Citation Nr: 22046232 Decision Date: 08/16/22 Archive Date: 08/15/22 DOCKET NO. 19-00 147 DATE: August 16, 2022 ORDER Entitlement to an earlier effective date for service connection for left foot 2nd metatarsal fracture is denied. Entitlement to service connection for left lower extremity varicose veins is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for left foot 2nd metatarsal is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. The Veteran submitted an original claim on June 2, 2014 which resulted in the grant of service connection for left foot 2nd metatarsal fracture. 2. An effective date of June 2, 2013 was assigned for the grant of service connection for left foot 2nd metatarsal fracture through application of Public Law 112-154, Section 506, 126 Stat. 1165. 3. Resolving reasonable doubt in the Veteran's favor, his left lower extremity varicose veins disability is at least as likely as not related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date for service connection for left foot 2nd metatarsal fracture have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to service connection for left lower extremity varicose veins have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1978 to December 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal of a April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Effective Date An award of service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A formal claim is a specific claim in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Also, any communication or action indicating the intent to apply for a benefit under the laws administered by the VA may be considered an informal claim, provided that it identifies generally, although not necessarily with specificity, the benefit sought. 38 C.F.R. §§ 3.1(p), 3.155. The term "date entitlement arose" is not defined in the current statute or regulation. However, the United States Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a). Under the provisions of Public Law No. 112-154, Section 506, now codified at 38 U.S.C. § 5010, an effective date for an original application may be backed up for one year prior to the receipt of the application, providing other pertinent conditions are met. See 38 U.S.C. § 5010. 1. Entitlement to an earlier effective date for service connection for left foot 2nd metatarsal fracture The Veteran does not contend that he tried to submit a claim prior to 2013. See May 2022 Hearing Transcript. In the October 2018 rating decision, the Veteran was awarded an earlier effective date of June 2, 2013. The record reveals that the Veteran submitted a fully developed claim which was received by VA on June 2, 2014, which included the claim for service connection for a left foot 2nd metatarsal fracture disability. The Veteran was awarded service connection for left foot 2nd metatarsal fracture from June 2, 2013, which was one year prior to the date the Veteran's application form was received. He was informed that this effective date was awarded pursuant to Section 506 of Public Law 112-154. Those provisions, now codified at 38 U.S.C. § 5010, provide for a one-year retroactive award from the date of the receipt of the application. Thus, the date of June 2, 2013 is properly assigned. Accordingly, the Veteran is not entitled to an effective date of prior to June 2, 2013. 2. Entitlement to service connection for left lower extremity varicose veins The Veteran contends his left lower extremity varicose veins condition was misdiagnosed during service. He contends that that his varicose vein condition started right after his fracture to his left foot. In May 2022, the Veteran testified at a Board hearing. The Veteran testified that he was misdiagnosed during service for his varicose veins condition. He went to see a doctor, but because it was a Friday, he did not see a doctor but instead a Corpsman. He did not see a doctor until the following week, and his foot continued to swell, and became the size of the Veteran's thigh, and he feels it did a lot of damage to the Veteran's leg. The Veteran testified that the varicose veins started right after his fracture. The Veteran testified that he took a lot of time off when he worked as a technician for the airlines due to his foot. He would use his vacation time for convalescing, but never took any sick time. The Veteran was terminated in May 2019. He used to drive around the hanger in a golf cart, and on bad days he would take days off. After the Veteran had an operation for his veins it took several months to recover. He would have four-day weekends and would take that and then three or four more days of vacation to recuperate from the surgeries. The Veteran's representative contends that the Veteran's residuals should be rated as severe instead of moderately severe due to the extensive damage that was associated with that fracture, and the fact that the pain from the varicose veins and the pain from the foot seem to be intertwined together, and the Veteran missed so many days of work. The Veteran testified that he had varicose veins treated in both legs, but there were only a couple of them on his right leg, and his entire left leg needed to be treated. The Veteran testified he can still ride a bike, but he cannot run around, and as the day progresses his foot swells, and he wears a compression sock. The Board concludes that the Veteran has a current disability that began during active service or is related to the Veteran's left foot fracture. 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). VA and private treatment records show the Veteran has a current diagnosis of left lower extremity varicose veins. During service, the Veteran was seen for complaints for his left foot/leg, although no diagnosis of left lower extremity varicose veins was made during service. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. In March 2015, VA secured a medical opinion regarding the Veteran's left foot condition. The examiner opined that the Veteran's left foot 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 provided a rationale, but the Board is not clear which specific injury or condition the examiner is discussing when determining, "the Veteran's left foot condition is less likely than not the result of the claimed condition," as the Veteran had multiple diagnoses. The examiner stated that the left foot condition was most likely due to his varicose vein condition. In August 2015, the Veteran's private treatment provider indicated the Veteran had marked venous insufficiency with lower extremity edema greater than on the right side. The examiner noted that the chronic swelling could account for most of the pain in the left extremity. The examiner opined that the injury the Veteran sustained is more likely than not related to the injury that he sustained in 1979 as he has no other histories of injuries to the foot or ankle to lower extremity. In October 2015, the Veteran's private treatment provider indicated one may speculate that the Veteran's ankle trauma and prescribed immobility resulted in deep or superficial venous thrombosis, and he subsequently developed a post-thrombotic syndrome. The examiner continued by stating the current venous symptoms are isolated to the side of the injury. "While this cannot be proven, the causality is quite reasonable." In December 2015, the Veteran was afforded a VA examination for his feet. The examiner noted that the examination was for the Veteran's service-connected fracture second metatarsal left foot and claimed varicose veins, in his left leg. In 1979 the Veteran fractured his left foot second metatarsal after a traumatic landing skydiving. The Veteran reported that the swelling in his left foot has gotten worse over the years. The Veteran reported seeking treatment since 2004-2006 and afterward by private doctors. The examiner noted that this was 25 years after service. The examiner opined that there is no evidence that the Veteran suffered any insult to his venous or arterial circulation in 1979, other than speculation. The examiner indicated that the left foot pain impresses him as more orthopedic than vascular. The examiner noted that the Veteran had painful edema, and it should not be from the remote fracture at this time. The examiner explained he thought the edema was a separate unrelated condition. The examiner provided negative nexus opinions relying on the passage of time of no objective evidence of treatment and the Veteran did not have a history of a DVT. The examiner however, noted, that the Veteran's varicose veins were worse on the Veteran's left leg. In November 2018, the Veteran's private treatment provider submitted a letter on the Veteran's behalf. The examiner thoroughly discussed the Veteran's condition. The examiner opined that it is commonly accepted in the literature that damage to the valvular structure of the veins whether from infection and chronic swelling or simply chronic post traumatic swelling leads to damage of the valves rendering them susceptible to further symptoms and pathology at a later date. The examiner explained that just as the trauma might be sustained to a joint in combat or football that trauma damages the joint and allows for accelerated osteoarthritis at a later date. The examiner concluded that the Veteran's left varicose veins condition is related to active military service. The Board notes there is an April 2020 DBQ foot examination, but this examination does not provide a medical opinion. The Board finds that the Veteran's private treatment providers medical opinions to be persuasive because the examiner thoroughly went through the Veteran's disability from the onset. The Board acknowledges that while the Veteran did not cite the specific research study he relied upon, he adequately explained the findings of each of the research studies. The Board finds that the private examiner's opinions to be more probative because the explanations given are plausible, while the VA examiners relied on the absence of evidence and passage of time versus providing an adequate alternate etiology of the Veteran's current symptoms. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current left varicose veins disability arose in or is related to] service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a left varicose vein disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for left foot 2nd metatarsal is remanded. The Veteran seeks a higher disability rating for his service-connected left foot 2nd metatarsal disability. In the May 2022 Board hearing, the Veteran's representative contends that the Veteran's residuals should be rated as severe instead of moderately severe due to the extensive damage that was associated with that fracture, and the fact that the pain from the varicose veins and the pain from the foot seem to be intertwined together. The Veteran testified he can still ride a bike, but he cannot run around, and as the day progresses his foot will swell, and he wears a compression sock. The Board finds a VA examination is necessary to determine the severity of the Veteran's current left foot 2nd metatarsal disability. After reviewing the December 2015 VA examination, the Board is not clear which symptoms are related to the Veteran's left foot 2nd metatarsal disability, and which symptoms are due to the Veteran's newly awarded left varicose veins disability. The Board notes there is an April 2020 DBQ foot examination, but this examination does not provide the necessary details required to determine the severity of the Veteran's left foot disability. The Veteran contends that over the years his disability has worsened, and thus a comprehensive examination is warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran testified that he missed work due to his foot disabilities and was later terminated. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU rating is part of an appeal for a higher rating claim when such claim is raised by the record. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of the Veteran's foot/leg conditions. The examiner should perform all necessary tests. 2. The examiner should determine whether the Veteran's neuropathy and (any other diagnosis discovered during the examination in #1) is at least as likely as not (50 percent or greater probability) (1) proximately due to the Veteran's service-connected disabilities, (2) aggravated beyond its natural progression by the Veteran's service-connected disabilities. The examiner must distinguish which symptoms are related to each diagnosis/disability. If the symptoms overlap, the examiner should assign weight and a clear explanation. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 3. Develop and adjudicate the Veteran's claim for entitlement to TDIU under the provisions of 38 C.F.R. § 4.16 and Rice v. Shinseki, 22 Vet. App. 447 (2009). 4. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate 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.