Citation Nr: 1305187 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 08-14 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE 1. Entitlement to service connection for chronic residuals of Coumadin(r) usage, other than for left leg venous insufficiency, to include as secondary to treatment for service-connected thrombophlebitis with varicose veins in the right leg. 2. Entitlement to an initial disability evaluation in excess of 30 percent for service-connected depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in from August 1951 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The case has been before the Board on a prior occasion, and was remanded in August 2012 for evidentiary development. All actions required by the remand have been fulfilled. A separate Board decision, dated in August 2012, denied entitlement to service connection for venous insufficiency in the left leg, which was also claimed as due to Coumadin(r) usage. The Veteran's entire claims file, to include the portion contained in the electronic Virtual VA system, has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a higher initial rating for depression 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. FINDING OF FACT The Veteran does not experience chronic residual disability as a result of his usage of Coumadin(r) to treat his service-connected thrombophlebitis with varicose veins. CONCLUSION OF LAW The criteria for service connection for chronic residuals of Coumadin(r) usage, other than for left leg venous insufficiency, to include as secondary to treatment for service-connected thrombophlebitis with varicose veins, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Additionally, and most relevant in this case, disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. See 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). The Veteran in this case has thrombophlebitis, and this disorder has been service-connected. For the condition, the Veteran must take Coumadin(r), which is an anti-coagulant drug. A prior Board decision, dated in August 2012, denied service connection for venous insufficiency in the left leg. A remand by the Board, also dated in August 2012, ordered that a medical opinion be afforded addressing any potential residuals of Coumadin(r) usage, save for those associated with venous insufficiency in the leg, which might currently be present. Indeed, it was specifically asked if there were any current disabilities present as a result of the Veteran taking Coumadin(r) for his service-connected thrombophlebitis of the right leg (with varicose veins). The Veteran was afforded a VA examination in connection with this remand in September 2012. The Veteran has alleged that he has anxiety and fear as a result of taking his prescribed Coumadin(r). The Veteran is in receipt of service-connected compensation benefits for depression, which contemplates his apprehension/anxiety regarding taking his medication, and thus this manifestation is already considered in an established compensable rating. In this regard, it is important for the Veteran to understand that even if service connection was granted for anxiety and fear as a result of taking his prescribed Coumadin(r), this would not providing the Veteran any additional compensation as he is already service connected for this problem and cannot be service connected twice for the same disability. With regard to other complications, the Veteran has submitted a statement alleging bruising, rectal bleeding, numbness, tingling, and muscle pain as a result of Coumadin(r) usage. As noted, the Veteran was afforded a VA examination in September 2012. The Veteran's numbness and tingling has been previously reported, and the Board, in its earlier August 2012 decision, determined that venous insufficiency in the lower extremity was not service-connected. Indeed, that decision noted the Veteran's use of compression stockings and his complaints of foot pain and edema, and an August 2012 VA examination attributed aching, lower extremity fatigue, stasis pigmentation, and eczema to that nonservice-connected disorder. The Veteran, subsequent to the September 2012 examination, complained that the his skin manifestations on the legs were not addressed by the VA examiner. In this regard, it is noted that the Veteran did not report his alleged bruising, as it was his belief that he was "only discussing Coumadin(r) side effects" with the examiner. In other words, the Veteran has relayed his belief that discoloration in the legs, presumably inclusive of his reported bruising, was not a manifestation he felt attributable to Coumadin(r), so he did not make mention of it during the examination. As his claim revolves around his belief that he experiences significant side-effects of Coumadin(r) (i.e. enough to result in chronic, residual disability), his specific denial of manifestations existing as side-effects, while in a consultation with a medical professional, is significant. Indeed, at the time of the examination, the Veteran did not make mention of bruising or other lower extremity skin discoloration, as he felt that these symptoms were, in his view, not attributable to Coumadin(r) usage. The examiner, who conducted a full objective examination of the Veteran specifically for the purpose of addressing Coumadin(r) side-effects (as they relate to the diagnosis of a chronic disability), also did not note any bruising, discoloration, or muscle symptomatology as a specific manifestation associated with the medication usage. The lack of complaint in a medical context, when considered in light of other complaints forwarded with the claim for compensation, presents an inconsistency, and it weighs against the veracity of the Veteran's assertions. Additionally, as stasis pigmentation and eczema (and other lower extremity symptoms) were considered in the August 2012 VA examination as associated with nonservice-connected venous insufficiency in the left leg, even if such a manifestation was present and not discussed in September 2012, it would not represent a chronic residual disability associated with Coumadin(r) usage. Indeed, the only symptom the Veteran reported at his 2012 examination, exclusive of those related to the lower extremities, was his assertion of rectal bleeding. The examiner stated that rectal bleeding was more likely related to internal hemorrhoids and radiation therapy due to its recent occurrence. Upon examination of the Veteran and a review of the complaint history, the examiner determined that there was insufficient clinical evidence or laboratory evidence to warrant a diagnosis of chronic complications of Coumadin(r). The examiner explained that, according to medical literature, warfarin (the generic name for Coumadin(r)) can cause "major or fatal bleeding" during "the starting period and with a higher dose." The examiner went on to explain that the Veteran did not exhibit risk factors for this type of bleeding, and as noted, linked his "minimal" rectal bleeding to other, nonservice-connected causes. The examiner specifically noted that the Veteran did not have stains in his undergarments, and there was no hospitalization associated with rectal bleeding. The Veteran has stated that his undergarments were "black" with blood at the time of the examination; however, given that it is apparent the examiner viewed the affected area, such an assertion is found to be not accurate. There are issues as to the Veteran's accuracy with regard to his alleged symptoms. Indeed, at the 2012 examination, he did not report skin abnormalities or muscle pains, and his description of rectal bleeding as being so profuse as to blacken his undergarments has been specifically rebuffed by the examiner's report. Indeed, upon objective examination, the only symptom found to even potentially be present was "minimal" rectal bleeding, and that manifestation was attributed to nonservice-connected factors, providing evidence against this claim of high probative weight. It is noted that the Veteran submitted, in January 2013, a statement alleging recent private treatment for vein cauterization in his rectum. He stated that he was required to stop Coumadin(r) usage prior to this procedure, and that there was residual bleeding following the procedure and his resumed taking of his medication. The Veteran also disagreed with the September 2012 examiner's assessment that his bleeding was due to hemorrhoids, and he expressed his opinion that it was due to radiation therapy for prostate cancer. With regard to this assertion, the Board notes that the September 2012 examiner did attribute minimal rectal bleeding to cancer treatment, and that prostate cancer is not a service-connected condition (i.e. any bleeding associated with the disorder would not result in compensation for the Veteran). Even assuming, arguendo, that the Veteran's Coumadin(r) usage, prescribed to treat service-connected thrombophlebitis, did cause minimal bleeding, the Veteran's recent alleged venous cauterization does not include an allegation of being diagnosed with a chronic rectal disability as associated with this medication. Indeed, such treatment would simply be a reiteration of symptoms which have already been noted in the record, and it does not establish the presence of a disability for which service connection can be granted. The Board is charged with the duty to assess the credibility and weight given to evidence. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995) (emphasis added). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran's allegations are inconsistent, are more severe when in the context of an application for benefits, and with regard to the severity of alleged bleeding, are specifically contradicted by medical findings. Accordingly, the Veteran is found to lack accuracy in his assertions of symptoms. Thus, the Board must rely on the findings of the September 2012 VA examination as definitive. The examination report is well-rationalized and is based on a review of medical literature as well as an objective examination of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). This examination found that there are no chronic residuals associated with Coumadin(r) usage present in the Veteran (which is prescribed for a service-connected disability). Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service" (or, by analogy, a relationship to a service-connected disability). Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit). Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board also recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can support a grant of service connection if there is a relationship to service (or, in this case, to a service-connected disability), even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as in this case, there is no credible evidence of chronic residuals of Coumadin(r) usage during the claim period, that holding is inapplicable. It is noted that the Veteran has also reported having to alter his daily habits, to include not eating certain foods and abstaining from alcohol, as due to his prescription. Such factors are precautionary measures and lifestyle choices. To the extent that such choices represent fears/anxiety associated with usage of the drug, such manifestations have, as noted, been considered in the rating assigned for service-connected depression. The only evidence supportive of the Veteran's claim consists of the statements of the Veteran himself. The Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Establishing the existence of chronic residual disability as a result of Coumadin(r) usage is something that is complex in nature, and it is beyond the abilities of a layman. See Jandreau at 1372. Thus, in this case, the Veteran not only lacks competence, but also has credibility issues with regard to his assertion that he experiences chronic residual disability of Coumadin(r) usage as a result of treating his service-connected thrombophlebitis with varicose veins. As the only other relevant evidence addressing this contention ( the September 2012 VA examination report) is decidedly against there being any residual disability, the evidence is not, at the very least, in relative equipoise, and the claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service (or, in this case, service-connected disability) and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by the Disabled American Veterans (DAV), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period (or, in this case, presence of a service-connected disability alleged to be related to the claimed disability); (3) an indication that the disability or symptoms may be associated with service (or, as in this case, a service-connected disability); and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" 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. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Indeed, regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. Furthermore, the Veteran has been afforded a comprehensive VA internal medicine examination to address his contentions. While the Veteran has alleged treatment for vein cauterization in January 2013, and those records are not in the claims file, he has maintained that this treatment was for symptom management, and has not alleged that the records represent a chronic rectal disability as associated with Coumadin(r) usage. Thus, there is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). ORDER Entitlement to service connection for chronic residuals of Coumadin(r) usage, other than for left leg venous insufficiency, to include as secondary to treatment for service-connected thrombophlebitis with varicose veins in the right leg, is denied. REMAND The Veteran was awarded service connection for depression in a May 2012 rating decision. A 30 percent evaluation was established at this time, and the basis of the award was that the Veteran experienced depressed mood, anxiety, and sleep impairment associated with his service-connected thrombophlebitis of the right leg. The Veteran, in a September 2012 VA internal medicine examination, was offered a psychological evaluation subsequent to making complaints to the examiner; however, he declined to be separately evaluated. This evidence suggests that the internal medicine examiner noticed heightened psychological manifestations within a year of the assigned 30 percent rating. The Veteran, as noted, declined to have a separate mental health examination at that time, so the exact nature of impairment is unknown. Following this, the Veteran submitted several statements which indicate that he still experiences fear/anxiety as a result of his medication usage (Coumadin(r)) to treat his service-connected thrombophlebitis. In January 2013, the Veteran, in response to the supplemental statement of the case (SSOC) for the issue decided above, seemed to maintain that his fear and anxiety are substantially problematic. Indeed, he maintains that the fears associated with Coumadin(r) usage to treat his service-connected thrombophlebitis amount to having a "loaded gun" pointed at him, and that this is debilitating. The Veteran's service-connected depression contemplates his fears associated with Coumadin(r) usage. The Veteran's continued submission of statements attesting to a high level of anxiety associated with the usage of the drug are, when taken in a light most favorable to the Veteran, representative of a notice of disagreement to the rating assigned for depression in May 2012. As the collection of statements were received within a year of the assignment of the initial rating, they represent a timely notice of disagreement, and this places the appeal in appellate status. See 38 C.F.R. § 20.201 (communication expressing dissatisfaction with RO decision and desire to contest the result constitutes a notice of disagreement; special wording not required); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (VA has always been, and will continue to be, liberal, in determining what constitutes a notice of disagreement). A statement of the case has not been issued regarding this claim, and a remand is necessary so that such a document may be issued. The filing of a notice of disagreement initiates the appeal process. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: With respect to the timely notice of disagreement filed with the initial rating assigned for service-connected depression, issue an appropriate statement of the case to the Veteran and his representative. Allow the Veteran to submit additional evidence in support of his claim should he so elect, and provide him information as to how to perfect a substantive appeal to the Board. The Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue. Thereafter, this issue is to be returned to the Board only if an adequate and timely substantive appeal is filed. The appellant has the right to submit additional evidence and argument on the matters 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. 2012). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs