Board will remand for the AOJ to request this information from the Veteran. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the disease, injury, or event that he contends caused him to develop varicose veins post service. 2. Obtain an addendum opinion from the medical professional who examined the Veteran in December 2021, or another qualified examiner if unavailable. The need for another examination is left to the discretion of the examiner. That examiner must review the claims file to include this Remand. The must answer the following: a) Has the Veteran identified a disease, injury, or event that occurred during his service that he contends caused him to develop varicose veins post service? If yes, identify all responses. b) If the Veteran has NOT identified a disease, injury, or event that occurred during his service that he contends caused him to develop varicose veins post service, can you identify a disease, injury, or event that could have caused him to develop varicose veins post service? c) If the answer to (b) is yes, is it at least as likely as not (50 percent probability) that the disease, injury, or event in (b) caused the Veteran to develop varicose veins post service? Why or why not? In answering these questions, you are reminded that your prior findings, as well as those of the 2017 and 2020 VA examiners, disregarded the Veteran's lay statements regarding the onset of his varicose veins. The questions posed above are the Board's recognition that the Veteran's varicose veins manifested earlier than any VA examiner acknowledged. That said, because they manifested post service, the questions posed above are the ones the Board must answer before it can adjudicate this claim. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.