BVA9507385 DOCKET NO. 93-10 512 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for service-connected left leg varicose veins, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for right leg varicose veins, based upon new and material evidence. 3. Entitlement to service connection for blood poisoning. 4. Entitlement to service connection for a right hydrocele. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from November 1942 to March 1946. This appeal arises from a June 1991 Department of Veterans Affairs Regional Office, St. Petersburg, Florida (VARO) rating decision which denied the appellant service connection for blood poisoning and a right hydrocele, and denied reopening the appellant's claim for service connection for varicose veins of the right leg on the basis that new and material evidence sufficient to warrant reopening of his claim had not been submitted; and a July 1992 VARO rating decision which denied the appellant an increased rating for his service-connected left leg varicose veins, currently evaluated as 20 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL In essence, the appellant contends that manifestations of his service-connected left leg varicose veins, currently evaluated as 20 percent disabling, are of sufficient severity to warrant an increased rating. He also contends that he is entitled to service connection for a right hydrocele, blood poisoning and right leg varicose veins. Implicit in the appellant's claim for service connection for right leg varicose veins is the contention that, since VARO's April 1952 rating decision, he has submitted new and material evidence which is sufficient to allow the Board to reopen and review his claim of service connection for right leg varicose veins. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. For the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an increased rating for the appellant's service-connected left leg varicose veins; entitlement to service connection for a right hydrocele and blood poisoning; and a finding of sufficient evidence to warrant reopening of the appellant's claim for service connection for right leg varicose veins. FINDINGS OF FACT 1. The appellant served on active duty from November 1942 to March 1946. 2. Current manifestations of the appellant's service-connected left leg varicose veins include some pain, decreased pulses, minimal varicosities of the left upper leg and left calf. 3. The appellant does not have a right hydrocele. 4. The appellant's blood poisoning during service was acute and transitory. 5. In April 1952, a VARO rating decision denied the appellant service connection for right leg varicose veins; following proper notice, the appellant did not file a timely appeal. 6. Evidence submitted by the appellant in support of his claim since VARO's April 1952 decision includes, February 1961, August 1962, June 1976, April 1990 and March 1992 VA examination reports; a November 1962 statement from the appellant's private physician, Morris B. Clark, M.D.; VA outpatient treatment records dated from March 1976 to April 1991; and private medical treatment records from Mease Countryside dated from September 1986 to November 1991. CONCLUSIONS OF LAW 1. The manifestations of the appellant's service-connected left leg varicose veins are no more than 20 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7120 (1994). 2. The appellant does not suffer from a right hydrocele that was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110 (West 1991); 38 C.F.R. §§ 3.303 (1994). 3. The appellant does not suffer from blood poisoning that was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110 (West 1991); 38 C.F.R. §§ 3.303 (1994). 4. The April 1952 decision by VARO is final as to the denial of service connection for right leg varicose veins; evidence received in support of the appellant's March 1991 request to reopen his claim is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this appeal, the appellant is seeking an increased rating for his service-connected left leg varicose veins, currently evaluated as 20 percent disabling, and service-connection for a right hydrocele and blood poisoning. Finally, the appellant is claiming service connection for right leg varicose veins, on the basis that new and material evidence sufficient to warrant reopening of his claim has been submitted. Initially, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded." 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is also clear that the appellant's claim has been adequately developed for appellate review purposes by VARO, and the Board may therefore proceed to disposition of the matter. In evaluating the appellant's request for an increased rating, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282 at 287 (1991). Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (1994) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (1994) requires that medical reports be interpreted in light of the whole recorded history. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The schedular criteria for varicose veins calls for a 20 percent disability rating for unilateral, moderately severe varicose veins, involving superficial veins above and below the knee, with varicosities of the long saphenous ranging in size from 1 to 2 cm. in diameter, with symptoms of pain or cramping on exertion and no involvement of the deep circulation; a 40 percent evaluation is warranted for unilateral, severe varicose veins, involving superficial veins above and below the knee, with involvement of the long saphenous, ranging over 2 cm. in diameter, marked distortion and sacculation, with edema, episodes of ulceration and no involvement of the deep circulation; and a 50 percent evaluation is warranted for unilateral, pronounced varicose veins, with the finding of a severe condition with secondary involvement of the deep circulation, as demonstrated by Trendelenburg's and Perthes' tests, with ulceration and pigmentation. 38 C.F.R. § 4.104, Diagnostic Code 7120 (1994). It must be noted that the terms "moderate" and "severe" are not defined in VA regulations. Rather than applying an inflexible formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. §§ 4.6 (1994). It should also be noted that the use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). The appellant is also seeking service connection for a right hydrocele and blood poisoning. Under pertinent law and VA regulations, service connection may be granted if a right hydrocele or blood poisoning was incurred or aggravated during service or is found to be proximately due to or the result of a service-connected disorder. 38 U.S.C.A. §§ 1101, 1110, (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1994). It is not necessary to have a diagnosis of a particular disability during service, but it is necessary to have manifestations sufficient to establish that a disability was present. 38 C.F.R. § 3.303(d) (1993). Finally, the appellant is seeking service connection for right leg varicose veins on the basis that he has submitted new and material evidence sufficient to warrant the reopening of his claim. Before discussing the appellant's claim, the Board believes that an overview of his medical history is in order. Medical history March 1943 service medical records reveal that the appellant was treated for a congenital right hydrocele and a congenital right inguinal hernia. An April 1943 military hospital summary reported that a successful hydrocelectomy and hernioplasty were performed. A February 1946 military hospital summary reported that the appellant was treated for chronic, moderate, furunculosis of both buttocks of an undetermined cause. General surgery was performed to remove boils. The examiner noted a previous surgery for hernia with good results. He observed large varicose veins on the appellant's left leg in the popliteal area and coming over the knee. The appellant's skin was clear, except for his left buttocks, where there were several healing abscesses. The appellant's March 1946 military separation examination reported a history of herniotomy and blood poisoning. No present physical defects were observed. Moderately severe varicose veins on the left were noted. A VA physical examination was conducted in February 1948. The appellant complained that his left leg tired easily and that his ankle swelled a little. Upon physical examination, the examiner observed a well-healed, right inguinal hernioplasty scar. He also observed severe varicosities in the left popliteal space and about the left knee, and noted that the incompetency was apparently in the lesser saphenous vein. The examiner diagnosed minimal, multiple scars as residuals of multiple boils on the appellant's left thigh and left leg; a right herniorrhaphy scar; and severe, symptomatic, varicose veins on the left knee. A March 1952 VA hospital summary reported that the appellant was admitted for complaints of varicose veins. He claimed that his feet began to swell and ache during the afternoon, following his military discharge. A high and low saphenous vein ligation was performed on the left leg. The examiner noted one small varicosity on the right calf. His final diagnosis was bilateral varicose veins, improved with treatment. A VA examination was conducted in February 1961. The appellant complained that his left leg swelled if he stood all day. The examiner observed that varicose veins were not visible bilaterally. He noted 3, healed, 1 inch, post-operative scars on the appellant's "left" leg and moderate, deep circulation. He observed a "healed" right inguinal hernia scar and a "healed", "nonsymptomatic" hydrocele scar. An August 1962 VA examination reported that the appellant continued to complain that his left leg swelled and went to sleep if he remained immobile. The examiner reported that the appellant's left leg failed to reveal any varicosities, but noted healed, non-tender post operative scars. A November 1962 statement from the appellant's private physician, Morris B. Clark, M.D., was submitted. Dr. Clark reported that the appellant had no varicosities and no edema. He reported that a growth of bone over the inner aspect of the lower end of the femur on the left leg was observed, and that the left leg was 1 inch larger in circumference than the right. He did not know the cause of the "growth." The appellant had full range of motion with some instability. VA outpatient treatment records dated from March 1976 to April 1976 reported that the appellant complained of periodic weakness and numbness in his legs. The examiner reported that the appellant's feet were warm and dry with few signs of edema. Pedal pulses were normal. The examiner recommended that the appellant be evaluated for diabetes. A June 1976 VA examination reported that the appellant complained of cramps in his left foot and "tingling" sensations in both legs. He denied leg ulcers and reported that he wore support hose on both legs. The examiner observed well-healed ligation scars on the left leg. There was no swelling. He noted a conglomerate of small dilated veins below both left malleoli with some redness, but no tenderness of the left ankle. There was a patch of brownish discoloration of the lateral left ankle; 3 scattered patches of conglomerate venules of the left leg. No deep venous incompetency was observed. The left pulses were faintly palpable. Several varicosities of the right leg were also noted. VA outpatient treatment records dated from July 1986 to April 1989 were submitted. The appellant was treated for varicose veins; an atrial flutter; congestive heart failure; obesity; degenerative joint disease of the knees, hips and shoulders; and pharyngitis. A June 1987 medical treatment entry reported that the appellant complained of pain in his right groin for 5 days while "lifting and working." No bulging was observed. There was reproduction of pain with deep palpation above the inguinal ring. The examiner's impression was varicocele versus epidymidis and he prescribed medication. The appellant continued to complain of pain in his right groin, hip and thigh. He denied further pain in his testicle. The examiner assessed probable lumbar/sacral pain - ligamentous. The appellant had no further complaints at his follow-up appointment in September 1987. A VA examination was conducted in April 1990. The appellant complained that his ankles swelled at night and that he had pain in his left lower leg with claudication. He claimed that he could only walk one block before he had to rest. The examiner observed minimal varicosities on the medial surface of the left upper leg. The left lower leg was dry and scaly. Pulses in his left leg were decreased. His right leg also showed evidence of minimal stasis dermatitis with minimal varicosities. The examiner diagnosed varicosities of the left lower leg; stasis dermatitis, of both lower legs; minimal varicosities of the right lower leg; and peripheral obstructive vascular disease. VA outpatient treatment records dated from March 1989 to April 1991 reported that the appellant continued to receive medication and treatment for varicose veins. Private medical treatment records from Mease Hospital, dated from September 1986 to March 1992 were submitted. The appellant was treated for atrial fibrillation, congestive heart failure, and degenerative arthritis. A January 1989 echocardiogram revealed severe left ventricular dysfunction. An electromyography examination was conducted after the appellant complained of numbness and tingling down both arms, which was within normal limits. October 1990 x-rays of the appellant's feet and right ankle revealed hypertrophic spurring of the navicular bone, soft tissue swelling of the right ankle, and arthritic changes of the left foot. Hip x-rays revealed degenerative arthritis of the right hip. An October 1988 letter from, G.M., an underwriter for Prudential Insurance, reported that the appellant was denied life insurance due to his "build, history of glucose intolerance, chronic obstructive pulmonary disease and a circulatory disorder." At his January 1992 hearing on appeal, the appellant testified that he had pain in his legs, similar to that of a toothache, due to his varicose veins. He also claimed that he had a continual dull ache in his right scrotum due to a right hydrocele. He testified that the right hydrocele was not removed during service and that he had only sought medical treatment 2 or 3 times since service. He claimed that he had blood poisoning during service as a result of boils and carbuncles which were removed, with no effects after service. However, he stated that his right foot ulceration "could be a return of that condition." He testified that he reported problems with his right leg at the time of his military separation examination, but was told that the varicose veins in his right leg were not severe enough. He claimed that he did not receive treatment for the right leg for years after service. A VA examination was conducted in March 1992. The examiner observed post-operative vein stripping of the left leg with several horizontal incisions in the groin and calf area. The appellant had some varicose veins of both calves, which were "not too large" and negative Perthes and Trendelenburg tests. No hernia or hydrocele was found on examination. The examiner noted that the right lobe of the prostate appeared slightly hypertrophied. The examiner made the following diagnoses: 1. Tinea cruris and tinea pedis. 2. Herniated disc lumbar spine with cervical and lumbar arthritis. 3. Varicose veins bilateral, calves with post operative stripping, left. 4. Scar right ankle area. 5. Post operative inguinal hernia, right. 6. Hydrocele not found. 7. Defective hearing. 8. Defective vision. 9. Olecranon bursitis, right elbow. 10. Arteriosclerotic heart disease with cardiac arrhythmia. 11. Pes planus bilateral with medial bulging and achilles tendon bowing. 12. COPD 1. Entitlement to an increased rating for a service-connected left leg varicose veins, currently evaluated as 20 percent disabling. After having carefully reviewed all of the medical records and evaluated all of the evidence, the Board is of the opinion that current manifestations of the appellant's left leg varicose veins, which include some pain, decreased pulses, minimal varicosities of the left upper leg and left calf, with negative Perthes and Trendelenburg tests, approximate the level of severity which calls for a 20 percent disability rating. 38 C.F.R. § 4.104, Diagnostic Codes 7120 (1994). The Board bases this conclusion on all the evidence of record, with emphasis upon the appellant's April 1990 and most recent March 1992 VA examinations, which reported pain, minimal varicosities and decreased pulses, but did not indicate evidence of long saphenous varicosities over 2 cm. in diameter with marked distortion and sacculation with edema required for a 40 percent disability rating. The symptomatology demonstrated is no more than moderately severe. 38 C.F.R. § 4.104, Diagnostic Code 7120 (1994). The preponderance of the evidence is against the appellant's claim for an increased rating for service-connected left leg varicosities. In exceptional cases where the evaluations provided by the rating schedule are found to be inadequate, an extra-schedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b) (1994). However, the regular schedular standards applied in the current case adequately describe and provide for the appellant's condition. The Board, therefore, does not find any other unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization for this disability, that would warrant the application of an extra- schedular rating. 2. Entitlement to service-connection for a right hydrocele. The Board finds that the objective medical evidence does not substantiate that the appellant currently has a right hydrocele. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). In so finding, we place emphasis on the appellant's March 1992 VA examination which was negative for a diagnosis of a right hydrocele; and service medical records which indicated a successful surgical procedure to correct a right hydrocele during service; and the lack of objective medical evidence of regular or continuous treatment from the last complaint in service during April 1943 to June 1987, forty four years later, when the appellant complained of groin pain, assessed as probable, ligamentous lumbar/sacral pain. The Board has considered the written statements and testimony by the appellant claiming a right hydrocele since service based upon his subjective claims of groin pain. However, the Board finds that those statements have less probative value than the objective medical records during and after service. As the appellant is a layman, his contentions are not probative as he is not competent to provide a medical diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As mentioned, service medical records indicated a successful hydrocelectomy during service and were negative for a hydrocele at the time of separation. Likewise, from the time of the appellant's discharge from service in March 1946 to the present, there are no records indicating the existence of a right hydrocele. Therefore, it is the opinion of the Board that the appellant does not currently suffer from a right hydrocele, including residuals thereof, and service connection for a right hydrocele is not warranted. 3. Entitlement to service connection for blood poisoning. Likewise, the Board finds that the objective medical evidence does not substantiate that the appellant currently suffers from blood poisoning. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Although the Board concedes that appellant was treated for blood poisoning during service based upon the reference to blood poisoning in his March 1946 separation examination report, the Board finds that his condition was acute and transitory. In so finding, the Board places emphasis on the appellant's March 1993 VA examination which was negative for a diagnosis of blood poisoning; the lack of objective medical evidence of regular or continuous treatment from the appellant's separation from service in March 1946 to the present; and the appellant's January 1992 testimony on appeal, claiming no effects after service. The Board has considered the written statements and testimony by the appellant claiming an etiological relationship between his blood poisoning in service and his current circulatory or vascular disorders. However, the Board finds that those statements have less probative value than the objective medical records during and after service. As the appellant is a layman, his contentions are not probative as he is not competent to provide a medical diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As mentioned, service medical records were negative for blood poisoning at the time of separation, and from the time of the appellant's discharge from service in March 1946 to the present, there are no records pertaining to complaints or treatment for blood poisoning. "[W]hen the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303(b) (1994). There is also no medical evidence to indicate a relationship between the appellant's currently diagnosed circulatory disorders and blood poisoning during service. The preponderance of the evidence is against the appellant's claim for service connection for blood poisoning. Therefore, it is the opinion of the Board that the appellant does not currently suffer from blood poisoning, and service connection for blood poisoning is not warranted. 4. Entitlement to a service connection for right leg varicose veins based upon new and material evidence. The appellant is seeking service connection for right leg varicose veins. As was indicated in the Introduction above, the appellant's claim for service connection for right leg varicose veins was the subject of an unfavorable VARO rating decision in April 1952. The appellant was duly notified of that decision and of his appellate rights by letter, but he did not file an appeal. The decision of VARO is considered to be final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1994). Under pertinent law and regulations, as interpreted by the United States Court of Veterans Appeals, the VA may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994); and Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means evidence which is not merely cumulative or redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "Material" evidence is evidence which is relevant and probative of the issue at hand and which, furthermore, leads to a reasonable possibility that the new evidence, when viewed in the context of all of the evidence of record, would change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178 (1991). At the time of VARO's April 1952 denial of the appellant's claim for service connection for right leg varicose veins, evidence of record included the appellant's service medical records; a February 1948 VA examination report; and a March 1952 VA hospital summary. Evidence submitted subsequent to VARO's April 1952 decision consists of February 1961, August 1962, June 1976, April 1990 and March 1992 VA examination reports; a November 1962 statement from the appellant's private physician Morris B. Clark, M.D.; VA outpatient treatment records dated from March 1976 to April 1991; and private medical treatment records from Mease Countryside dated from September 1986 to November 1991. The additional evidence is clearly "new", in that it was not of record at the time of VARO's April 1952 denial of the appellant's claim. However, it is not "material" in that it does not shed any light on the claimed service-related right leg varicose vein condition; it provides no linkage to service, and it is relevant only as to the state of the disability many years remote from the appellant's period of service. The recently furnished medical evidence provides added detail concerning the post service condition of the appellant's right leg, but it is not probative of the issue at hand. This recently submitted evidence is merely cumulative of evidence of record previously, and it does not tend to suggest that the appellant incurred right leg varicose veins during service. The additional statements by the appellant, relating his right leg varicose veins to service, are only redundant of statements previously of record, and as such, they are cumulative because they essentially reiterate earlier assertions. See Reid v. Derwinski, 2 Vet.App. 312, 315 (1992). His additional statements are also not material, as, being a layman, he has no competence to render a medical opinion regarding the etiology of his condition. See Moray v. Brown, 5 Vet.App. 211 (1993); See also, Espiritu v. Derwinski, 2 Vet.App. 609 (1992). As new and material evidence has not been submitted, the claim is not reopened, and the April 1952 VARO decision remains final. Further analysis of this case must cease. Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). ORDER An increased disability rating for the appellant's service- connected left leg varicose veins is denied. Service connection for a right hydrocele is denied. Service connection for blood poisoning is denied. New and material evidence sufficient to reopen a claim for entitlement to service connection for a right leg varicose veins having not been submitted, the appeal is denied. C. P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.