Citation Nr: 1319931 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 07-28 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a low back disability as secondary to the service-connected knee disabilities. 2. Entitlement to service connection for fracture of the distal left fibula, proximal left fibula, and left tibia (claimed as left ankle), as secondary to the service-connected knee disabilities. 3. Entitlement to VA compensation under 38 U.S.C.A. § 1151 (West 2002) for deep venous thrombosis of the right upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to December 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2005 and June 2006 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in December 2008. A transcript of the hearing is associated with his claims folder. This matter was remanded in May 2009 and March 2011 for further development. FINDINGS OF FACT 1. The Veteran's current low back disability was not manifest in service and is unrelated to service, and lumbar spine arthritis was not manifest to a degree of 10 percent within one year of separation. 2. The Veteran's current low back disability was not caused, or aggravated, by the Veteran's service-connected knee disabilities. 3. The Veteran's current left ankle disability, myofascial pain syndrome and possible left ankle arthritis, was not manifest in service and is unrelated to service, and left ankle arthritis was not manifest to a degree of 10 percent within one year of separation. 4. The Veteran's current left ankle disability was not caused, or aggravated, by the Veteran's service-connected knee disabilities. 5. The Veteran does not have additional disability related to his June 2005 deep venous thrombosis of the right upper extremity.. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for left ankle disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for VA compensation under 38 U.S.C.A. § 1151 for deep venous thrombosis of the right upper extremity are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice required for a 38 U.S.C.A. § 1151 claim would be similar. There must be evidence of existence of additional disability; and of a connection between the treatment rendered and the disability for which compensation is sought. The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letters dated in November 2004, March 2006, and April 2006. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the November 2004 notification for service connection for low back disability did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran a March 2006 correspondence that fully complied with Dingess, and that the Veteran has had an opportunity to submit evidence since then, and that the claim has been readjudicated, curing the timing error. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined him and/or obtained medical opinions concerning his low back disability, left ankle disability, and deep venous thrombosis disability in November 2006, January 2008, December 2009, April 2011, May 2011, and June 2012; and afforded the Veteran the opportunity to give testimony before the Board. Collectively, the examination reports and other evidence of record meet VA's duty to assist requirements and contain adequate information sufficient to render fair and impartial decisions on the claims. All known and available records relevant to the issues on appeal have been obtained, considered, and/or associated with the Veteran's claims file; and the Veteran has not contended otherwise, except for in December 2008, when he testified that he had submitted favorable medical opinions. He was given the opportunity to submit or re-submit these following the Board's May 2009 remand, and he did not do so. At the hearing, the Veteran was questioned regarding/advised of/expressed awareness of what remains needed to substantiate his claims. Accordingly, the Board finds that VA's duties have been discharged. The RO complied with the Board's March 2011 remand by obtaining VA examination reports/opinions and readjudicating the claims. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. All evidence of record has been considered. Virtual VA (VA's electronic data storage system) contains no relevant evidence at this time. Service connection for low back and left ankle disability The Veteran's appeals the RO's January 2005 and June 2006 decisions denying service connection for low back and left ankle disability. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). That an injury 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). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Service connection is in effect for chondromalacia of the right patella, and for left knee chondromalacia patella and strain, evaluated as 30 and 10 percent disabling respectively. The Veteran has current low back and left ankle disabilities, as reflected by November 2005 and March 2006 VA medical records and November 2006 and April 2011 VA examination reports. However, he does not claim that left ankle disability is related to service, service treatment records do not show that low back or left ankle disease or injury was manifest in service, and no competent evidence indicates that arthritis of the lumbar spine was manifest to a degree of 10 percent within one year of service separation or relates either the low back disability or the left ankle disability to service. The low back and left ankle disabilities appear to have first manifested many years after service. The statement from the Veteran in a November 2005 VA medical record, of chronic low back pain status post fall in 1986, is not viewed as credible in light of the fact that there is no documentation of this in service treatment records, no mention of or treatment for this for years after service, and because the Veteran contradicted this on VA examination in November 2006, when he indicated that he had had low back pain since 2004 without injury, and on VA examination in April 2011, when he indicated that he believed that the onset of his low back disability was following service. Moreover, the preponderance of the evidence indicates that the Veteran's current low back and left ankle disabilities were not caused or aggravated by the Veteran's service-connected knee disabilities. August 1997 VA medical records show that the Veteran was seen in the emergency department. He had run across or walked across his lawn when he fell into a hole or an irregular surface on the grass and twisted his leg and ankle. X-rays revealed a fracture of the distal fibula, proximal fibula, and tibia. The diagnosis was fractured tibia and fibula of the left lower leg. On VA X-ray in September 2005, an old ossicle or residual of trauma was present in the inferolateral aspect of the distal left tibia. In March 2006, mild degenerative changes of the distal left fibula were detected. A November 2005 VA medical record shows a problem of chronic low back pain status post fall in 1986, but shows a diagnosis of chronic left low back and leg pain, with an old disc injury of L5-S1 with left S1 radiculopathy being suspected. This was confirmed by MRI. On VA examination in April 2006, the Veteran reported left ankle pain for about a year continuously. On VA treatment in July 2006, the Veteran reported recurrent left ankle pain since the day before, when he had been walking on uneven ground and developed acute pain. On VA examination in November 2006, the Veteran reported low back pain since 2004 without injury. The examiner diagnosed degenerative joint disease of L5-S1 and found that the Veteran's low back condition was not caused by or related to his service-connected right knee disability. His limp was on the left, not the right, and there were no other factors which would cause his low back difficulty as far as his right knee was concerned. Also, any low back condition was not aggravated by the Veteran's service-connected right knee disability. On VA examination in January 2008, the Veteran indicated that in 2004, his right knee locked up on him, causing him to fall and fracture his left ankle. On examination, each knee had no instability, extension to 0 degrees, and flexion to 125 degrees. On VA examination in April 2011, it was noted that the Veteran reported that the onset of his low back disability was following service. He believed it was secondary to his service-connected knees. After examining the Veteran and reviewing his claims folder, the examiner opined that the Veteran's current low back disability was not likely proximately due to or caused by his service-connected bilateral knee disabilities, and that it had not likely been aggravated by his service-connected bilateral knee disabilities. The rationale was that medical literature speaks anecdotally of an association between low back pain and lower extremity disability. However, a review of the literature failed to find any documented nexus between lower extremity disability or dysfunctional gait and subsequent structural pathology in the lumbar spine. Hence, the Veteran's lower back condition was not likely directly due to his service-connected bilateral knee condition, and his service-connected knee condition had not likely aggravated his low back disability. Also on VA examination in April 2011, the Veteran reported that he had had many ankle sprains believed to be due to his knees. In August 1997, when running across a lawn, he stepped into a hole or uneven ground and badly twisted his left leg. The claims folder and medical history was reviewed. The examiner's opinion was that it was not likely that the Veteran's current left ankle disability is proximately due to or caused by his service-connected bilateral knee disabilities. It was also not likely that the Veteran's current left ankle disability aggravated by his service-connected knee disabilities. The reasons were that the claims folder contained a notation that the Veteran was running across a lawn when he stepped into a hole or on uneven ground and badly twisted his left leg. The resulting fracture had been problematic since that injury. The mechanism of injury for the ankle fracture (the circumstance in which the fracture occurred) was twisting of the ankle while running. The mechanism of injury to the ankle was in no way associated with a knee condition. Hence, it was proximately due to or caused by his service-connected bilateral knee disabilities. The current left ankle disability, a myofascial pain syndrome, is a not uncommon soft tissue residual of a severe ankle sprain or fracture. Consequently, it was less likely as not aggravated by the service-connected bilateral knee disabilities. As indicated above, based on the evidence, the Board concludes that service connection is not warranted for low back or left ankle disability. Neither was manifest in service or is related to service, and arthritis of the lumbar spine or left ankle was not manifest to a degree of 10 percent within 1 year of separation. Moreover, the preponderance of the evidence indicates that neither the low back disability nor the left ankle disability was caused or aggravated by the Veteran's service-connected bilateral knee disabilities. The examiner who reviewed the Veteran's claims folder, examined him, and came to these conclusions in April 2011 provided reasons for his opinions, and no countervailing competent medical opinions are of record. Similarly, the examiner who rendered the November 2006 medical opinion indicating that the Veteran's right knee disability did not cause low back disability also reviewed the Veteran's claims folder and gave reasons for the opinions that the Veteran's low back disability was not caused or aggravated by his right knee disability. While the Veteran may feel that his low back and left ankle disabilities were caused or aggravated by his service-connected knee disabilities, he is not competent to indicate that this is the case, as these are medical matters which are beyond his level of competence to opine about, as a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007. Compensation for deep venous thrombosis under 38 U.S.C.A. § 1151 The Veteran appeals the RO's June 2006 denial of compensation under 38 U.S.C.A. § 1151 for deep venous thrombosis of the right upper extremity. He argues, along with his spouse, that his deep venous thrombosis was the result of negligent treatment by VA nurses during June 2005. For claims filed on or after October 1, 1997, the provisions of 38 U.S.C.A. § 1151 require that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA. 38 U.S.C.A. § 1151 (West 2002). See VAOPGCPREC 01-99 (February 16, 1999). Compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). To determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d). In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. In this case, the evidence shows that the Veteran developed deep venous thrombosis of his right upper extremity during VA hospitalization in June 2005, which was for treatment of diverticulitis. A VA examiner in January 2008 noted that the Veteran had not had any bruising without trauma recently, and that he was on no medication for deep venous thrombosis. The examiner found the Veteran to have normal right arm sensation, a full range of motion of the elbow and wrist, no swelling, no tenderness, 2+ radial pulses, normal color and temperature, and 2+ deep tendon reflex. Ultrasound of the right upper extremity revealed no evidence of current right upper extremity deep venous thrombosis. According to the December 2009 VA examiner, who reviewed pertinent records, the Veteran was treated for deep venous thrombosis until warfarin therapy for it was discontinued in October 2005, and the Veteran has not required anticoagulation therapy since then. The VA examiner in December 2009 reviewed available records and noted that the Veteran had negative Doppler ultrasounds of his right upper extremity in September and October 2005, the latter time being when he had complained of pain and tightness in his right upper arm. In October 2005, both arms appeared normal with circumference being 32 centimeters in each mid-arm, and no palpable cords, tenderness, erythema, or streaks. Deep tendon reflexes were equal and there was no weakness. The assessment was no evidence of deep venous thrombosis in the right upper extremity. In October 2006, the December 2009 VA examiner related, the Veteran was seen for right arm tingling and weakness. However, examination revealed his right arm's brachial and radial pulses to be equal to his left arm's, and he had full strength against resistance. March 2009 observation had revealed no cyanosis, clubbing, or edema. His arm paresthesias was felt to be possibly related to cervical radiculopathy. Radicular neck signs and symptoms were assessed the next day. In summary, the evidence indicates that there has not been a recurrence of or any impairment competently attributed to the right upper extremity deep venous thrombosis in 2005. Ultrasounds were normal in September and October 2005, examination was normal in October 2005, and the assessment was no evidence of deep venous thrombosis at that time. October 2006 right arm complaints were attributed to cervical radiculopathy.. The examination and ultrasound in January 2008 were normal. All competent evidence points to their being no recurrence of or residual impairment from deep venous. This being the case, VA compensation under 38 U.S.C.A. § 1151 for deep venous thrombosis is not warranted. There must be additional disability in order for VA compensation under 38 U.S.C.A. § 1151 to be granted, and in this case, the preponderance of the evidence indicates that the Veteran does not have any residual impairment from the 2005 deep venous thrombosis of the right upper extremity. In light of the above, VA compensation under 38 U.S.C.A. § 1151 for deep venous thrombosis is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board notes that the Veteran's opinions, including those mentioned during his hearing testimony and December 2009 VA examination, regarding whether he has deep venous thrombosis or impairment from it currently, are not competent, as specialized medical training is necessary to formulate such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The representative argued in April 2013 that VA has conceded that the Veteran's deep venous thrombosis was an event not reasonably foreseeable. Even if that were the case, however, there is still a requirement under 38 U.S.C.A. § 1151 that the Veteran have additional disability. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for low back disability is not warranted. Service connection for left ankle disability is not warranted. VA compensation under 38 U.S.C.A. § 1151 for deep venous thrombosis is not warranted. The appeal is denied as to all issues. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs