Citation Nr: 1304768 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 06-31 774A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for multiple head traumas. 2. Entitlement to service connection for deep vein thrombosis (claimed as blood clots). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active duty service from January 1978 to May 1978. The Veteran had service in the South Carolina Army National Guard (ANG) from January 1977 to January 1992, where he additionally had active duty for training (ACTDUTRA) service from August 5, 1978 to August 20, 1978; May 26, 1979 to June 9, 1979; April 12, 1980 to April 26, 1980; April 4, 1981 to April 18, 1981; May 15, 1982 to May 29, 1982; May 14, 1983 to May 28, 1983; June 9, 1984 to June 23, 1984; May 18, 1985 to June 1, 1985; May 10, 1986 to May 24, 1986; and, August 1, 1987 to August 15, 1987. These matters come to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a RO hearing in January 2007; the transcript is of record. These matters were remanded in September 2010. At that time, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was referred back to the RO. That issue was subsequently adjudicated and denied by the RO in July 2012. To date, the Veteran has not expressed disagreement with that determination and thus that issue is not presently in appellate status. FINDINGS OF FACT 1. Multiple head traumas were not manifested during the Veteran's active duty or during a period of ACDUTRA, and are not otherwise related to any period of the Veteran's active service . 2. Deep vein thrombosis was not manifested during the Veteran's active duty or during a period of ACDUTRA, and is not otherwise related to any period of the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for multiple head traumas have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). 2. The criteria for an award of service connection for deep vein thrombosis have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in February and March 2006 pertaining to his claims on appeal. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. In October 2010, the Veteran was sent another VCAA letter which also explained what type of information and evidence was needed to establish a disability rating and effective date pertaining to his service connection claims. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was issued in October 2010. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of relevant service and post-service treatment records and providing an examination or medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA is obliged to provide an examination in a service connection claim when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) interpreted the provisions of 38 U.S.C.A. § 5103A(d)(2) as requiring an examination in service connection claims when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The RO did not provide a VA examination or medical opinion with regard to these claims. As discussed below, there is competent evidence of the claimed disabilities. However, there is no credible or competent evidence establishing that an event, injury, or disease occurred during his active duty or a period of ACDUTRA with regard to the claimed disabilities. All necessary development has been accomplished, to include substantial compliance with the September 2010 Board Remand (D'Aries v. Peake, 22 Vet. App. 97, 105 (2008)), and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The evidence of record contains copies of service treatment records from the ANG dated from 1977 to 1991. The evidence of record also contains the Veteran's post-service private treatment records and records from the Social Security Administration (SSA), as requested in the prior remand. The September 2010 remand also instructed the RO to obtain the Veteran's Workers Compensation records and to request the Veteran to identify any private medical providers. The October 2010 VCAA letter requested that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information, pertaining to his Workers Compensation records and other identified medical providers. The Veteran, however, did not respond. On January 21, 2011, a letter was sent to the Veteran requesting that he complete a VA Form 21-4142 pertaining to his Workers Compensation records; the letter was returned as undeliverable. A February 11, 2011 VA Report of Contact reflects telephone contact with the Veteran in which he relayed his current mailing address. The VA letter was resent to the provided address, but the Veteran did not respond. The Veteran's failure to respond to these letters is discussed in the June 2011 supplemental statement of the case (SSOC). The Veteran did not respond to the SSOC. While VA has a duty to assist the Veteran in the development of his claims, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The law also provides that a claimant for VA benefits has the responsibility to present and support the claim. 38 U.S.C.A. § 5107(a). The Board concludes that it has satisfied its duty to assist and in light of the Veteran's failure to respond there is no remaining duty under the VCAA to attempt to obtain any outstanding medical records. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" means active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The term ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term IDT means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection requires competent and credible evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). As detailed in the Introduction, the Veteran served in the South Carolina ANG from January 1977 to January 1992, which included a period of active service from January to May 1978 and subsequent periods of ACDUTRA. Reports of Medical Examinations conducted in October 1981, October 1985, and September 1989 do not reflect any defects or diagnoses pertaining to the claimed disabilities. Service treatment records do not reference any head injury, symptoms associated with head injury, or symptoms associated with deep vein thrombosis. In February 2006, the Veteran filed claims of service connection for multiple head traumas which he stated occurred in September 1999 and April 2003, and a blood clot which he stated occurred in January 2006. The medical evidence of record, to include those associated with his SSA records, repeatedly references the Veteran's report of suffering from head trauma in 1999 when he was hit by a car while riding a bicycle. He also reported injuring his left arm, left leg, and ribs. The medical evidence of record also repeatedly references the Veteran's report of sustaining a fall in April 2004 in which he fell backwards and hit his head. He reported mild headaches problems after that. The Veteran has also reported that this same injury occurred in 2002 or 2003, but the medical evidence does reflect treatment subsequent to a fall in 2004. The medical evidence of record reflects that in January 2006 the Veteran complained of left leg pain Testing revealed acute appearing deep venous thrombosis of the left lower extremity involving the superficial femoral, popliteal, and proximal posterior tibial veins. Thus, based on the post-service medical evidence of record, it is clear that the Veteran's head trauma and injuries and deep vein thrombosis occurred after he was discharged from the ANG. As detailed, he was discharged in 1992 and his head injuries occurred in 1999 and 2004, and his deep vein thrombosis occurred in 2006. Based on the record, the Board must conclude that the clear preponderance of the evidence is against a finding that the Veteran's head trauma and deep vein thrombosis manifested during his active duty or during a period of ACDUTRA, or that residuals are otherwise related to his active duty or a period of ACDUTRA. While the Veteran has submitted several statements and provided testimony at a RO hearing, he has not made any specific assertions of suffering from a head injury or deep vein thrombosis (claimed as blood clots) during his active duty or during a period of ACDUTRA. At the January 2007 RO hearing, the Veteran testified that he had been out of the ANG since 1992 and he suffered from head trauma in 2003 (incident actually occurred in 2004) and that he suffered from a blood clot in 2006. (T. at 3-4.) The Veteran made no assertions that head injuries or blood clots occurred in the years prior to 1992, during active duty or a period of ACDUTRA. The Veteran's lay statements received in 2006 and 2007 do not provide any assertions that he suffered from head trauma or blood clots during his period of active duty or during a period of ACDUTRA. In statements received from the Veteran in October and December 2006, he asserted that he was hit by a car in 1999 and he "had multiple trauma and had to readjust to a new life." (December 2006 lay statement.) He then stated that in 2003 (incident actually occurred in 2004) he had an accident at work and he damaged his cerebral cortex. He reported that in January 2006 he had deep vein thrombosis. He makes no specific assertions as to why he believes that these specific injuries, diseases, and residuals are due to his service in the ANG. He seems to just make general assertions that he should be compensated due to his service in the ANG. Moreover, the medical evidence of record, including his SSA records, do not reference any head injury or deep vein thrombosis/blood clots during his active duty or during a period of ACDUTRA. Such records only reference the post-service 1999 head injury, 2004 head injury, and 2006 deep vein thrombosis. Thus, by the Veteran's own competent and credible admission, he sustained head injuries and deep vein thrombosis many years after he was discharged from the ANG. As the medical evidence of record shows that head trauma, and residuals thereto, was sustained in 1999 and 2004, approximately 7 years and approximately 12 years, respectively, after discharge from the ANG, and deep vein thrombosis was sustained in 2006, approximately 14 years after discharge from the ANG, the Board must conclude that the clear preponderance of the evidence is against a finding that these claimed disabilities manifested during his active duty or during a period of ACDUTRA. The record does not contain any evidence suggesting any relationship between his head injuries, to include residuals, and deep vein thrombosis, with his ANG service. There is no medical opinion to that effect and no other evidence of a continuity of symptoms beginning during his period of active duty or during a period of ACDUTRA. As head trauma/injury and deep vein thrombosis were not shown in service, and the records contain no competent and credible evidence of a causal link between current head trauma residuals and deep vein thrombosis and active duty and ACDUTRA, the preponderance of the evidence is against the claims of service connection. Reasonable doubt does not arise and the claims are denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for multiple head traumas is denied. Entitlement to service connection for deep vein thrombosis, claimed as blood clots, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs