Citation Nr: 1122876 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 08-10 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for osteomylitis, claimed as secondary to cellulitis. 2. Entitlement to service connection for a vascular disability, claimed as secondary to service-connected arthritis of the right ankle and right knee. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to November 1970. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the benefits sought on appeal. When these issues were previously before the Board in December 2009, they were remanded for additional development. The issues are again before the Board for appellate consideration. In this case, the Veteran contends that his vascular disability is the result of falls caused by his service-connected right ankle and right knee disabilities. See May 2009 hearing transcript (T.), pp. 7-8. When neither the veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss direct service connection for a vascular disability. Robinson v. Mansfield, 21 Vet. App. 545 (2008). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In November 2010 correspondence, the Veteran withdrew the issue of entitlement to service connection for osteomylitis, secondary to cellulitis; in May 2011 correspondence, the Veteran representative noted that the Veteran withdrew this claim. 2. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran incurred or aggravated a vascular disability as a result of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran with regard to the issue of entitlement to service connection for osteomylitis, secondary to cellulitis, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. A vascular disability is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In November 2010 correspondence, the Veteran withdrew the issue of entitlement to service connection for osteomylitis, secondary to cellulitis. In May 2011 correspondence, the Veteran's representative noted that the Veteran withdrew this claim. Based on the above, there remain no allegations of error of fact or law for appellate consideration with regard to the issue of entitlement to service connection for osteomylitis, secondary to cellulitis. Accordingly, it is therefore dismissed. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in February 2006, VA informed the Veteran of what evidence was required to substantiate his secondary service connection claim and of his and VA's respective duties for obtaining evidence. In March 2006 correspondence, VA informed the Veteran that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private post-service medical records, an October 2000 determination form the Social Security Administration (SSA) with corresponding records, the transcript of a May 2009 hearing before the undersigned Veterans Law Judge, and the Veteran's statements in support of his claim. The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record. In connection with the Board's December 2009 remand, in October 2010 correspondence VA requested that the Veteran submit any treatment records pertinent to his claimed conditions. The Veteran submitted a single VA Form 21-4142 for numerous different health care providers. In December 2010 correspondence, VA informed the Veteran that his records indicated treatment at St. Francis Hospital in Grand Island, Nebraska; Mitchel County Hospital Emergency on May 28, 2006; and Osborn County Memorial Hospital in November 2000. VA requested that the Veteran complete and return a VA Form 21-4142 for each health care provider. VA specifically asked that the Veteran submit a separate form for each provider and asked that he not put more than one provider on each form. However, the Veteran failed to provide the requested information. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA obtained a VA medical opinion in March 2008. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA report obtained in this case is more than adequate, as it was predicated on a reading of the Veteran's service treatment records, VA medical records and private medical records. It considers all of the pertinent evidence of record, and provides a rationale for the opinion offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran is service-connected for right ankle arthritis and right knee arthritis associated with right ankle arthritis. He has submitted numerous contentions. In essence, he contends that he now has a vascular disability as a result of falls caused by his service-connected right ankle and knee disabilities. During his hearing, he specified that a fall on November 17, 2000, resulted in a pulmonary embolism. He also stated that two falls on November 24, 2000 resulted in heart damage. See T., pp. 7-8. Private medical statements submitted to a private insurance company in 2000 indicate that the Veteran had trouble with falls, in part due to a weak right ankle and weak right side. An excerpt of a VA outpatient treatment report, that does not include its date, provides that the Veteran fell in February 2004 when his right ankle gave away, and that he had a longstanding instability of the right ankle. The Board finds that these medical records do not support the Veteran's claim. They simply do not indicate or even remotely suggest that any of the Veteran's falls resulted in a pulmonary embolism or other vascular disability. A November 2000 VA admission history provides that the Veteran had lost consciousness on November 24 and fallen on his left leg. The past medical history included syncope, non-Q-wave myocardial infarction, possible pulmonary embolism and recurrent falls. The review of systems included recurrent falls. A November 2000 VA discharge summary provides that the Veteran passed out with a loss of consciousness on November 24. The pertinent diagnoses were syncope, non-Q-wave myocardial infarction, probably pulmonary embolism and recurrent falls. A December 2000 VA discharge summary also provides that on November 24 the Veteran became dizzy and fell to his knees once, got back up, and then fell completely to the ground. The pertinent primary diagnosis was non-Q-wave myocardial infarction and syncope. The Board finds that these medical records do not support the Veteran's claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). They relate that at the time he sought treatment, the Veteran stated he fell because he became dizzy or lost consciousness. He did not report that his right ankle or knee gave out. The Veteran stated that he fell on his left leg, not his service-connected right leg. The Veteran did not report that he had fallen on November 17. Finally, the medical records simply do not indicate or even remotely suggest that the Veteran's recurrent falls resulted in a pulmonary embolism. The report of a March 2008 VA medical opinion provides that the examiner reviewed the Veteran's service treatment records, private medical records, and VA medical records. It sets forth the relevant history and the Veteran's subjective complaints. The examiner expressed the opinion that the Veteran's vascular disability was not caused or aggravated by his service-connected right ankle arthritis or right knee arthritis. The examiner explained that the Veteran was a morbidly obese man with multiple comorbid conditions, and that the Veteran was claiming that they were all due to, primarily, his right ankle condition as it had caused him to fall in the past. The examiner stated that the Veteran reported that the right ankle gives out and he falls. The examiner noted that the Veteran did not use any type of stabilizing device such as a brace or walker. The examiner noted that the Veteran claimed that his vascular disease with venous stasis, recurrent episodes of cellulitis, and history of one episode of thrombi formation with pulmonary embolism was due to the ankle condition because of falls. The examiner noted that the etiology of vascular disease was multifactorial. Genetic predisposition, lifestyle, obesity, hyperlipidemis (sic), and hypertension all play significant roles. The examiner stated that the Veteran's vascular disease was far more likely due to his morbid obesity, sedentary lifestyle and elevated lipids than due to falls from an ankle condition. The examiner noted that while thrombi can form secondary to trauma to an extremity, the Veteran had no medical evidence to support a fall resulting in injury to the lower extremity in the days/weeks preceding his hospitalization for pulmonary embolism. The examiner stated that therefore, other prominent risk factors for the formation of pulmonary embolism such as obesity, sedentary lifestyle, vascular disease (all of which the examiner noted that the Veteran demonstrated) must be taken into account. The Board finds that this medical opinion constitutes probative evidence against the Veteran's claim. It is based on a review of the medical record. The examiner explained his opinions by applying medical expertise to specific, detailed findings in the Veteran's medical history. This fact is particularly important, in the Board's judgment, as the references to the Veteran's medical history make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board finds it significant that there is no competent medical evidence to the contrary of the March 2008 VA opinion. The Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing relevant symptoms during or after service). Barr, supra; Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to state that any current vascular disability is etiologically related to falls caused by his service-connected right ankle and right knee disabilities. A layperson is generally not deemed competent to express an opinion on a matter that requires medical knowledge, such as a diagnosis, the question of whether a chronic disability is currently present, or a determination of etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Further, the Board finds that the Veteran's assertions that he fell in November 2000 because of his service-connected right ankle and right knee disabilities are less than credible. See Curry, supra (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). As noted above, in November 2000 the Veteran did not inform his care providers that he fell due to his service-connected right ankle or right knee disabilities. Rather, he stated that he fell because he became dizzy or lost consciousness. While the Board acknowledges that the absence of any corroborating probative medical evidence supporting the Veteran's assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). The Veteran's post-service medical records (containing a medical opinion that his service-connected right ankle and right knee disabilities did not cause or aggravate his vascular disability) outweigh his contentions. In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for a vascular disability, claimed as secondary to service-connected arthritis of the right ankle and right knee. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The issue of entitlement to service connection for osteomylitis, claimed as secondary to cellulitis, is dismissed. Service connection for a vascular disability, claimed as secondary to service-connected arthritis of the right ankle and right knee, is denied. REMAND The Veteran alleges that his service-connected right ankle arthritis and right knee arthritis preclude employment. The Veteran's sole service-connected disabilities are right ankle arthritis, evaluated as 20 percent disabling, and right knee arthritis, evaluated as 10 percent disabling. These evaluations fail to satisfy the initial schedular requirements for consideration of a TDIU rating. 38 C.F.R. § 4.16(a). The October 2000 SSA determination found the Veteran to be disabled as of June 2000. It identified his primary diagnosis as degenerative arthritis bilateral knees, ankles and hands. Although this determination addresses non-service-connected arthritis as well, the Board finds that it is sufficient to require a VA examination to address whether the Veteran's service-connected right ankle arthritis and right knee arthritis render him unable to secure or follow a substantially gainful occupation, including on an extraschedular basis. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16 (2010). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and current level of severity of the Veteran's service-connected right ankle arthritis and right knee arthritis. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history, and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's right ankle arthritis and right knee arthritis render him unable to secure or follow a substantially gainful occupation, including on an extraschedular basis. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16 (2010). A complete rationale for all opinions expressed must be provided. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs