Citation Nr: 1306282 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 07-28 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral leg disability, to include residuals of a cold injury and blood clots. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to August 1992. He received the Army Commendation Medal. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, the RO denied entitlement to service connection for a cold injury to the left leg and bilateral blood clots of the legs. The RO in St. Petersburg, Florida currently has jurisdiction over the Veteran's claim. In his September 2007 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). In August 2012, the Board remanded this matter to schedule the Veteran for the requested hearing. A Board hearing was scheduled for a date in January 2013 and the Veteran was notified of the date and time of the hearing in a letter dated in December 2012. This letter was sent to his address of record and was not returned as undeliverable. A copy of the letter was also sent to the Veteran's representative. The Veteran failed to appear for the scheduled Board hearing. He has not explained his absence or requested to reschedule the hearing. Thus, his appeal will be processed as if he withdrew the hearing request. 38 C.F.R. § 20.704(d) (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection 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) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. In this case, the Veteran reported in his January 2005 claim (VA Form 21-526) and in an April 2006 statement (VA Form 21-4138) that he experienced blood clots in both legs and left leg skin ulcers. Also, an August 2007 letter from Kellie Rose, M.D. reflects that the Veteran had a known hypercoaguable state of protein C and S deficiency which predisposed him to blood clots. This problem was genetic and required lifelong treatment. Thus, there is competent evidence of a current bilateral leg disability. Service treatment records include an October 1988 report of treatment for left calf coldness and pain. A diagnosis of left calf pain was provided. In March 1989, the Veteran was treated for a 6 month history of left leg numbness. However, there were no objective signs of any abnormal pathology. Also, in October 1990 he was treated for left lower leg/calf pain. The pain started slightly above the medial malleolus and radiated to the calf. Examination revealed that the involved area was tender to palpation. He was diagnosed as having a soft tissue strain and was placed on profile for 5 days. Moreover, the Veteran has reported that he sustained a cold weather injury to the left leg in January 1989 while stationed at Fort Jackson, South Carolina. At that time, he was participating in an overnight field exercise and his left leg was exposed to cold weather while he was sleeping. Upon awakening, his leg was cold, numb, and pale and he began to experience pain as the leg became warmer. He contends that he has experienced blood clots in the legs ever since service. On a January 1993 report of medical history for purposes of a National Guard annual examination, the Veteran denied having or having had swollen or painful joints, cramps in the legs, lameness, etc. The January 1993 examination, which included the vascular system and the lower extremities, was normal with the exception of blood pressure problems. In an August 2007 letter, Arcot D. Suresh, M.D. reported that he had treated the Veteran for a pulmonary embolism in July 1994 and that a diagnosis of Protein C and S deficiency was provided at that time. He opined that the reported cold weather injury in service "could have" played a role in the Veteran's deep vein thrombosis of the lower extremities or pelvis, which subsequently resulted in a pulmonary embolism. However, he could not be absolutely sure of this conclusion. An August 2007 letter from Peter C. Weber, M.D. includes an opinion that the Veteran's reported cold weather injury in service "may have" contributed to a possible deep vein thrombosis due to vascularity changes. This opinion was based on the fact that it was fairly well known that cold injuries could cause injuries to some of the blood vessels in the area of the injury. Such injuries could result in chronic changes in the vascularity, which may increase one's susceptibility to deep vein thrombosis. Since some of the changes in the vascularity may be permanent, this might increase the tendency for deep vein thrombosis. However, there were no known studies directly relating deep vein thrombosis to a previous cold injury. Additionally, in the August 2007 letter, Dr. Rose opined that although it was unknown whether the Veteran had experienced a blood clot immediately following his reported cold weather injury in service, any injury, illness, or immobility "could contribute" to clot formation. This was especially the case for a person with a high predisposition to clots, such as the Veteran. In sum, there is competent evidence of a current bilateral leg disability, treatment for leg problems in service, a reported cold weather injury to the left leg in service, and reports of a continuity of leg symptomatology in the years since service. Also, there are medical opinions which reflect that the Veteran's leg problems may be related to service. However, these opinions are equivocal. VA's duty to obtain an examination as to the nature and etiology of any current bilateral leg disability is triggered. Such an examination is needed to determine whether the Veteran has a current bilateral leg disability and to obtain a medical opinion as to whether any such disability is related to service. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The August 2007 letter from Dr. Rose reflects that the Veteran had been examined by this physician with respect to his vascular problems in May 2006. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not specifically been taken with regard to any relevant treatment records from Dr. Rose and there are no treatment records from that physician in the claims file or among the Veteran's paperless records in the Virtual VA system. Thus, a remand is also necessary to attempt to obtain any relevant treatment records from Dr. Rose. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a bilateral leg disability from Dr. Rose. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim, and he shall be advised to submit any records in his possession. All such notification must be documented in the claims file. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current bilateral leg disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. For any current leg disability identified (i.e. any leg disability diagnosed since January 2005), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in service, is related to any of the Veteran's leg problems in service, is related to his reported cold weather injury to the left leg in service, or is otherwise the result of a disease or injury in service. The examiner shall also indicate if any diagnosed leg disability, whether diagnosed in service or not, is a developmental or congenital condition. If any leg disability is a developmental or congenital condition, the examiner shall indicate whether the condition is a development/congenital defect or disease. In answering the above questions, the examiner must specifically acknowledge and discuss any leg disabilities diagnosed since January 2005, all instances of treatment for leg problems documented in the Veteran's service treatment records, his reported cold weather injury to the left leg in service, his reports of leg symptoms in the years since service, and the August 2007 opinions provided by Dr. Rose, Dr. Suresh, and Dr. Weber. For purposes of the above opinions, the examiner shall presume that the Veteran's reports of a cold weather injury to the left leg in service are accurate. The examiner must provide reasons for each opinion given. 3. If any benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. Thereafter, the case shall be returned to the Board, if in order. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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. 2012). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).