Citation Nr: 1323956 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-27 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for disability manifested by swelling of the legs and knees other than that due to poor circulation. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had verified active military service from January 8, 1952 to January 7, 1954, and from November 3, 1954 to November 1, 1957. He also had additional service with a reserve component. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. (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).) During the current appeal, and specifically in July 2008, a hearing was held at the Indianapolis RO before a Hearing Officer. A transcript of the testimony is in the claims file. In August 2009, the Board remanded the Veteran's claims of service connection for arthritis, hearing loss, tinnitus, a disability manifested by poor circulation, and a disability manifested by swelling of the legs and knees for further procedural and evidentiary development. In a May 2011 decision, the Board denied the Veteran's claim of service connection for arthritis, and remanded the remainder of the Veteran's claimed disorders. The Board remanded the Veteran's remaining claims so he could be scheduled for additional VA examinations, and once again instructed the agency of original jurisdiction (AOJ) to attempt to retrieve the Veteran's outstanding private medical records. The Veteran was scheduled for additional VA examinations in connection with his claimed hearing loss, tinnitus, disability manifested by poor circulation and disability manifested by swelling of the legs and knees in June 2011. Unfortunately, the medical opinions obtained on remand were also found to be inadequate. In November 2012, the Board again remanded the Veteran's claims and asked that the VA examiners who evaluated the Veteran in June 2011 review the Veteran's claims folder and provide addendum opinions to support the conclusions reached in the June 2011 medical opinions. Opinions were obtained and associated with the claims file in January 2013. In an April 2013 Board decision, the Board denied the Veteran's claim for service connection for disability manifested by poor circulation, and remanded the claim for service connection for disability manifested by swelling of the legs and knees for an addendum opinion from the same examiner. This opinion was issued in May 2013 and has since been associated with the claims file. Thus, the AOJ has complied with all of the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board notes that the issue of entitlement to service connection for a disability manifested by poor circulation was addressed in the April 2013 decision. In this regard, the medical evidence of record attributed the Veteran's symptoms of poor circulation and swelling of the legs and knees to his chronic venous stasis, peripheral vascular disease of the lower extremities and pedal edema, and indicated that said disorders were neither caused by, nor related to the Veteran's military service. In the April 2013 decision, the Board provided a statement of reasons and bases as to why the Veteran was not entitled to service connection for a disability manifested by poor circulation. In the remand section, the Board remanded the Veteran's claim for service connection for a disability manifested by swelling of the legs and knees to determine whether these particular symptoms could be attributed to any other disability separate and distinct from his problem with poor circulation. As such, the only question remaining before the Board is whether the Veteran is entitled to service connection for a disability manifested by swelling of the legs and knees other than that due to poor circulation. For these reasons, the Board has re-characterized the issue on appeal as stated on the title page of this decision. FINDING OF FACT The Veteran does not have a disability manifested by swelling of the legs and knees other than that due to poor circulation. CONCLUSION OF LAW The Veteran does not have a disability manifested by swelling of the legs and knees that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through the September 2005 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the above-referenced notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned notice letter. Further, the Veteran was informed of the laws and regulations governing the assignment of disability ratings and effective dates in the July 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that the duty to provide notice relating to the Veteran's claim was not fully satisfied prior to the initial unfavorable decision by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by re-adjudication of the claim); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by re-adjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of the July 2008 notice letter that fully addressed all notice elements. Specifically, the July 2008 notice letter informed the Veteran of his and VA's respective duties for obtaining evidence and gave examples of the types of medical and lay evidence that the Veteran could submit or ask VA to obtain in support of his claim. This notice letter also informed the Veteran of the laws and regulations governing the assignment of disability ratings and effective dates as required under Dingess. Although this notice letter was not sent before the initial decision in this matter, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond. The RO also re-adjudicated the claim by way of an April 2009 supplemental statement of the case. The Board further notes that although the Court has held in Mayfield, that post-decisional documents are inappropriate vehicles with which to provide notice, the RO in this case provided VCAA-compliant notice that was followed by re-adjudication of the Veteran's claim. The Board concludes that during the administrative appeal process the Veteran was provided the information necessary such that further action to provide additional notice would be merely duplicative of what has already transpired. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his December 1953 and October 1957 service separation examination, VA outpatient treatment records, VA examination reports, and statements from the Veteran, to include his July 2008 testimony at an RO hearing. During his July 2008 hearing, the Veteran stated that he was in receipt of Social Security Administration (SSA) benefits. The Board notes, however, that in January 2007, the AOJ sought to obtain the Veteran's SSA records. A response was received in February 2007 indicating that the Veteran's SSA folder had been destroyed and the SSA decision, and any records relied upon, were therefore unavailable. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board is aware that the Veteran's service treatment records (STRs) consist only of his separation examination reports. In response to two requests for the Veteran's complete STRs the National Personnel Records Center (NPRC) responded that the Veteran's STRs were likely destroyed in a 1973 fire at the NPRC. A formal finding regarding the unavailability of these records was made in February 2009 and is documented in the claims folder. In a March 2009 letter, the Veteran was informed that his STRs were unavailable for review and was provided with a description of the efforts undertaken to obtain those records. The Veteran was also provided with a list of documents that he could substitute for his STRs. The Board is satisfied with the efforts as outlined by the RO and finds that the March 2009 letter complies with the requirements of 38 C.FR. § 3.159(e) (2012). Pursuant to the May 2011, November 2012 and April 2013 remand instructions, the Veteran was afforded a VA examination in June 2011, and additional medical opinions were obtained in January 2013 and May 2013 in connection with his claim, and in accordance with 38 C.F.R. § 3.159 (c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the June 2011 VA examination report in conjunction with the January 2013 and May 2013 medical addendum opinions to be adequate. The reports included a review and discussion of the Veteran's existing medical records, an interview with the Veteran including a discussion regarding his medical history, and a physical examination of the Veteran's vascular system. Based on a review of the Veteran's claims file and an evaluation of the Veteran, the same examiner provided etiological opinions concerning the Veteran's claimed disorder and service, and included the rationale upon which the opinion was based. The Board finds that the January 2013 and May 2013 addenda, combined with the June 2011 examination report, address all the necessary directives listed in the May 2011, November 2012 and April 2013 Board remands. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) evidence of the current disability; (2) evidence of the in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Subsection (a) also refers to "each disabling condition . . . for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that VA has heightened duties when the Veteran's service treatment records have been destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the case law does not establish a heightened benefit-of-the-doubt standard, only a heightened duty of the Board to consider applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran maintains that he began developing a disability manifested by swelling in the legs and knees in service. According to the Veteran, he received treatment for swelling in his lower extremities while stationed in Korea and Japan during his period of service. See July 2008 Hearing Transcript, pp. 5, 9. A review of the available service treatment records is negative for any evidence of swelling in the lower extremities. The clinical evaluation of the Veteran's lower extremities and feet was shown to be normal at both the December 1953 and October 1957 separation examinations. In addition, the Veteran had a physical profile of 'P1' and 'L1' at both examinations. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The Board further observes that the post-service record on appeal is similarly negative for any findings of complaints, treatment or diagnosis of a disability manifested by swelling in the lower extremities until several decades after service. In fact, the first post-service medical evidence of record pertaining to the Veteran's lower extremities is a July 2005 VA primary care note reflecting an assessment of chronic venous stasis. This treatment report is dated nearly forty-eight years after the Veteran's separation from service. The Veteran first presented at the VAMC with complaints of bilateral leg swelling in July 2005. The treatment provider assessed him with chronic venous stasis and attributed his swelling to this condition. VA outpatient records dated from July 2005 to June 2006 reflect diagnoses of venous stasis and chronic leg edema due to venous insufficiency. During an August 2008 podiatry consultation, an evaluation of the lower extremities showed that the dorsal pedis (DP) and posterior tibial (PT) pulses were "1/4 diminished yet palpable" bilaterally. The "[c]apillary fill time to digits [was] WNL (within normal limits)" and there were no signs of cyanosis or clubbing. The treatment provider did identify "[e]dema + 1 pitting present in the bilateral ankles" and the neurology portion of the evaluation revealed a grossly intact epicritic sensation bilaterally. Based on this evaluation, the Veteran was assessed with peripheral vascular disease and neuropathy due to diabetes. The Veteran was afforded a VA arteries and veins examination in April 2010, at which time the examiner noted a history of varicose veins or post-phlebitic syndrome and persistent edema of the lower legs. The Veteran also reported experiencing symptoms of aching and fatigue after prolonged walking or standing. The examiner did not detect the presence of any visible or palpable varicose veins, and results from a Doppler vascular study of the lower extremities were shown to be normal. It was noted, however, that certain limitations of the study may have included body habitus and arterial calcification, and the impression given reflected only those adequately visualized. According to the examiner, the Veteran's symptoms may indicate the need for further diagnostic testing. Based on her discussion with, and evaluation of the Veteran, the examiner diagnosed the Veteran with normal circulation as evidenced by Doppler study to the bilateral lower extremities. VA podiatry consultation notes dated from July 2010 to August 2010 reflect ongoing treatment for the Veteran's peripheral vascular disease. Pursuant to the May 2011 remand, the Veteran was afforded another VA examination in June 2011, at which time, the examiner acknowledged a history of varicose veins or post-phlebitic syndrome in the upper legs. The examiner also conducted the appropriate tests, to include a lower extremity arterial (LEA) Doppler study, the impression of which revealed bilateral superficial femoral artery (SFA) with moderate distal ischemia at rest. Upon physical examination, the examiner observed bilateral 2+ pedal edema extending to the mid shin region. Based on her discussion with, and evaluation of the Veteran, the examiner diagnosed the Veteran with peripheral vascular disease of the lower extremities, which she indicated to be the cause of poor circulation in the Veteran's feet. She also diagnosed the Veteran with pedal edema which she found to be the cause of his bilateral foot edema. The examiner then opined that the Veteran's swelling in the lower extremities was neither caused by, nor a result of, an in-service illness. The basis of the examiner's opinion, however, is somewhat unclear from the examination report, in part because the report contained in the claims folder is not fully available in that the text on the right hand side of the page has been cut off. Further, while the examiner stated that the Veteran's pedal edema was likely due to a combination of medical and lifestyle factors unrelated to his military service, the report contains no discussion of what specific medical problems and lifestyle factors the Veteran was found to have that would account for his pedal edema. The Veteran's claims file was referred again to the June 2011 VA examiner in January 2013, and in an extended opinion, the VA examiner, in reviewing the June 2011 VA examination report, concluded that the Veteran's poor circulation, leg and knee swelling, and pedal edema were not caused by or the result of an in-service cause. According to the examiner, the Veteran's pedal edema and leg and knee swelling were caused by his venous stasis, a high salt diet, limited activity, excessive sitting with the legs bent, being on his feet for long periods of time, and failing to wear his support stockings or take his medication. The examiner also referenced the Veteran's October 1957 separation examination, wherein no abnormalities were claimed or recorded. According to the examiner, there was nothing in the available service records, or in the Veteran's verbalized history as recorded at the June 2011 VA examination, that would support a connection between the Veteran's current symptoms and his military service. In summary, there was no report or evidence of any condition around the time of the Veteran's separation from military service; nor was there a report of his claimed conditions until decades following separation from the military. In the April 2013 decision, the Board acknowledged the Veteran's diagnoses of chronic venous stasis, peripheral vascular disease and pedal edema, and noted that the Veteran's poor circulation was attributed to these disorders. In the remand section, the Board noted that although the record appeared to associate the Veteran's symptoms other than poor circulation, to include symptoms of leg and knee swelling, to his chronic venous stasis and mild leg edema, the record was still unclear as to whether the Veteran's swelling in the lower extremities could also be attributed to a disability separate and distinct from his chronic venous stasis and pedal edema. As such, the claim was remanded specifically so the same VA examiner who evaluated the Veteran in June 2011 and issued the January 2013 addendum, could review the record once more and provide an opinion as to whether the Veteran's swelling of the legs could be attributed to any specific disability separate and distinct from his poor circulation (pedal edema and chronic venous stasis). The Veteran's claims file was again referred to the same VA examiner who evaluated him in June 2011 and who issued the January 2013 medical opinion. In a May 2013 opinion, the VA examiner determined that "[t]here is no specific disability other than vascular disease, venous stasis, and a normal physiological response to factors resulting in an increase in pedal edema of [the Veteran's] legs and knees." According to the VA examiner, the medical and lifestyle factors causing the Veteran's "pedial edema, leg and knee swelling" include his venous stasis, a high salt diet, limited activities, excessive sitting with legs bent, being on his feet for long periods of time, not wearing his support stockings, and periods of non-compliance with medication. The VA examiner concluded that there was no indication of an additional disease process responsible for the Veteran's pedal edema and chronic venous stasis. As demonstrated by the May 2013 medical opinion, the Veteran's swelling in the legs and knees has been attributed to the same disabilities manifested by his poor circulation, namely his chronic venous stasis or peripheral vascular disease and pedal edema. The Board previously denied the Veteran's claim for service connection for these underlying disabilities in its April 2013 decision. In denying this claim, the Board noted that there was no evidence that the Veteran's chronic venous stasis or peripheral vascular disease of the lower extremities manifested within the first post-service year after the Veteran's discharge from service in November 1958. The Board also noted that the competent medical evidence of record did not relate the Veteran's chronic venous stasis or peripheral vascular disease of the lower extremities to service, and discussed the various medical opinions reflecting such. The Board further noted that the medical evidence of record attributed the Veteran's pedal edema to medical and lifestyle factors rather than his military service, and provided a detailed explanation of the various medical and lifestyle factors contributing to his pedal edema. The Board has investigated whether swelling of the legs and knees is due to disability other than that causing his poor circulation. However, in the May 2013 opinion, the VA examiner determined that the Veteran's swelling in the legs and knees was attributed to his venous stasis, and added that there was no specific disability other than vascular disease resulting in the Veteran's edema. Indeed, a review of the medical evidence reflects that swelling of the legs and knees is attributed to the poor circulation and nothing else. Because the Board has previously adjudicated the poor circulation issue, and because it has now been determined that there is no other cause for the swelling, the Board finds that the Veteran's claim of entitlement to service connection for a disability manifested by swelling of the legs and knees must be denied. For the above-stated reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a disability manifested by swelling of the legs and knees. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not help the Veteran. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a disability manifested by swelling of the legs and knees is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs