Citation Nr: 1320442 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 08-39 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for right thigh condition to include as secondary to a service-connected disability. 2. Entitlement to service connection for left thigh condition to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket pursuant. The Veteran, who is the appellant, served on active duty from March 1943 to March 1946, and from September 1947 until his retirement in August 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010 the Veteran appeared at hearing before the undersigned. A transcript of the hearing is in the Veteran's file. In June 2010, the Board remanded the case for further development. FINDINGS OF FACT 1. Postthrombotic syndrome with venous valvular incompetence of the right lower extremity is related to the Veteran's service-connected shell fragment wound of the right groin. 2. A disability of the left thigh is unrelated to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for postthrombotic syndrome with venous valvular incompetence of the right lower extremity have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2012). 2. The criteria for service connection for left thigh disability to include as secondary to a service-connected disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. A July 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in August 2007, February 2012, and March 2012, and VHA medical opinions were obtained in November 2012 and March 2013. The Veteran has not argued, and the record does not reflect, that these examinations/opinions were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 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 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection-Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the claim of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, capable of lay observation. Jandreau, at 1377. Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. Evidence The Veteran contends that he has disabilities of the thighs related to service or to a service-connected disability. Service connection is in effect, in pertinent part, for residuals of cold injury of the left foot and of right foot and shell fragment wound of the right groin. The service treatment records show that the Veteran was treated for frozen feet in Korea and Japan in the early 1950s. In December 1953, he sustained a perforating wound to the right thigh. In August 1973 he was hospitalized for "cellulitis" of the right leg of unknown etiology, but streptococcal infection was suspected. After service, on VA examination in December 1974, the Veteran stated that his feet were frozen in Korea in 1950. He stated that his feet became quite black, and that he could peel large amounts of skin off of his toes. He stated that he was still having trouble with his feet with prolonged standing. The pertinent findings were normal color and temperature of the feet. Arterial pulsation was normal, and the venous return was adequate. Capillary circulation appeared normal, and no dyshidrosis was noted. In January 1983, a venogram by VA showed superficial thrombophlebitis and cellulitis of the right leg. VA examination in August 1988 noted frozen feet by history with venous insufficiency, and a history of chronic thrombophlebitis of the right lower extremity. On VA examination in February 1998, the diagnosis was history of frostbite to the feet with residuals of neuralgia and varicosities of the lower legs. On VA examination in November 1998, there was no muscle herniation or loss of function of the right inner thigh (muscle group 15), and muscle strength was normal. In August 2006, the Veteran went to a VA emergency room with complaints of right knee swelling and pain. The diagnosis was possible right lower extremity deep vein thrombosis. Doppler study by VA in August 2006 found no evidence of deep venous thrombosis in the right lower extremity. On VA examination in January 2007, the pertinent finds were edema and discoloration in the lower extremities and stasis pigmentation in the right lower extremity. In June 2007, the Veteran was informed by VA that he had chronic venous insufficiency, worse on the right, that was caused by injury to the right leg but also by hereditary venous insufficiency. On VA examination in August 2007, the right lower extremity was worse than the left. Right thigh measurement was 53 centimeters, and the left thigh measurement was 51.5 centimeters. The diagnosis was pain and swelling secondary to residuals of cold injury of the feet. The VA examiner stated that the thigh pain and swelling were due to nonservice-connected heart disease and not due to the residuals of the cold injuries. In October 2007 letter, a VA nurse practitioner stated that the Veteran's service-connected injuries, including the cold injuries and the residuals of shrapnel wounds, may contribute to the Veteran's thigh pain and swelling. In October 2008, the Veteran complained of burning in his feet. The diagnosis by a VA podiatrist was peripheral neuropathy secondary to diabetes. VA examinations were conducted in February and March 2012. The diagnoses were right thigh phlebitis, chronic venous insufficiency, varicose veins and post phlebitis syndrome, which the examiner stated was not caused or aggravated by either the service-connected shell fragment wound or the cold injury of the feet. No left thigh pathology was identified. The Board obtained an expert opinion from a VHA vascular specialist in November 2012. The VHA expert reviewed the Veteran's file and provided an opinion that the Veteran had several risk factors for deep venous thrombosis in his wounded right lower extremity, that the Veteran did have a significant soft tissue injury in the extremity, and that the Veteran had signs of postthrombotic syndrome with venous valvular incompetence of the right lower extremity that can be related to his injuries in service. The Board then sought a supplemental opinion from the VHA expert in March 2013 to specifically address the left thigh. In the opinion, the VHA expert stated that it was more likely than not that the Veteran had right lower extremity pathology initiated by trauma. The VHA expert did not find any causative relation of left thigh pathology to pathology of the right lower extremity. Right Thigh The Veteran sustained a shell fragment wound to the right inner thigh in service and subsequently developed thrombophlebitis in the extremity. While the VA examiners in August 2007, June 2010, and February 2012 did not find that the current right thigh disability was related to a service-connected disability, a VA nurse practitioner and a VHA expert, a vascular specialis, expressed the opinion that there was a causal relationship between the service-connected shell fragment wound and the current right thigh pathology. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for postthrombotic syndrome with venous valvular incompetence of the right lower extremity is warranted on a secondary basis. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310. Left Thigh There is no evidence of left lower extremity disability in service. The VA examination findings in June 2010, February 2012, and March 2012 did not identify any left thigh pathology or diagnosis. The August 2007 VA examination found thigh pain and swelling was due to nonservice-connected heart disease and not to residuals of cold injuries. The VHA expert did not identify any left thigh pathology that could be related to the right thigh. To the extent that the Veteran states that he has a chronic left thigh disability related to a service-connected disability, pain or symptoms alone without a diagnosed or identifiable underlying disability does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez, 13 Vet. App. at 285. Although the Veteran is competent to describe left thigh symptoms, a current disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225; see Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, in the absence of evidence of a diagnosed left thigh disability, the preponderance of evidence is against service connection and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for postthrombotic syndrome with venous valvular incompetence of right lower extremity is granted. Service connection for left thigh disability to include as secondary to a service-connected disability is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs