Citation Nr: 1319718 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-44 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for thrombophlebitis, left leg. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. FINDING OF FACT The competent evidence of record does not demonstrate that the Veteran has currently diagnosed thrombophlebitis, left leg, or that thrombophlebitis was present at any point during the claims period, related to active duty. CONCLUSION OF LAW The criteria for service connection for thrombophlebitis, left leg, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The record shows that a May 2007 letter satisfied the duty to notify provisions, to include providing the Veteran with notice of regulations pertinent to the establishment of an effective date and disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the duty to assist the Veteran has been satisfied in this case. The record includes service treatment records, VA treatment records, the VA examination report, and lay evidence. In October 2008, the Veteran was afforded a VA examination in conjunction with his claim. The record demonstrates that the VA examiner reviewed the Veteran's relevant medical history, to include his documented in-service injury and his lay testimony regarding his symptoms during and since separation from service, completed a physical examination and other appropriate testing, and provided an opinion as to the current clinical findings in relation to the in-service injury. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds the examination to be sufficient and adequate for purposes of determining entitlement to service connection. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran and his representative assert that he has thrombophlebitis, left leg, which was incurred in active duty. The Veteran reports that he was hospitalized during active duty for thrombophlebitis, left leg. He asserts that his disability began when he was involved in a tank accident in Germany. He states that the tank hit a huge rock and threw him out of the truck. The Veteran reports that he was treated for the same condition at a VA Medical Center after his separation from service. He asserts that he has experienced symptoms for many years. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service treatment records show the Veteran was hospitalized from September 13, 1976 to September 17, 1976. The Veteran initially complained of pain and swelling in the left thigh. Physical examination revealed erythema and subcutaneous induration of a three inch area along the saphenous vein. The diagnosis was superficial thrombophlebitis, left leg. The Veteran was placed on temporary profile with limitations for 10 days. A September 1976 separation examination shows the Veteran's lower extremities were normal. The Veteran's report of medical history at the time of separation indicated a history of foot trouble and bone or joint deformity, but no other disability was noted including thrombophlebitis of the left thigh or leg. VA treatment records following the Veteran's separation from active duty to the present do not demonstrate complaints of, treatment for, or a diagnosis of thrombophlebitis, left leg. The Veteran asserts that a July 2007 VA treatment record from the VA Medical Center in Houston, Texas, shows he was treated for thrombophlebitis, left leg. The VA treatment record reflects an assessment of a non-healing foot ulcer status post right superficial femoral artery angioplasty. An angiogram revealed mild aortic atherosclerotic disease with patent bilateral renal arteries and patent bilateral common iliac, external iliac, and internal iliac arteries without significant focal disease. The right common femoral and profunda femoral arteries were patent, and the right superficial femoral artery was patent with obvious occlusive disease at the distal superficial femoral artery without total occlusion. The patent right popliteal artery had focal occlusive disease at the level of the knee and one vessel run-off to the posterior tibial artery. The left common femoral and profunda femoral arteries were patent with distal profunda disease, and the left superficial femoral artery was patent with obvious diffuse distal occlusive disease. The patent left popliteal artery had adequate run-off to the posterior and anterior tibial arteries. In October 2008, the Veteran underwent a VA arteries and veins examination. The VA examiner reviewed the Veteran's claims file, to include his service treatment records, VA treatment records, and vascular studies performed by the Houston VA Medical Center. The VA examiner noted the September 1976 in-service diagnosis of superficial thrombophlebitis, left leg. The VA examiner noted the disability had improved since its onset and that the Veteran was not currently being treated for the disability. There was a history of hospitalization at Fort Sill, Oklahoma from September 13, 1976 to September 17, 1976, during which the Veteran received medical treatment for thrombophlebitis. There was no history of vascular trauma, vascular neoplasm, aneurysm, arteriosclerosis obliterans, thromboangiitis obliterans, arteriovenous fistula, varicose veins, post-phlebitis syndrome, erythromelalgia, angioneurotic edema, or Raynaud's phenomenon or syndrome. There was a history of claudication, left leg. Physical examination revealed arteriosclerosis obliterans of the left lower and right lower extremities. There was a superficial ulcer present in the right lower extremity, which was reddened. There was edema of the right lower extremity with a superficial ulcer but no visible or palpable varicose veins. The left lower extremity showed no edema, stasis pigmentation or eczema, ulceration, or visible or palpable varicose veins. Raynaud's syndrome was not present. The VA examiner noted the Veteran claimed a problem of phlebitis of the left leg. The VA examiner diagnosed peripheral arterial disease of the lower extremities. The VA examiner found the Veteran did not have phlebitis or varicose veins and opined that the Veteran did not have a current finding of thrombophlebitis or a condition of the left leg related to the thrombophlebitis diagnosed during active duty. The rationale was that there was no current finding of thrombophlebitis. The VA examiner further explained that the Veteran's current symptoms and findings were due to occlusive peripheral arterial disease, which was unrelated to phlebitis because phlebitis was venous in etiology. The Veteran's service treatment records demonstrate that the Veteran incurred an in-service injury for the purpose of service connection. However, the competent and probative evidence of record does not support the finding that the Veteran has a current diagnosis of thrombophlebitis or any other disability of the left leg related to the in-service injury. First, the Board finds the evidence does not demonstrate a current disability for which service connection may be granted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Thus, in the absence of evidence of a current diagnosis of thrombophlebitis, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the October 2008 VA examiner determined that there were no current findings of thrombophlebitis, phlebitis, or varicose veins. In addition, the Board finds there is insufficient evidence of thrombophlebitis, left leg, during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). The July 2007 VA treatment record only reflects an assessment of a non-healing foot ulcer status post right superficial femoral artery angioplasty, and the other medical evidence of record does not indicate complaints of, treatment for, or a diagnosis of thrombophlebitis, left leg, during the pendency of the appeal. In this respect, the Board is cognizant of the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013). In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In a footnote, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance." The Veteran filed his service connection claim for thrombophlebitis, left leg, in March 2007. The September 1976 medical examination reflects that the Veteran's lower extremities were normal at the time of separation from service. Additionally, a review of the medical evidence dated since the September 1976 separation examination does not demonstrate a diagnosis of thrombophlebitis, left leg, at any point prior to the filing of the March 2007 claim. Here, the only medical opinion of record does not relate a current left leg disability to the in-service diagnosis of superficial thrombophlebitis, left leg. The October 2008 VA examiner determined that the current symptoms and findings were due to occlusive peripheral arterial disease. The VA examiner opined that the occlusive peripheral arterial disease was not related to the in-service diagnosis of thrombophlebitis, left leg, as phlebitis was venous in etiology. The evidence of record does not include a medical opinion that contradicts the October 2008 VA examiner's determinations, and VA may only consider independent medical evidence of record to support its findings and cannot render its own medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, the Board finds the October 2008 VA examination adequate for purposes of determining entitlement to service connection, and as such, the competent medical evidence of record does not demonstrate that the Veteran has a current disability, to include thrombophlebitis, left leg, related to the in-service injury. The Board acknowledges that the Veteran is competent to testify to symptoms that he actually experienced, such as symptoms of constant pain in his left leg since the in-service injury. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). However, while the Veteran's statements have been deemed competent evidence, the Board must also determine whether such evidence is credible. Id. In this respect, the Veteran's statements regarding the diagnosis of and treatment for thrombophlebitis, left leg, since the in-service injury are contradicted by the service treatment records and VA treatment records. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements or consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). With respect to the Veteran's assertions that he has experienced symptoms of constant pain since the in-service injury, the September 1976 medical examination shows the Veteran's lower extremities were deemed normal at the time of separation from service. In addition, the medical evidence dated after separation from service does not demonstrate any complaints of or treatment for thrombophlebitis, left leg. As a result, the Board finds the Veteran's lay testimony not credible regarding his symptoms following the in-service injury. Further, although the Veteran and his representative claim that the Veteran currently has thrombophlebitis, left leg, it is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the diagnosis of thrombophlebitis, left leg, is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. The question of whether the Veteran currently has thrombophlebitis, left leg, does not lie within the range of common experience or common knowledge. It is not shown that the Veteran or his representative is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to a diagnosis of thrombophlebitis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for thrombophlebitis, left leg. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for thrombophlebitis of the left leg is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs