754 F.Supp.2d 829 (2010)
Noel BUTCHER
v.
SUPERIOR OFFSHORE INTERNATIONAL, LLC.
Civil Action No. 07-8136.
United States District Court, E.D. Louisiana.
November 1, 2010.
*831 Thomas Carey Wicker, III, Capitelli & Wicker, New Orleans, LA, for Plaintiff.
Robert Seth Reich, Lawrence R. Plunkett, Jr., Reich, Album & Plunkett, LLC, Metairie, LA, for Plaintiff/Defendant.
Rufus C. Harris, III, Alfred Jackson Rufty, III, Cindy Galpin Martin, Jill Schultz Willhoft, Harris & Rufty, LLC, Lisa M. Africk, Brown Sims, PC, New Orleans, LA, Thomas A. Porteous, Chouest Law Firm, Metairie, LA, John H. Hughes, Allen & Gooch, Lafayette, LA, for Defendant.

ORDER AND REASONS
SARAH S. VANCE, District Judge.
Before the Court is third-party defendant Marlin Energy LLC's motion for summary judgment that Triumph Energy LLC is not entitled to indemnification or to be named as an additional insured for first-party plaintiff Noel Butcher's alleged injuries.[1] Because Triumph has failed to create a genuine issue of material fact as to whether Butcher's employer, Superior Offshore International, LLC, was a "representative" of Marlin's, or as to whether Butcher was Marlin's "borrowed employee," Marlin's motion is GRANTED.

I. BACKGROUND
On June 7, 2004, Marlin entered into a Master Time Charter Agreement (MCA) with Gulf Offshore Logistics, LLC under which Marlin would, from time to time, charter vessels from Gulf Offshore.[2] Under the MCA, Gulf Offshore is defined as "Owner" and Marlin is defined as "Charterer."[3] With regard to Marlin's indemnification of Gulf Offshore, the MCA provides:
NEITHER OWNER ... THE VESSEL, HER OWNERS, OPERATORS, MASTER, AND CREW ... SHALL HAVE ANY RESPONSIBILITY OR LIABILITY ... FOR ANY INJURY... OF ANY EMPLOYEES OF CHARTERER, ITS SUBCONTRACTORS, OR THEIR EMPLOYEES OR AGENTS ITS REPRESENTATIVES, AND CHARTERER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS OWNER, ... THE VESSEL, [and] ITS OWNERS ... FROM AND AGAINST ANY SUCH CLAIM... WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR FAULTS OF INDEMNITIES, OR BY UNSEAWORTHINESS OF THE VESSEL OR EQUIPMENT OF OWNER, OWNER'S PROPERTY OR OWNER'S SUBCONTRACTORS' PROPERTY....[4]
*832 The MCA also includes a provision requiring Marlin to maintain various forms of insurance.[5] For the policies on "All Risks Cargo" and "Equipment Insurance" and "Contractual Liability Insurance," Marlin was required to name "Owner, the vessel, its owners, master, and crew, and their respective underwriters as Additional Assureds and shall Waive Subrogation against such Additional Assureds, but such naming and waiving shall only apply with respect to the Indemnities, obligations, and risks assumed by Charterer in this Agreement."[6]
In connection with sandblasting work to be performed on one of Marlin's oil platforms, Marlin chartered a vessel, the L/B MAGGIE, from Gulf Offshore Logistics pursuant to the MCA.[7] Though the MCA describes Gulf Offshore as the "Owner," the L/B MAGGIE is, in fact, owned by Triumph Marine, Inc.[8]
On September 14, 2004, Marlin entered into a Master Service Agreement (MSA) with CW Technical Services to govern future work or services that CW would perform, from time to time, to be requested by Marlin.[9] On October 21, 2004, Marlin entered into an identical MSA with Superior.[10]
Butcher, the first party plaintiff in this case, was hired by Superior to perform work aboard the L/B MAGGIE.[11] On June 25, 2005, Butcher was allegedly injured when a crane line on the L/B MAGGIE snagged and "jerked" him forward.[12] Although Triumph initially alleged that, at the time of the incident, Superior was working directly as a contractor for Marlin,[13] during discovery, the parties learned that Marlin had, in fact, hired CW for the work performed on June 25, 2005, and that CW hired Superior.[14]
Butcher sued Superior for damages on November 7, 2007.[15] Superior filed a third-party complaint for indemnification against Triumph,[16] and Triumph in turn filed a third-party complaint for indemnification against Marlin.[17] Marlin has moved for summary judgment that Triumph is not entitled to indemnification or to be named as an additional insured under the terms of the MCA.[18] The Court denied Triumph's Rule 56(f) motion for a continuance to pursue further discovery on September 30, 2010, 2010 WL 3909168.[19] The Court now GRANTS Marlin's motion for summary judgment.

II. LEGAL STANDARD
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, *833 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983)).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would `entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5th Cir.1991). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. Id. at 325, 106 S.Ct. 2548; see also Little, 37 F.3d at 1075 ("Rule 56 `mandates the entry of summary judgment, after adequate time for discover and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'") (citing Celotex, 477 U.S. at 332, 106 S.Ct. 2548).

III. DISCUSSION

A. Indemnification As A "Representative"
Triumph's contends that it is entitled to indemnification for Butcher's claims because SuperiorButcher's employerwas a Marlin "representative" under the indemnification provision of the MCA executed between Marlin and Gulf Offshore.[20] In relevant part, the MCA provides:
NEITHER OWNER, [i.e., Gulf Offshore]... THE VESSEL [i.e., the L/B MAGGIE], HER OWNERS [i.e., Triumph], OPERATORS, MASTER, AND CREW ... SHALL HAVE ANY RESPONSIBILITY OR LIABILITY ... FOR ANY INJURY ... OF EMPLOYEES OF CHARTERER [i.e., Marlin], ITS SUB CONTRACTORS, OR THEIR EMPLOYEES OR AGENTS, ITS REPRESENTATIVES, AND CHARTERER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS OWNER,... THE VESSEL, [and] ITS OWNERS... FROM AND AGAINST ANY SUCH CLAIM ... WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR FAULTS OF INDEMNITEES, OR BY UNSEAWORTHINESS *834 OF THE VESSEL OR EQUIPMENT OF OWNER, OWNER'S PROPERTY OR OWNERS SUBCONTRACTORS' PROPERTY....
For its part, Marlin argues that Superior was a "subcontractor," as opposed to a "representative," and that Marlin is not required to provide indemnification for Marlin's subcontractors, as evidenced by the strikethrough of the words "ITS SUB CONTRACTORS" in the MCA.[21]
The interpretation of a contractual indemnity provision is a question of law. Becker v. Tidewater, Inc., 586 F.3d 358, 369 (5th Cir.2009). "A maritime contract containing an indemnity agreement, whether governed by federal maritime or Louisiana law, should be read as a whole and its words given their plain meaning unless the provision is ambiguous." Id. An indemnity provision is interpreted to cover the losses or liability reasonably contemplated by the parties, Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 333 (5th Cir.1981), but it "will not afford protection unless its terms are expressed unequivocally." Hardy v. Gulf Oil Corp., 949 F.2d 826, 834 (5th Cir.1992).
Triumph's argument that Superior was a "representative" is based in part on its initial understanding that Marlin contracted directly with Superior for the sandblasting work during the relevant time period.[22] In its opposition to summary judgment, Triumph claims that, because Marlin was not a "contractor," but instead the owner of the platform on which Superior performed the sandblasting work, Superior cannot be a "subcontractor," because "[t]here is no `Original Contract' that is over the Marlin/Superior contract."[23] Marlin, however, has submitted evidence, consisting of billing invoices, that it contracted with CW for the work performed at the time of Butcher's alleged injury and that CW, in turn, hired Superior.[24] In addition, Marlin's corporate representative, Lawrence Frey Svendson, testified that Marlin was "working with C.W. Technical Services at the time."[25] Triumph has submitted no evidence to the contrary and, in relation to another motion for summary judgment before the Court, conceded that Superior "may not have been working for Marlin at the time of the incident."[26] In light of the evidence submitted by Marlin and Svendson's testimony, the Court finds that Superior was a Marlin "subcontractor" at the time of Butcher's alleged injury. See Hardy, 949 F.2d at 834 ("A maritime contract containing an indemnity agreement, whether governed by federal maritime or Louisiana law, should be read as a whole and its words given their plain meaning unless the provision is ambiguous."); see also Black's Law Dictionary (9th ed.2009) (defining "subcontractor" as "[o]ne who is awarded a portion of an existing contract by a contractor, esp. a general contractor").
The MCA provides indemnification only for injuries sustained by employees of Marlin and its representatives. Although an earlier draft of the MCA seems to have contemplated indemnification for the injuries of subcontractors' employees, the version of the MCA in the record indicates that Marlin is not obligated to provide such indemnification because the parties struck through the words "ITS SUB CONTRACTORS."[27] Further, by referring to both "representatives" and "subcontractors" *835 in the indemnification section, the MCA suggests that, as a subcontractor, Superior was not a representative. See Chembulk Trading LLC v. Chemex Ltd., 393 F.3d 550, 555 (5th Cir.2004) ("A basic principle of contract interpretation in admiralty law is to interpret, to the extent possible, all of the terms in the contract without rendering any of them meaningless or superfluous."). Because Superior was a subcontractor, the MCA contemplates indemnification only for Marlin's representatives, and the terms "representative" and "subcontractor" appear to have different meanings, the Court finds that the MCA does not unequivocally provide for Marlin to indemnify Triumph for injuries to Superior's employees.
The Court's conclusion is supported by the meaning of the term "representative." Although the MCA does not define that term, both parties rely on Black's Law Dictionary to define "representative" under the MCA.[28]Black's defines "representative" as "[o]ne who stands for or acts on behalf of another ... See AGENT." Black's Law Dictionary (9th ed.2009). In turn, Black's defines "agent" as "[o]ne who is authorized to act for or in place of another; a representative." Id. Because the term "representative" is a synonym of the term "agent," and because the parties have pointed to no other common understanding of the term, the Court looks to general agency law to determine whether Superior could be a Marlin "representative" in addition to a "subcontractor."
Agency is never presumed and must be proven affirmatively. Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1296 (5th Cir.1994) ("The party asserting an agency relationship bears the burden of proof."). To prove an agency relationship, a plaintiff must show that: (1) the principal indicated the agent was acting for it, (2) the agent acted or agreed to act on the principal's behalf, and (3) the agent was subject to the principal's control. Aetna Ins. Co. v. Glens Falls Ins. Co., 453 F.2d 687, 690-91 (5th Cir.1972); Steel Coils, Inc. v. Captain Nicholas I M/V, 197 F.Supp.2d 560, 567 (E.D.La.2002); see also Restatement (Second) of Agency § 1 cmt. a (1958) ("The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act."). "[T]he essential element of an agency relationship is the right of control." In re Carolin Paxson Adver., Inc., 938 F.2d 595, 598 (5th Cir.1991). The principal must have the right to control both the "means and the details" of its agent's performance. Id. Further, the Fifth Circuit has indicated that federal maritime law incorporates these principles. See Cactus Pipe & Supply Co., Inc. v. M/V Montmartre, 756 F.2d 1103, 1111 (5th Cir.1985) ("Maritime law embraces the principles of agency.") (citing West India Industries, Inc. v. Vance & Sons AMC-Jeep, 671 F.2d 1384 (5th Cir.1982)); see also MTO Maritime Transport Overseas, Inc. v. McLendon Forwarding Co., 837 F.2d 215, 218-19 (5th Cir.1988) (finding an agency relationship based on the alleged agent's authority to enter into an agreement on behalf of the alleged principal in the context of a maritime breach of contract dispute).
There is no evidence that Marlin had the right to control the means and details of Superior's performance, and the MSA executed between Marlin and CW suggests otherwise.[29] The MSA expressly provides *836 that CW is "an independent contractor and that neither Contractor nor Contractor's principals, partners, employees, or subcontractors, are servants, agents or employees of MARLIN."[30] The MSA also provides that "MARLIN shall not have the right to control or direct the details of the work performed by Contractor."[31] These provisions of the MSA are not dispositive, but they are persuasive expressions of the parties' intent. See e.g., Arguello v. Conoco, Inc., 207 F.3d 803, 807-08 (5th Cir.2000) (finding no agency relationship when, inter alia, the terms of the contract expressly provided that branded stores were not agents of the alleged principal).
The MSA does give Marlin "the general right of inspection and supervision in order to secure the satisfactory completion of any work or services."[32] But there is no evidence that Marlin controlled the means and details of Superior's work and services. To the contrary, Butcher testified during his deposition that a fellow Superior employee was responsible for supervising Superior's crew, and Butcher did not mention any interaction with Marlin employees during a typical work day.[33] Similarly, although the MSA requires CW to institute a safety program acceptable to Marlin,[34] the record indicates that the means and details of the safety program were left to Superior. Butcher testified during his deposition that Micah Manning, a Superior employee and supervisor, and not a Marlin employee, conducted daily safety meetings.[35] Marlin's general right of inspection and supervision does not give rise to an agency relationship. See, e.g., Arguello, 207 F.3d at 808 (holding that the right to impose standards of operation and to de-brand local stores was insufficient to establish agency relationship because the purported principal was not in control of the store's daily operations).
For all of these reasons, and because Triumph has pointed to no evidence that Marlin exercised control over the work performed by Superior, the Court finds that Triumph has failed to raise an issue of material fact that Superior was a representative of Marlin.

B. Indemnification As A "Borrowed Employee"
Triumph alternatively contends that it is entitled to indemnity because Butcher was a "borrowed employee" of Marlin's, which would bring his claims within the scope of Marlin's indemnity obligations.[36] The party asserting the existence of a borrowed employee relationship bears the burden of proof. Franks v. Assoc'd Air Center, Inc., 663 F.2d 583, 587 (5th Cir.1981). Whether an individual is a borrowed employee is a "matter of law" determined by "nine separate factual inquiries":
1. Who has control over the employee and the work he is performing, beyond mere suggestion of details or cooperation?
2. Whose work is being performed?
3. Was there an agreement, understanding or meeting of the minds *837 between the original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished tools and place for performance?
7. Was the new employment over a considerable length of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?
Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir.1988) (citing Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969)); Brown v. Union Oil Co. Of Cal., 984 F.2d 674, 676 (5th Cir.1993). No single factor or set of factors is determinative in establishing a "borrowed employee" relationship. Brown, 984 F.2d at 676. The central factor is that of control. Id.; Melancon, 834 F.2d at 1244-45 (same); Ruiz, 413 F.2d at 312 (same).

1. Control

Under the first factor, the Court must ask whether Marlin exercised "authoritative direction and control" over Butcher beyond the mere suggestion of details or necessary cooperation. Ruiz, 413 F.2d at 313. As discussed above, there is no evidence that it did, and accordingly this factor weighs against borrowed employee status.

2. Party For Whom The Work Is Performed

The second factor, the party for whom the work is performed, weighs in favor of a borrowed employee relationship. In Melancon v. Amoco Production, Co., 834 F.2d 1238 (5th Cir.1988), the Fifth Circuit found that maintenance work on a platform was essential to the work of the platform's owner, even though such work was only incidental to production of hydrocarbons. Id. at 1245. The circumstances here are no different. Butcher assisted with maintenance services on a platform owned only by Marlin, and his work was therefore performed for Marlin.[37] This factor weighs in favor of borrowed employee status.

3. Agreement Between The Original And Borrowing Employer

The third factor, whether there was an agreement between the original and borrowing employer, weighs against a borrowed employee relationship. The MSA between Marlin and CW provides that CW is an independent contractor and that none of its "principals, partners, employees or subcontractors" are servants, agents, or employees of Marlin.[38] The contract also provides that Marlin has only a general right of inspection and cannot control the details of the work performed by CW.[39] Because the MCA specifically expresses that CW's subcontractors, like Superior, are not Marlin's agents, and Triumph points to no evidence of any understanding that Butcher would be taking his orders from Marlin, this factor weights against borrowed employee status.

4. Acquiescence Of Employee

The fourth factor, whether the employee acquiesced to his new work situation, weighs in favor of a borrowed employee relationship. The question under this factor is whether the employee was aware of his work conditions and chose to continue working in them. Brown, 984 F.2d at 678. *838 The Fifth Circuit has not indicated the minimum amount of time necessary for an employee to appreciate new work conditions. Compare id. (holding that one month was sufficient but recognizing that "many of our cases affirming borrowed servant status have involved longer periods of work"), with Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d 615, 617 (5th Cir.1986) (holding that one day was sufficient where the plaintiff acquiesced to being sent constantly into new work situations). In this case, Butcher worked on Marlin's platform for "three weeks and a few days" before the accident.[40] Further, Butcher testified that his "job description" did not change when he moved from his previous employer to Superior.[41] On balance, the Court finds that Butcher acquiesced to his new work situation aboard the L/B MAGGIE.

5. Termination Of Original Employment Relationship

The fifth factor considers whether the original employer terminated its relationship with the alleged borrowed employee. The relationship need not be severed completely, as such a strict standard would essentially eliminate the borrowed employee doctrine. Melancon, 834 F.2d at 1246. Instead, the emphasis "should focus on the lending employer's relationship with the employee while the borrowing occurs." Id. (quoting Capps, 784 F.2d at 618). The relationship between the original employer and the worker is not terminated when the original employer maintains supervision over the alleged borrowed employee. Brown, 984 F.2d at 678.
In this case, Butcher's testimony establishes that a Superior employee continued to supervise Butcher's work on Marlin's platform.[42] In addition, a Superior employee conducted daily safety meetings that Butcher was required to attend.[43] The evidence thus suggests that Superior did not terminate its relationship with Butcher while Butcher was working on Marlin's platform. This factor weighs against borrowed employee status.

6. Tools And Place Of Performance

The sixth factor inquires into which party provided the tools and place of performance. The record indicates that Superior provided the sandblasting and painting equipment used to complete the maintenance of Marlin's platform.[44] But Marlin chartered the L/B MAGGIE, where Butcher performed some work,[45] was transported to and from the work site,[46] and ate and slept.[47] Furthermore, most of Butcher's work was performed directly on Marlin's platform.[48] On balance, the Court finds that this factor weighs in favor of borrowed employee status. Melancon, 834 F.2d at 1246 (holding that district court did not err in finding that the sixth factor weighed in favor of borrowed employee status when the alleged borrowing employer provided the place of performance, transportation to and from the work site, and food and lodging, and the original employer provided the welding machine and equipment needed for performance).

*839 7. Duration of New Employment

The seventh factor, the length of time of the new employment, is neutral as to Butcher's borrowed employee status. Butcher worked on Marlin's platform for three weeks before sustaining his injury.[49] The Fifth Circuit has found that while a lengthy period of new employment suggests borrowed employee status, "the converse is not true" where employment is cut short by an accident. Brown, 984 F.2d at 679 (quoting Capps, 784 F.2d at 618). Because Butcher did not spend a substantial amount of time in his new employment, the seventh factor does not shed light on the nature of Butcher's relationship with Marlin and Superior.

8. Right To Terminate

The eighth factor asks whether the alleged borrowing employer has the right to terminate its relationship with the worker. In this case, there is no evidence that Marlin had a right to terminate Butcher. It is true that Marlin reserved the right to require CW's subcontractors' employees to submit to drug tests in compliance with Marlins's Contraband Control Policy,[50] but the MSA does not provide Marlin a right to terminate an individual employees who fails a drug test. Instead, the MSA provides only that "failure of your employees to comply and cooperate with this policy may cause cancellation of your contract with Marlin Energy."[51] Because there is no evidence that Marlin had a right to terminate the relationship with Butcher, this factor weighs against borrowed employee status.

9. Obligation To Pay

Finally, the ninth factor, who had the obligation to pay the employee, weighs against borrowed employee status. Triumph has not produced any evidence that Marlin was responsible for Butcher's wages.
Triumph has failed to provide evidence that Marlin controlled Butcher's work activity, and Butcher's deposition and the terms of the MSA suggest otherwise. Four additional factors weigh against borrowed employee status, three weigh in favor, and one is neutral. The five factors weighing against borrowed employee status, including the central factor of control, are sufficient to establish that Butcher is not a borrowed employee of Marlin as a matter of law. See Jackson v. Total E & P USA, Inc., 341 Fed.Appx. 85, 87 (5th Cir. 2009) (finding borrowed employee status where five factors, including the control factor, weighed in favor of borrowed employment, and four factors were neutral). Accordingly, the Court finds that Triumph has not created a genuine issue of material fact as to whether Butcher was not a borrowed employee and thus Marlin is entitled to summary judgment on Triumph's indemnification claim under that theory.

C. Insurance Obligations
As an extension of the argument that Marlin is obligated to indemnify Triumph for Butcher's alleged injuries, Triumph contends that Marlin was obligated to name Triumph as an additional assured and to waive subrogation.[52] The MCA specifies that Marlin's insurance obligations "shall only apply with respect to the Indemnities, obligations, and risks assumed by Charterer in this Agreement."[53]*840 Because the Court finds that no such indemnity obligation exists, the Court also finds that Marlin was not required to name Triumph as an additional inured.

IV. CONCLUSION
For the foregoing reasons, Marlin's motion for summary judgment is GRANTED.
NOTES
[1]  (R. Doc. 127; R. Doc. 133.)
[2]  (R. Doc. 127-2.)
[3]  (Id. at 3.)
[4]  (Id. at 7.) In its opposition to summary judgment, Triumph questions the authenticity of the above-quoted MCA, submitted by Marlin. (R. Doc. 133 at 5-6.) Triumph, however, has not submitted a competing version of the MCA, and Marlin has provided two affidavits, one from Eugene Minvielle, Marlin's Chief Financial Officer and Treasurer, and one from Randy E. Wheeler, Marlin's former Vice President, attesting that the MCA in the record was in place during the relevant time period. (R. Doc. 127-2; 153-1.) Accordingly, in the absence of evidence to the contrary, the Court finds that the MCA in the record governs the relationship between Marlin and Gulf Offshore for the purposes of Marlin's motion for summary judgment.
[5]  (Id. at 6-7.)
[6]  (Id. at 6.)
[7]  (R. Doc. 127-2.)
[8]  (R. Doc. 127-7.)
[9]  (R. Doc. 153-3.)
[10]  (R. Doc. 127-4.)
[11]  (R. Doc. 24-5 at 30-34.)
[12]  (R. Doc. 1; R. Doc. 31-2 at 79.)
[13]  (R. Doc. 127-7.)
[14]  (R. Doc. 143-3 at 3; 153 at 5-6; R. Doc. 164-1; R. Doc. 179.)
[15]  (R. Doc. 1.)
[16]  (R. Doc. 127-6.)
[17]  (R. Doc. 127-7.)
[18]  (R. Doc. 127-1.)
[19]  (R. Doc. 185.)
[20]  (R. Doc. 127-7 at 3; R. Doc. 133 at 6-9.)
[21]  (R. Doc. 127-1 at 5-7.)
[22]  (R. Doc. 133 at 6.)
[23]  (Id. at 6-7.)
[24]  (R. Doc. 153-2.)
[25]  (R. Doc. 143-3 at 11.)
[26]  (R. Doc. 164-1 at 2.)
[27]  (R. Doc. 127-2 at 7.)
[28]  (R. Doc. 133 at 7; R. Doc. 127-1 at 7.)
[29]  As noted above, Marlin entered into an MSA with Superior on October 21, 2004, which governs work requested by Marlin from Superior. (R. Doc. 127-4 at 1; R. Doc. 143-3 at 3.) Because it appears that Marlin requested the relevant work from CW, the Court finds that the Marlin/Superior MSA is inapplicable. Even assuming its relevance, however, the Marlin/Superior MSA does not suggest that Marlin exercised control over Superior for similar reasons that the Marlin/CW MSA does not, because the two documents contain identical terms.
[30]  (R. Doc. 153-3 at 1-2) (emphasis added).
[31]  (Id.)
[32]  (R. Doc. 153-3 at 1-2.)
[33]  (R. Doc. 24-5 at 28; R. Doc. 31-2 at 161.)
[34]  (R. Doc. 153-3 at 6-7.)
[35]  (R. Doc. 24-5 at 45-46.)
[36]  (R. Doc. 133 at 9-11.)
[37]  (R. Doc. 24-5 at 30.)
[38]  (R. Doc. 153-3 at 1) (emphasis added).
[39]  (Id. at 1-2.)
[40]  (R. Doc. 24-5 at 26.)
[41]  (Id. at 27.)
[42]  (Id. at 28; R. Doc. 31-2 at 161.)
[43]  (R. Doc. 24-5 at 45.)
[44]  (R. Doc. 31-2 at 37-39.)
[45]  (R. Doc. 31-2 at 163-164.)
[46]  (R. Doc. 24-5 at 34.)
[47]  (Id. at 50, 167.)
[48]  (R. Doc. 31-2 at 163-64.)
[49]  (R. Doc. 24-5 at 26.)
[50]  (R. Doc. 153-3 at 20.)
[51]  (Id.)
[52]  (R. Doc. 133 at 11.)
[53]  (R. Doc. 127-2 at 6.)


Citation Nr: 1730432
Decision Date: 07/31/17    Archive Date: 08/04/17

DOCKET NO.  12-32 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia

THE ISSUES

1. Entitlement to an increased rating in excess of 40 percent for service-connected chronic venous insufficiency of the left lower extremity.

2. Entitlement to service connection for lymphedema of the right lower extremity, to include as secondary to service-connected chronic venous insufficiency of the left lower extremity.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel

INTRODUCTION

The Veteran served on active duty from October 1952 to March 1974.

This appeal to the Board of Veterans' Appeals (Board) arose from a December 2010 rating decision in which the Tiger Team, a VA Special Processing Unit, at the RO in Cleveland, Ohio found that new and material evidence had not been received to reopen a claim for service connection for a right leg disability, characterized as swelling in the right lower extremity consistent with lymphedema and postphlebitic syndrome and denied a rating in excess of 40 percent for chronic venous insufficiency of the left lower extremity.  (Jurisdiction of the appeal remained with the RO in Atlanta, Georgia.)  In September 2011, the appellant filed a notice of disagreement (NOD).  In September 2012, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2012.

On his VA Form 9, the Veteran requested a Board hearing, via videoconferencing.  The Veteran was scheduled for a videoconference hearing to be held at the Atlanta RO on April 27, 2016.  The Veteran did not attend the scheduled hearing and the Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran cancelled his hearing.  The Veteran has also not requested that his hearing be rescheduled and in the June 2016 appellant's brief, the Veteran's representative made no mention of a Board hearing.  Under these circumstances, the Board determined that the Veteran's prior request for a Board hearing has been withdrawn.

In May 2016, this appeal was advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107 (a)(2) (West 2014) and 38 C.F.R. § 20.900 (c) (2016).

In July 2016, the Board found that because evidence received since a December 2003 denial of the Veteran's claim for service connection for a right leg disability included new and material evidence received prior to the expiration of the appeal period, the criteria for reconsideration of the claim for service connection for a right leg disability, pursuant to 38 C.F.R. § 3.156(b), was warranted.  The Board then remanded for additional development the claim for service connection for a right leg disability (characterized as lymphedema of the right lower extremity, to include as secondary to service-connected chronic venous insufficiency of the left lower extremity), and the claim for an increased rating for his service-connected chronic venous insufficiency of the left lower extremity.

After accomplishing further action, the agency of original jurisdiction (AOJ) continued to deny the claims for service connection for lymphedema of the right lower extremity and for an increased rating for his service-connected chronic venous insufficiency of the left lower extremity(as reflected in an August 2016 supplemental SOC (SSOC)), and returned these matters to the Board.

In December 2016, the Board again remanded the above claims for additional development.  After accomplishing further action, the AOJ again continued to deny the claims (as reflected in a May 2017 SSOC), and returned these matters to the Board.

The Board's decision on the claim for higher rating for chronic venous insufficiency of the left lower extremity is set forth below.  The claim for service connection for right lower extremity lymphedema is addressed in the remand following the order; this matter is, again, being remanded to the AOJ VA will notify the Veteran when further action, on his part, is required.

FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided.

2.  Pertinent to the current June 2010 claim for increase but prior to November 19, 2015, medical evidence did not establish either stasis pigmentation or persistent ulceration as a manifestation of chronic venous insufficiency of the left lower extremity.

3.  As of November 19, 2015, the evidence has, as likely as not, appeared to more closely approximate edema, stasis pigmentation and persistent ulceration as manifestations of chronic venous insufficiency of the left lower extremity.

CONCLUSIONS OF LAW

1. The criteria for rating in excess of 40 percent for chronic venous insufficiency of the left lower extremity, prior to November 19, 2015, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7199-7121 (2016).

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for a 60 percent but no higher rating for chronic venous insufficiency of the left lower extremity, from November 19, 2015, are met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.400(o), 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7199-7121 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b)).

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ.  Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In an August 2010 pre-rating letter, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate an increased rating claim.  It also notified the Veteran as to what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.

The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists of service records, VA treatment records, private medical records and the April 2017 VA examination report.  There is no indication that the severity of the pertinent service-connected disability has materially increased since April 2017.  The most recent VA treatment records indicate that the Veteran continues to see a private provider for lymphedema physical therapy treatment through the VA Choice Program.  However, as part of the December 2016 remand, the AOJ sent the Veteran a December 2016 letter requesting that he identify such private medical records for lymphedema treatment or alternatively, submit them himself.  38 C.F.R. § 3.159(e)(2).  He has not responded to this letter or made any report that he wanted these updated private medical records considered in the appeal.  Also of record and considered in connection with the appeal are written statements from the Veteran and his representative.  The Board finds that no further AOJ action on this claim, prior to appellate consideration, is required.

The Board finds substantial compliance with the July 2016 and December 2016 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required).  The AOJ sent the Veteran a December 2016 letter requesting that the Veteran identify all pertinent treatment records and included authorizations for the release of private medical records.  It obtained Lake City and Gainesville VA Medical Center (VAMC) records.  The April 2017 VA examination is in substantial compliance with the December 2016 remand instructions.  See Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012) (holding that a VA examination report must be read as a whole); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012).  Also, as directed, after the receipt of additional evidence, the AOJ readjudicated the claim in the May 2017 SSOC.

In summary, the duties imposed by the VCAA have been considered and satisfied.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided.  As such, the Veteran is not prejudiced by the Board proceeding to a decision on this claim, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in determining the present level of a disability for any increased rating claim, the Board must consider the applicability of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings may be warranted.

The Veteran is service-connected for chronic venous insufficiency of the left lower extremity with a 40 percent rating assigned under DCs 7199-7121.  Such hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code-in this case, post-phlebitic syndrome -to identify the basis for the rating.  See 38 C.F.R. § 4.27.  As the rating schedule does not provide specific criteria for chronic venous insufficiency, this disability has been evaluated by analogy to post-phlebitic syndrome under DC 7121.  See 38 C.F.R. §§ 4.20, 4.104.

DC 7121 provides that a 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.  A 60 percent rating is warranted for persistent edema or subcutaneous indurations, stasis pigmentation or eczema, and persistent ulceration.  A maximum 100 percent rating is warranted for massive board-like edema with constant pain at rest.  38 C.F.R. § 4.104, DC 7121.

In June 2010, the Veteran filed the current increased rating claim.

In August 2010, the Veteran was afforded a VA artery and vein examination.  He reported that since approximately 2005 or so, his left lower extremity had become more symptomatic with increased swelling.  He identified symptoms of pain, numbness and severe edema.  The pain was 8/10 most of the time.  He woke up at night due to leg pain and had increased pain/ cramping with walking.  The edema was reportedly persistent without relief from elevation.  The Veteran denied any history for pulmonary embolism, blood clot, acute thrombophlebitis, or deep vein thrombosis (DVT).  The Veteran reported significantly diminished activity over the past five years.  Clinical examination shows a barely palpable dorsalis pedis.  The examiner described severe lymphedema and swelling starting from the dorsum all the way through the knee.  The left lower calf circumference was slightly (two centimeters) larger than the right calf.  The examiner attempted to obtain an ankle brachial index (ABI), but the Veteran's legs were too large to do so.  He diagnosed severe swelling consistent with lymphedema and postphlebitic syndrome.  He commented that the Veteran had become much more symptomatic with increased pain, numbness and loss of sensation.  He stated that the bilateral lymphedema is very severe and would limit walking or any recreational activity.  He recommended a higher disability rating.

August 2011 private medical records reflect that the Veteran had a two-week history of slight increased swelling in the left leg.  He was noted to have severe lymphedema in both legs.  He was admitted to the hospital for antibiotic treatment for left lower extremity cellulitis.

February 2012 VA podiatry clinic records show that the Veteran requested a toenail trimming.  He had difficulty reaching his feet.  The podiatrist noted severe lymphedema affecting both legs, ankles and feet with the left leg being worse than the right.

August 2012 VA physical therapy records reflect that the Veteran received custom compression stockings for treatment.

November 2012 private medical records note severe lymphedema in both legs.  The treatment plan included lymph pumps, elevation, stockings and diuretics.

In his November 2012 substantive appeal, the Veteran reported that his lymphedema had worsened and a 40 percent rating was insufficient.

December 2013 VA primary care records show that stasis edema without cyanosis was noted for both legs.  The Veteran had a healing ulcer on his right ankle.

June 2014 VA primary care records again show stasis edema without cyanosis.  There was no report concerning an ulcer.

April 2015 private medical records include complaints about increased bilateral edema and pain.  Clinical examination noted bilateral lower extremity lymphedema.  The Veteran was admitted for cardiac disease treatment.

April 2015 private hospital records document limited lower extremity range of motion due significant swelling.  The clinician reported 3+/5 strength in the lower extremities.  The Veteran could not walk further than five feet, citing pain in the back of his legs.

October 2015 VA primary care records include reports of increased lower extremity swelling.  Clinical evaluation showed bilateral edema without cyanosis or clubbing.  No skin openings were observed.  The clinician noted the lymphedema of both legs as progressively worse.

November 2, 2015 VA primary clinic records identify two small, almost healing skin openings of the legs.  The clinician placed a lymphedema clinic/ wound care referral.

The report of a November 19, 2015 VA wound care consultation reflects that the Veteran had oozing and small open areas of the left lower extremity.  Some were healing, but wound care education was needed.  Clinical evaluation showed intact pink, blanchable skin without open areas.  Lymphedema (4+) to both legs and feet was observed.  The clinician noted that the Veteran used a motorized scooter for ambulation with oxygen.  No pulses were located.  The clinician assessed bilateral lower extremity lymphedema and peripheral vascular disease (PVD).

April 2016 VA primary care records reflect that the Veteran had recently been hospitalized for congestive heart failure (CHF) exacerbation.  He was noted to be doing well since discharge.  Clinical evaluation revealed edema (+4) for both legs.  The clinician assessed progressive chronic lymphedema.

June 2016 private medical records reflect that the Veteran had dark brown skin color and a few small open areas affecting his left lower extremity.  Upon clinical examination, skin was described as moderately dry.  The clinician noted old scars from ulcerations.  The clinician assessed the severity as moderate.

August 2016 private medical records document "a few small scratches" and old scarring from prior ulcerations.  Skin was described as dark brown and mildly red with moderate dryness.

In August 2016, the Veteran was afforded a VA artery and vein examination.  The examiner diagnosed chronic venous insufficiency left lower extremity.  The examiner opined that the severity of the vascular condition was not tantamount to amputation with prosthesis.  The examiner reported that no associated scars were found.  Currently, the Veteran had swollen legs and feet.  Elevation of the extremity was minimally beneficial.  The Veteran took Lasix and wore compression stockings for treatment.  Clinical evaluation showed bilateral edema and use of compression stockings.  The Veteran declined to remove the stocking.  He denied open ulcers.  Circumference of the leg was the same bilaterally.  The examiner commented that lymphedema was less likely related to left lower extremity chronic venous insufficiency.

In a September 2016 letter, a private treating clinician (B.M.) stated that the Veteran was receiving bandage therapy for moderate to severe lymphedema affecting both legs.

February 2017 VA treatment records reference a chronic ulcer as a reason for a private medical referral.

March 2017 VA vascular surgery consultation records show that the Veteran had hyperpigmentation affecting both lower extremities.  The Veteran did not report infections being a significant issue.  He was in a wheelchair primarily due to poor respiratory status.  Clinical evaluation showed hyperpigmentation from the mid-calf downwards and moderate to severe lymphedema.  The Veteran's ankle brachial index (ABI) was sufficient and no vascular surgery was indicated.

In April 2017, the Veteran was reexamined for left lower extremity chronic venous insufficiency.   The examiner noted the left Achilles tendon injury and subsequent swelling from cast treatment.  She was unclear as to the when the lymphedema diagnosis was made.  She stated that the Veteran had varicose veins and post-phlebitis syndrome affecting the left lower extremity.  Symptoms were relieved with elevation and compression hosiery.  The examiner noted symptoms of persistent stasis pigmentation, persistent edema that is incompletely relieved by elevation of extremity.  She stated that the Veteran used an electric wheelchair due to many illnesses.  For the vascular condition, she stated that the affected extremity function was not so diminished that amputation with prosthesis would equally serve the Veteran.  She remarked that the Veteran had varicose veins in his left lower extremity with edema (3+).  It was difficult to distinguish between edema due to service-connected chronic venous insufficiency and that due to chronic CHF.  She reiterated the established chronic venous insufficiency diagnosis of the left lower extremity.

After careful review of the record, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, beginning November 2, 2015, chronic venous insufficiency of the left lower extremity disability is most appropriately rated as 60 percent, but that a higher rating prior to that date is not warranted.

At the outset, the Board notes that the Veteran is service-connected left lower extremity venous insufficiency and most of the treatment records refer to left lower extremity lymphedema as the diagnosis.  While the August 2016 VA examiner provided a conclusory opinion that these two diseases are unrelated, the totality of the evidence of record indicates the Veteran has a complicated medical history with left lower extremity edema dating to service.  There is no persuasive medical indication that the lymphedema symptoms and diagnosis are clearly distinguishable from service-connected left lower extremity venous insufficiency.  Thus, the Board has resolved all reasonable in the Veteran's favor in attributing all his left lower extremity symptoms/manifestations to his service connected venous insufficiency.  See Mittleider v. West, 11 Vet. App. 181 (1998) .

Prior to November 19, 2015, the evidence indicates that the chronic venous insufficiency diagnosis of the left lower extremity was productive of edema, but does not clearly document stasis pigmentation or persistent ulceration.  (See August 2010 VA examination report; December 2013, June 2014 and October 2015 VA primary care records (stasis edema without cyanosis)).  Notably, for DC 7121, the 60 percent criteria are listed in the conjunctive, not disjunctive; thus all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013).  The Veteran was clinically examined multiple times over this period and the treating clinicians did not report or document any left lower extremity skin breakdown or ulcer or clearly refer to skin discoloration as a notable feature.  See VA primary care records from December 2013, June 2014 and October 2015.  The Veteran does not provide any reports otherwise concerning stasis pigmentation or ulceration of the left lower extremity.  Consequently, the absence of reports concerning stasis pigmentation or persistent ulceration precludes a rating in excess of 40 percent for left lower extremity venous insufficiency prior to November 19, 2015.  Id.; 38 C.F.R. § 4.104, DC 7121; Melson, supra.; Middleton, supra.

Accordingly, the Board resolves reasonable doubt in the Veteran's favor to find that, beginning November 19, 2015, it is factually ascertainable that the additional manifestations of stasis pigmentation and persistent ulceration have been approximated.  See 38 C.F.R. §§ 3.400(o), 4.3, 4.7, 4.104, DC 7121.  On November 2, 2015, a VA treating clinician observed skin openings and placed a referral to the wound clinic.  On November 19, 2015, a VA wound care clinician described the Veteran's left lower extremity skin as pink, which is indicative of stasis pigmentation.  Clinical records after November 19, 2015 include additional findings of skin breakdown or ulcer and stasis pigmentation.  See April 2017 VA examination report (noting stasis pigmentation); and private medical records from June 2016 and August 2016 (referring to ulcerations with associated scarring)).  Although the Veteran denied ulcers at the August 2016 VA examination, the February 2017 VA treatment records list chronic ulcer as a reason for the private treatment referral.  The Board also notes that the April 2017 VA examination report confirmed edema and persistent stasis pigmentation, but not persistent ulceration.  However, given the above history, the Board resolves reasonable doubt to find that, as of November 19, 2015, both persistent ulceration of the left lower extremity and persistent edema and stasis pigmentation of the left lower extremity have been shown.  See id.

Notably, however, the maximum, 100 rating for the disability under DC 7121 is not warranted at any point pertinent to the current claim for increase. The April 2017 VA examiner declined to assess the left lower extremity edema as massive, board-like edema.  The medical and lay evidence does not otherwise suggest that massive, board-like edema has been.

The above determinations are based on consideration of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point pertinent to this claim has the Veteran's chronic venous insufficiency of the left lower extremity   been shown to present so exceptional or so unusual a picture as to render the applicable criteria inadequate, and to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321 (b)(1).

The threshold factor for extra-schedular consideration is a finding on the part of the AOJ or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. § 3.321 (b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, 22 Vet. App. 111.

In this case, the Board finds that the applicable schedular criteria are adequate to rate the Veteran's chronic venous insufficiency of the left lower extremity at all points pertinent to this appeal.  The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate chronic venous insufficiency of the left lower extremity.  The Board also points out that the Veteran is currently in receipt of a total disability rating with special monthly compensation, which in itself is indicative that his service-connected disabilities are fully contemplated by the schedular rating criteria.

The Board further notes that under Johnson v. McDonald, 762 F.3d 1362   (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.  Here, however, the Veteran has not asserted, and the evidence of record does not suggest, that this appeal involves any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extra-schedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities").  As such, further discussion of the holding in Johnson is unnecessary.

As the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321 (b)(1) is not met, referral of the claim for extra-schedular consideration is not required.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For all the foregoing reasons, the Board finds that staged rating of the Veteran's chronic venous insufficiency of the left lower extremity is appropriate, with a 60 percent rating warranted rom November 19, 2015.   The Board has resolved all reasonable doubt in the Veteran's favor in assigning the 60 percent rating from that date, but finds that the preponderance of the evidence is against assignment of any higher rating at any pertinent point.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

A 40 percent rating for chronic venous insufficiency of the left lower extremity, prior to November 19, 2015, is denied.

A 60 percent rating for chronic venous insufficiency of the left lower extremity, from November 19, 2015, is granted; subject to the legal authority governing the payment of compensation.

REMAND

Unfortunately, the Board finds that further AOJ action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter.

A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In December 2016, the Board remanded this matter, inter alia, for the AOJ to obtain a VA medical etiology opinion for service connection for right lower extremity lymphedema.  The remand instructions specifically stated that the examiner should not focus on the absence of service records establishing lymphedema in service.  Rather, the examiner should explain why or why not the right lower extremity lymphedema is related to the in-service left Achilles tendon injury.  It further requested that the examiner provide an etiology for the right lower extremity lymphedema, if possible and that the examiner support his or her rationale with citations to pertinent evidence or medical principles.

The AOJ obtained an April 2017 VA/QTC medical opinion.  The examiner provided a negative medical opinion.  For her direct service connection rationale, she cited an absence of right leg swelling in service.  She did not discuss the in-service left Achilles tendon injury.  She did not indicate whether it was possible to identify the etiology for right lower extremity lymphedema.

The Board finds the April 2017 VA/QTC medical opinion regarding direct service connection to be unresponsive to the specific remand instructions given in the December 2016 Board remand.  The examiner's rationale regarding direct service connection is conclusory and essentially based upon an absence of medical treatment in service.  The examiner makes no reference to the left Achilles tendon injury in her rationale, nor explains whether an etiology can be identified.

The April 2017 VA/QTC medical opinion rationale for secondary service connection is a conclusive statement that there was no causal relationship between left lower extremity venous insufficiency and right lower extremity lymphedema.  The Board finds an additional opinion regarding secondary service connection with further explanation of the different pathologies between the disabilities is needed to fulfill the December 2016 Board remand instructions.

For these reasons, the April 2017 VA/QTC medical opinion regarding service connection for right lower extremity lymphedema did not substantially comply with the Board's past remand directives.  Thus, another remand of this matter is required to ensure such compliance.  Stegall, supra.; See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with).

While this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.  As for VA records, the claims file reflects that the most recent VA treatment records associated with the Veteran's claims file are from the VA Medical Center (VAMC) in Gainesville, Florida from April 25, 2017.  On remand, the AOJ should obtain updated records of any relevant VA treatment of the Veteran.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession).

Prior to obtaining another VA medical opinion, to ensure that all due process requirements are met, and the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).  The AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records.

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2016).

The actions identified herein are consistent with the duties imposed by the VCAA.   38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal.

Accordingly, this matter is hereby REMANDED for the following action:

1.  Obtain from the Gainesville VAMC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since April 25, 2017.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

2.  Send to the Veteran a letter requesting that he Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record.  Specifically request that the Veteran identify the medical provider, and either furnish, or furnish appropriate authorization to obtain, medical records for lymphedema treatment through the VA Veteran's Choice program and any other outstanding, pertinent private (non-VA) records.

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

3.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from an appropriate physician-preferably, one who had not previously examined him or provided an addendum opinion in connection with his appeal.

Only arrange for the Veteran to undergo further VA examination if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion.

The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions.

Based on a review of all pertinent lay and medical evidence, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that right lower extremity lymphedema:

 a) had its onset in, or is otherwise medically-related to the Veteran's military service to specifically include the left Achilles tendon injury therein; or, if not,

 b) was caused, OR is or has been aggravated (worsened beyond natural progression), by the Veteran's service-connected chronic venous insufficiency of the left lower extremity.  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, to include by identifying (to the extent possible) the baseline level of disability prior to aggravation .

In addressing the matter of direct service connection, the examiner should not focus on the absence of records establishing lymphedema of the right lower extremity in service. Rather, the examiner should review all of the records and explain, in detail, why the Veteran's lymphedema of the right lower extremity in service may or may not be related to the Achilles tendon injury in service.  The examiner should also to provide an etiology for the Veteran's lymphedema of the right lower extremity in service if an etiology can be discerned from the record.  The examiner should also provide detailed reasons for the evidence does not support a finding the Veteran's lymphedema of the right lower extremity in service is in any way related to, to include worsened by, the Veteran's chronic venous insufficiency of the left side, if that is the conclusion reached.

The examiner is reminded that that merely stating a conclusory opinion that the Veteran's lymphedema of the right lower extremity is not related to service and was not caused or aggravated by the Veteran's service-connected venous insufficiency is not sufficient.  An explanation is required that takes into account the record and pertinent medical principles and the examiner's rationale should include citation to pertinent evidence and/or medical principles relied upon to form that opinion.  If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made

All examination findings/testing results, along with a complete, clearly-stated rationale for the conclusions reached, must be provided.

5.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall, supra.).  Specifically, review the opinions obtained on remand to ensure that they include the information requested above and are supported by detailed and adequate rationale.

6.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal in
light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority.

7.  If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action
 must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B , 7112

      (CONTINUED ON NEXT PAGE)

(West 2014).  The AOJ is reminded that this appeal has been advanced on the Board's docket.

____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


184 F.Supp. 296 (1960)
John TOSCANO, Plaintiff,
v.
Otto K. OLESEN, individually and as Postmaster of the City of Los Angeles, State of California, and Donald Schoof, individually and as Postal Inspector of the City of Los Angeles, County of Los Angeles, State of California, Defendants.
No. 560-60.
United States District Court S. D. California, Central Division.
June 10, 1960.
Brock, Fleishman & Rykoff, by Stanley Fleishman, Hollywood, Cal., for plaintiff.
Laughlin E. Waters, U. S. Atty., by Frederick M. Brosio, Jr., Asst. U. S. Atty., Los Angeles, Cal., for defendant.
YANKWICH, District Judge.
The Order to Show Cause, issued on May 13, 1960, why a preliminary injunction should not issue, heretofore heard argued and submitted, is hereby decided as follows:
1. The Order to Show Cause is discharged;
2. The Temporary Restraining Order heretofore issued is hereby dissolved; and
3. A Temporary Injunction is denied.
Formal findings and order under Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A., and Local Rule 7, West's *297 Ann.Code, to be prepared by counsel for the defendants.

Comment
Plaintiff has instituted an action in equity seeking to return to him property which he alleges was illegally seized by certain postal inspectors on May 12, 1960. The defendants are Otto K. Olesen, Postmaster, and Donald Schoof, Postal Inspector. General damages in an unnamed amount and punitive damages in the amount of $15,000, mandatory injunction, return of the property and other equitable relief is asked. The property seized consisted of a typewriter, an adding machine, a sealing machine, check book, motion picture films, index and filing cards, customer lists, and the like. Jurisdiction is predicated chiefly on § 1331, 28 U.S.C.A. Section 1985 of Title 42, the civil rights section, is also referred to.
A review of the record before this court leads to the conclusion that we should decline to interfere with the possession of the property or its use by the defendants, because the plaintiff has an adequate remedy at law, a motion to suppress under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. See, Beal v. Missouri Pacific R. Corp., 1941, 312 U.S. 46, 61, 61 S.Ct. 418, 85 L. Ed. 577; Steiner v. Hocke, 9 Cir., 1959, 272 F.2d 384; Hoffritz v. United States, 9 Cir., 1956, 240 F.2d 109, 111-112; Rodgers v. United States, D.C.S.D.Cal. 1958, 158 F.Supp. 670, 683-684.
An Indictment for violation of § 1461 of the United States Penal Code (18 U.S. C. § 1461) was returned against the plaintiff on April 22, 1960, in the United States District Court for the Northern District of Texas, Dallas Division. Six counts of mailing unmailable matter were contained in the Indictment, alleging mailings at Los Angeles to different persons in the Texas district. This was done under the 1958 amendment to the section which allows prosecutions either in the district of mailing or the district of delivery. The object of this statute is
"to make it possible to prosecute violators of section 1461 of title 18 of the United States Code (mailing of obscene or crime-inciting matter) not only at the place at which the objectionable matter is mailed, but also at the place of address or delivery." (Senate Report No. 1839, U.S.Code Congressional and Administrative News, 1958, Vol. 2, p. 4012.) (Emphasis added.)
A telegraphic warrant was placed in the hands of the United States Marshal for the Southern District of California. One of his deputies served the warrant, arrested the plaintiff with the aid of the postal inspectors. The search and seizure were incidental to the arrest.
On the basis of the affidavits filed, I am of the view that the search and seizure were proper, as incidental to a lawful arrest. The matters seized, except those that have been returned or agreed to be returned, related to the instrumenalities of the offense,  the knowing use of mail for transmission of obscene and unmailable matter. See the writer's opinion in United States v. Bell, D.C. 1943, 48 F. Supp. 986, 995-999; United States v. Lefkowitz, 1932, 285 U.S. 452, 453, 464-467, 52 S.Ct. 420, 76 L.Ed. 877; Harris v. United States, 1947, 331 U.S. 145, 153-155, 67 S.Ct. 1098, 91 L.Ed. 1399; Abel v. United States, 1960, 362 U.S. 217, 235-237, 80 S.Ct. 683, 4 L.Ed.2d 668; Leahy v. United States, 9 Cir., 1959, 272 F.2d 487, 490-491; Williams v. United States, 9 Cir., 1959, 273 F.2d 781, 793-795.
As the Congress has clearly and constitutionally expressed the intent to consider mailing of obscene matter a partly continuous offense by allowing prosecution at either end, we need not concern ourselves with the possible hardship resulting from the exercise of this power. For that affects policy. Our function is merely to give effect to it. Indeed, the court which is to try the case will be in a better position to determine, on a motion to suppress, whether the property *298 seized is of the type that can be used on the trial or order its return than we would be in a suit in equity. And with quicker results.
Hence the ruling above made.


770 A.2d 851 (2001)
Walter VAN CALA
v.
Tiverton GETTY.
No. 00-31-Appeal.
Supreme Court of Rhode Island.
May 4, 2001.
*852 Present WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Walter Van Cala  Pro Se.
Michele M. Lataille, Providence, for Defendant.

OPINION
PER CURIAM.
This case came before the Supreme Court on March 8, 2001, pursuant to an order directing both parties to appear and show cause why the issue raised in this appeal should not be summarily decided. The plaintiff, Walter Van Cala (plaintiff or Van Cala), appealed the grant of a judgment as a matter of law entered in favor of the defendant, Tiverton Getty (defendant or Getty). After hearing the arguments of counsel and reviewing the memoranda submitted by the parties, we are of the opinion that cause has not been shown. Therefore the case will be decided at this time.
This case arose from an alleged slip and fall occurring at defendant's service station on May 13, 1996. On February 27, 1997, Van Cala filed a personal injury action against defendant, seeking to recover for injuries he allegedly suffered from the fall. The complaint included a demand for a jury trial. In its answer to the complaint, defendant also demanded a jury trial.
*853 On December 7, 1999, the case was reached for trial in Newport County Superior Court. However, a nonjury trial was held in which plaintiff appeared pro se. At the close of the plaintiff's case, defendant moved for a judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules ofCivil Procedure. The trial justice granted defendant's motion, finding that plaintiff failed to establish a prima facie case of negligence and had not produced any evidence to support his claim. An order and a judgment were entered to that effect on January 12, 2000. The plaintiff filed a timely appeal.
On appeal plaintiff, again appearing pro se, asserted that he was denied his right to a jury trial. In addition, he alleged that defendant's attorney had engaged in an ex parte communication with the trial justice before the trial began. However, with the exception of this bald allegation, plaintiff had failed to point to any record evidence to support this claim. Further, defense counsel vigorously denied that an ex parte communication with the trial justice occurred in this case. We accept this representation. Based on plaintiff's failure to point to any record evidence to support this alleged communication, we conclude that this claim is devoid of merit; therefore, we shall address only plaintiff's assertion that he was denied his right to a trial by jury.
Although defendant conceded that Van Cala did, in fact, demand a trial by jury, defendant argued that plaintiff's failure to renew his demand for a jury trial on the day of trial amounted to a waiver that was fatal to his appeal. In Rhode Island, "the constitutional right to have issues of fact determined by a jury is preserved as it existed at common law at the time of the adoption of our original constitution in 1842 * * *." Egidio Dipardo & Sons, Inc. v. Lauzon, 708 A.2d 165, 171 (R.I.1998); see also In re McCloud, 110 R.I. 431, 435, 293 A.2d 512, 515 (1972); Mathewson v. Ham, 21 R.I. 311, 314, 43 A. 848, 849 (1899), overruled in part with respect to criminal trials; State v. Holliday, 109 R.I. 93, 104 n. 2, 280 A.2d 333, 339 n. 2 (1971). Further, article 1, section 15, of the Rhode Island Constitution guarantees that "[t]he right of trial by jury shall remain inviolate." Bendick v. Cambio, 558 A.2d 941, 943 (R.I.1989) (quoting Briggs Drive, Inc. v. Moorehead, 103 R.I. 555, 557, 239 A.2d 186, 187 (1968)). In addition to this constitutional guarantee, a claimant's right to a trial by jury also is preserved under Rule 38 the Superior Court Rules of Civil Procedure.[1]*854 Once a demand for a jury trial is made pursuant to Rule 38(b), Rule 39(a) provides the only mechanism in which the parties or the court may waive a prior jury trial demand.[2] Moreover, although one party may consent to the waiver of a jury trial, this Court has held that consent of all parties is required for a valid waiver. See Blazar v. Perkins, 463 A.2d 203, 207 (R.I.1983) (once one party requests a jury trial, "the consent of all parties is required to waive a trial by jury on the issues demanded").
In the case before us, both parties demanded a jury trial. The plaintiff properly demanded a trial by jury in his complaint, and defendant made a similar demand in its answer. Before this Court neither party has asserted that it waived its right to a jury trial; nor was a stipulation filed with the court consenting to a waiver of a jury trial. The record is devoid of any stipulation written or otherwise by the parties relative to a waiver of a jury. Moreover, the trial justice made no finding that the issues before her were inappropriate for determination by a jury.
Therefore, consistent with the state constitutional guarantee, we conclude that once a proper demand for a trial by jury has been made, that right shall be preserved. The right to a trial by jury is not waived unless one of the requirements set forth in Rule 39(a) is satisfied. Nor is a party who has properly asserted a demand for a jury trial required, under Rule 38, to renew such a demand on the date of trial. Based on the above, we are of the opinion that the plaintiff's right to a trial by jury was denied and plaintiff is therefore entitled to a new trial.
For the reasons set forth herein, the plaintiff's appeal is sustained. The judgment is vacated and the papers in this case are remanded to the Superior Court in accordance with this opinion.
NOTES
[1]  Rule 38 of the Superior Court Rules of Civil Procedure provides in pertinent part:

"Jury trial of right.  (a) Right Preserved. The right of trial by jury as declared by Article I, Section 15 of the constitution of this state or as given by a statute shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by
(1) serving upon the other parties a demand therefor [sic] in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and
(2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
(c) Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
(d) Waiver. The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without consent of the parties. (As Amended September 5, 1995.)"
[2]  Rule 39 provides in pertinent part:

"(a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless
(1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or
(2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the constitution or statutes of this state."


55 Cal.App.3d 1039 (1976)
128 Cal. Rptr. 374
ALICE et al., Plaintiffs and Appellants,
v.
DEPARTMENT OF SOCIAL WELFARE et al., Defendants and Respondents.
Docket No. 13807.
Court of Appeals of California, Third District.
March 3, 1976.
*1040 COUNSEL
Charles R. Baumbach, Cecilia D. Lannon, David B. Bryson, Norman S. Nayfach, Burton Danziger, Fred H. Altshuler, Richard Hirsch and Diamond, Savitt & Mellini for Plaintiffs and Appellants.
Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, N. Eugene Hill, Deputy Attorney General, Daniel V. Blackstock, County Counsel (Butte), James R. Griffith, Deputy County Counsel, Douglas J. Maloney, County Counsel (Marin), Thomas G. Hendricks, Chief Deputy County Counsel, Howard E. Gawthrop, County Counsel (Santa Cruz), and A. Terry Slocum, Assistant County Counsel, for Defendants and Respondents.
OPINION
THE COURT.[*]
In this action Alice[1] filed a petition for a writ of mandate and a complaint for declaratory relief on behalf of herself and a class of plaintiffs consisting of all female minors "(a) over the age of 15 years, living separate and apart from their parents, and managing their own financial affairs so as to be emancipated within C.C. § 34.6; and (b) eligible for medical assistance and Medi-Cal benefits under the Aid for *1041 Families with Dependent Children program (hereinafter AFDC) since they are needy and deprived within the meaning of applicable federal and state statutes and regulations; and (c) being denied access to urgently needed medical care and attention by defendants who rely on the certain state welfare policies and procedures more particularly described below to deny the class eligibility for medical assistance and Medi-Cal. Such class may be divided into: (i) those women whose urgent medical and surgical need is for termination of pregnancy pursuant to the Therapeutic Abortion Act; and (ii) those whose pregnancy will not be terminated and whose urgent need is for prenatal care to protect their health and safety and that of their unborn children."
Barbara and Sharon sought leave to and were granted permission to intervene as members of the class.
The answering defendants are the State Department of Social Welfare (SDSW)[2] (the agency charged with administration of the welfare laws, including the AFDC program), the Director of the State Department of Social Welfare, Marin County Department of Public Services and Butte County Department of Social Welfare.
At trial, judgment was for defendants.

FACTS
Alice, Barbara and Sharon each applied in their respective counties for AFDC assistance, specifically for medical attention with respect to their pregnancies. Each of them was an unmarried minor over the age of 15 living apart from her parents, and managing her own affairs, so as to be emancipated under Civil Code section 34.6. Each was refused medical assistance (Medi-Cal) in connection with her AFDC application for the reason that she refused to consent to contact being made with her parents by the county welfare authorities. Two of the girls, Alice and Barbara, sought medical aid for a therapeutic abortion and each had qualified for such under the abortion laws. The other girl, Sharon, had not yet determined whether or not she qualified for a therapeutic abortion, but she sought AFDC medical aid to so determine and for prenatal care if she was not certified as qualified for an abortion. None of the girls sought cash grants under AFDC for their general maintenance and support, but *1042 only for medical assistance relative to pregnancy under the Medi-Cal program.
The trial court found that Alice, Barbara and Sharon have raised questions in this action of common and general interest to the class they represent as a whole, and that the interests of Alice are identical to those of the other members of the class. The court upheld, however, the practice of the state and various county welfare departments of contacting parents and revealing pregnancies where deemed necessary and of refusing Medi-Cal aid to such applicants who refuse to agree or consent that such parental contact may be made where deemed necessary by the welfare authorities. The practice approved by the trial court was based upon a 1970 directive of the SDSW contained in a letter signed by Robert Martin, then the director of SDSW, and dispatched to the county welfare directors. This directive set forth "guidelines" or requirements to be followed with respect to cases of the type with which we are here concerned. The applicable portion of the directive required the counties to do the following:
"Determine what contribution the minor is in fact receiving from her parents and the unborn child's natural father. Evaluate the amount in light of their ability to provide support. Determine ability to support in the manner specified for use in stepfather or absent parent cases, using information supplied by the daughter.
"If the daughter refuses to provide the necessary information, or refuses to give her consent to allow the county to contact her parents or the child's father regarding their obligation to provide support, advise the unwed pregnant minor that she is ineligible for AFDC because she does not meet the conditions set forth in Regulation Sections 44-103.212 and 44-103.23 (Exploration of Income Potentials, Applicant and Recipient Responsibility)."[3] The letter in question was prefaced by a statement correctly making it clear that the AFDC referred to can include Medi-Cal eligibility relating to pregnancy and the unborn child. (See Welf. & Inst. Code, §§ 14005, 14005.1.)
*1043 Alice contends that the procedure or policy of parental contacts applied to her violates Welfare and Institutions Code section 14010. That section of the code was enacted by the Legislature in 1971, a few months after the 1970 directive of the SDSW referred to hereinabove.
Section 14010 reads as follows: "Notwithstanding any other provision of law, the parent or parents of a child under 21 years of age shall not be held financially responsible, nor shall financial contribution be requested or required of such parent or parents for health care or related services to which the child may consent without the need for parental consent under any express provision of law."
It is to be noted that a "child," such as Alice, who was an unmarried pregnant minor, had previously been authorized by the Legislature in statutes enacted in 1953 and in 1968, to consent to medical and surgical care related to her pregnancy. (Civ. Code, §§ 34.5, 34.6.) It is undisputed by any party that a minor may consent to an abortion without parental contact or consent. (See Ballard v. Anderson (1971) 4 Cal.3d 873, 878 [95 Cal. Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392].)
The trial court held section 14010 inapplicable to persons in Alice's circumstances, because as long as Medi-Cal benefits were tied to AFDC, the applicant's resources must be explored, and among the possible resources are the parents of the applicant.
Alice does not contend that the welfare departments are prohibited by section 14010 or any other law from contacting an emancipated, pregnant minor's parents when such contact is necessary to determine whether she receives or has available financial support from them. She agrees that consent to contact parents may properly be requested of some applicants for medical aid in specific instances where the information supplied by the applicant regarding her eligibility is incomplete, unclear or inconsistent. This is in conformance with state rules. (See EAS 40-157.3.31; EAS 40-157.4.) But even though Medi-Cal for Alice was a part of AFDC, there is no requirement in any federal or state law, or regulation, rule or standard which would require parental contact in an Alice case, because the information Alice supplied was not incomplete, unclear or inconsistent as to her parents. She stated in writing that her father was dead; that her mother was ill and on both welfare aid and Medi-Cal. She also gave her mother's address.
*1044 Defendants and respondents explain the SDSW directive as requiring an applicant for any aid (including Medi-Cal abortion aid) to be a needy person and that the consent to check with the parents of the Alice class was for the purpose of determining need. They further claim that section 14010 does not change the AFDC requirements which apply equally to minors and adults, i.e., to be eligible for any aid (including Medi-Cal abortion) they must be eligible for support whether or not it is sought. Defendants and respondents conclude parental contact is essential to determine any income potential for welfare purposes.
Alice's position on appeal in light of the foregoing, and particularly in reference to section 14010, is that the SDSW directive requirement of consent to parental contact as a condition of medical aid where no support money is requested or needed is contrary to the meaning of section 14010. Her reasoning is that (1) she has requested "health care or related services" within the meaning of section 14010; (2) her parents are not liable for any financial contribution to such services under that section; (3) there is a specific prohibition against the parents even being "requested" to pay or contribute for such services; and (4) it follows that under section 14010 her consent is at most an idle act and the effect of the rule set forth in the SDSW directive is to harass persons in Alice's position into abandoning their applications because of fear or shame of having an ill or impoverished parent know of their condition. There is evidence in the record that this is the actual effect of the directive and that some severe medical problems and traumas have resulted from application of this directive. There was expert testimony of the sometimes devastating effects resulting from lack of medical attention, including attempts at self-abortion.
The trial court concluded that the consent to parental contact required by the directive was not being sought for the purpose of requesting or requiring any payment for Medi-Cal health or related services contemplated by the language of section 14010. (1) The court concluded that Medi-Cal benefits, as tied in with eligibility for AFDC, required that the consent to parental contact be sought to determine whether the parents could or would become financially supportive of their daughter. We disagree with the trial court with respect to situations where there is no question but that no support money had been requested.
Section 206 of the Civil Code requires parents to "maintain" children under certain circumstances. That section provides in relevant part: "It is the duty of the father, the mother, and the children of any person in need *1045 who is unable to maintain himself by work, to maintain such person to the extent of their ability.... A person who is receiving aid to the aged shall be deemed to be a person in need who is unable to maintain himself by work." However, California's welfare laws do not require consent to parental contact, as demanded by SDSW, as a condition of aid in situations such as those in which we find Alice, Barbara and Sharon. Section 206 is not in conflict with section 14010 of the Welfare and Institutions Code which removes any possibility that health care costs, including medical abortion, are "maintenance" or support. (See Swoap v. Superior Court (1973) 10 Cal.3d 490, 502 [111 Cal. Rptr. 136, 516 P.2d 840]; County of San Bernardino v. Simmons (1956) 46 Cal.2d 394, 398-400 [296 P.2d 329]; Welf. & Inst. Code, §§ 14008.5, 11350; EAS 43-117, 43-119.) Therefore, the judgment in this case denying the petition for writ of mandate to prohibit application of the SDSW directive to Alice, Barbara, Sharon and their class is erroneous and must be reversed.[4]
Alice raises two contentions involving alleged violations of constitutional rights in the denial of Medi-Cal assistance to her and the class represented by her and by Barbara and Sharon.
We do not reach the constitutional issues raised by plaintiffs for a very fundamental reason. (2) Since we have arrived at a decision to reverse based on a nonconstitutional ground, we are foreclosed by long-established policy and principle set by both the United States and California Supreme Courts that when a decision has been reached to reverse on other grounds the court will not decide a constitutional question raised in the appeal. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65-66 [195 P.2d 1].)
The judgment is reversed and the trial court is directed to enter judgment granting the peremptory writ and declaratory judgment as prayed for in the complaints filed in this action, and in conformity with this decision.
NOTES
[*]   Before Regan. Acting P.J., and Janes. J.
[1]  The fictitious names "Alice," "Sharon," and "Barbara" have been used by stipulation of the parties, and continued by this court in lieu of the normal party designations, in order to protect the actual identities of the petitioner and plaintiffs in intervention.
[2]  Department of Social Welfare has been changed to Department of Benefit Payments; we will use the department's earlier designation throughout this opinion.
[3]  The reference to regulation sections 44-103.212 and 44-103.23 are to Eligibility and Assistance Standards (EAS). The two references are to provisions requiring the county to explore potential income to an applicant and providing that the applicant is responsible "for taking all actions necessary to obtain unconditional available income" and that an applicant is ineligible for aid if refusing to accept unconditionally available income. The concept here of course is that the parents or parent of the unwed minor would be contacted to determine their financial ability to assist in support of the unwed pregnant minor.
[4]  We emphasize that our decision has no bearing on any case in which an emancipated, unwed, pregnant minor applies for AFDC support or maintenance aid in addition to medical aid related to her pregnancy.