Citation Nr: 1328914 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-24 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for deep vein thrombosis (DVT) of the right lower extremity, including as secondary to service-connected left leg varicose veins. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for gastric ulcers or GERD secondary to gastric bypass surgery. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active military duty from March 1968 to December 1971. These issues come before the Board of Veterans' Appeals (Board) on appeal from rating actions of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2006, the Veteran filed a claim for an increase for "service-connected disability compensation for circulation in both legs." He mentioned he had right leg DVT problems. In March 2007, the RO denied service connection for DVT of the right leg. The same month, the Veteran submitted a statement which said that the claim regarding the right leg DVT was "filed as a continuation of the service-connection problems with the left leg. The problems with the right did not present itself until after leaving the military." In September 2008, the RO concluded that there was no new and material evidence for service connection for right leg DVT. In October 2008, the Veteran filed a notice of disagreement and this appeal ensued. The Veteran was given a hearing in May 2011 and the issue was characterized as entitlement to service connection for DVT of the right leg. Under the circumstances, the Board will adjudicate the claim as an initial service connection claim. In May 2011, the Veteran and his wife testified before the undersigned. A copy of the transcript has been associated with the file. In October 2009, the RO denied a claim for entitlement to compensation under 38 U.S.C.A. § 1151 for gastric ulcers secondary to a gastric bypass procedure, and the Veteran has also appealed that determination. The Board remanded these claims in August 2011. The ordered development has been completed and the claims have been returned to the Board for further appellate adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Right leg DVT did not have its clinical onset in service and is not otherwise related to active duty or to a service-connected disability. 2. In July 2008, the Veteran underwent a gastric bypass surgery at a VA Medical Center (VAMC). 3. The treatment the Veteran received from the VA, specifically the July 2008 gastric bypass surgery, did not result in additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for DVT of the right leg are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 due to July 2008 gastric bypass surgery have not been met. 38 U.S.C.A. § 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in December 2004, January 2007, May 2008, August 2009 and September 2011 that fully addressed all notice elements. Necessary notice was provided prior to the initial adjudication of the Veteran's claims and the Veteran's claims have been most recently adjudicated in August 2012. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, letters informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a May 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Veteran was afforded the opportunity to testify before the undersigned Veterans Law Judge in May 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge, discussed the elements necessary to substantiate the claims on appeal. In addition, the Veteran demonstrated actual knowledge of this information. The Veteran specifically addressed medical evidence in support of his claims, indicating an understanding of requirements to establish service connection. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Additionally, the presiding Veterans Law Judge noted the issues on appeal and provided a basic explanation of them. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Board additionally notes that the Veteran, through his representative, contends that the physician who authored the May 2012 VA examination note is not qualified to opine concerning the Veteran's contentions concerning his 1151 claim. The representative based this on a November 2011 VA examination report with a February 2012 addendum; the examiner indicated that he was an Internist and not a Surgeon and it was beyond his competence to pronounce potential negligence in a surgical procedure. In considering this argument, the Board finds that the May 2012 opinion is sufficient to determine the Veteran's claims. Firstly, the physician who authored the May 2012 report is a physician, and by proffering an opinion, determined that he was competent to provide an opinion concerning the claims decided herein. The provider himself is more competent than the Board or the representative to determine himself able to provide the necessary opinion, based on his many years of medical education and practice. Secondly, there was no requirement by the August 2011 remand that a medical professional with a specific specialty provide a medical opinion concerning the Veteran's claims. Thirdly, the May 2012 examiner provided a thorough rationale, based on his medical knowledge and review of the claims file. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection Claim 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 (West 2002); 38 C.F.R. § 3.303 (2013). 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). Regulations also provide that 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 issue of service connection there must be medical 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 medical 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); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Although 38 C.F.R. § 3.310 was amended effective October 10, 2006, during the pendency of this claim, the Board will apply the former version of 38 C.F.R. § 3.310, which is more favorable to the appellant because it does not require the establishment of a baseline before an award of service connection may be made. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Initially, the Board points out that the service treatment records are negative for complaints or findings of a right leg disability or a right leg DVT. The Board additionally notes that the Veteran's right leg venous problems were not diagnosed until 1991, according to multiple private and VA treatment records; approximately twenty years post-service. However, the Veteran's primary and most consistent argument in bringing this claim is that his right leg DVT is from his service-connected left leg varicose vein disability. The history of the Veteran's disability shows that he first was diagnosed with right leg DVT in June 1991. The Veteran was working as a bus driver at the time and several post-service medical records suggest that his DVT was related to this job. Specifically, an August 1995 letter from Dr. Y; September 1998 employer letter; an April 1999 VA record; and a May 2003 VA record. The record also shows the Veteran hurt his right knee at work picking up luggage around December 2003, but clinical data to include a December 2003 VA medical record from that time do not implicate that trauma to the cause of the DVT. In a VA examination report, dated in May 2008, the examiner stated that the Veteran had an injury to his right leg resulting in DVT. The May 2008 examiner also stated that, "... right leg deep vein thrombosis is not secondary to the left leg varicose veins." However, no rationale was provided for this statement. The Veteran was afforded an additional VA examination in November 2011 with an addendum dated February 2012. The examiner indicated that the Veteran's deep vein thrombosis appeared to have started after service and that it is not at all clinically likely that the right leg problems are related to the Veteran's (service-connected) left leg problems. The AMC requested an additional opinion, dated May 2012. The examiner indicated that the Veteran was treated for deep vein thrombosis in 1991 and 1993, with no evidence of such condition prior. Thus, his deep vein thrombosis was not incurred during active service, aggravated during active service or related to service in any way. Additionally, the examiner indicated that there is no parthophysiologic basis for the Veteran's right leg DVT to be caused or aggravated by his service-connected left leg vein disability; adding that venous stasis in the contralateral leg would not cause a right lower extremity DVT. The Board additionally observes that the Veteran submitted a March 2008 letter from a private physician. The physician indicates that the Veteran has chronic changes of deep vein thrombosis of the right popliteal vein and deep venous insufficiency in the left popliteal; however, at least some of the changes were present in service but the physician felt himself not qualified to make a determination of whether the Veteran's right leg disability is service-connected. Such opinion is speculative at best. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. at 23 (medical opinions which are speculative or inconclusive in nature cannot support a claim). The Board finds that the preponderance of the evidence is against a finding that the Veteran's right leg DVT is related to service or a service-connected disability. It is clear from the voluminous treatment records that the Veteran's DVT in his right leg began in 1991, many years post-service. The probative medical evidence of record, to include the opinions of two medical examiners, indicates that it is less likely than not that the Veteran's right leg disability is related to service or his service-connected left leg varicose vein disability. The examiners reviewed the claims file when rendering their opinions and provided a rationale for the conclusions. As such they are entitled to great probative value. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (an opinion that is based on review of the medical evidence is more probative than an opinion that is based on the veteran's reported history). Conversely, the only medical evidence favorable to the claim was a statement from a private physician, which merely reiterates the Veteran's contentions and did not include claims file review. Additionally, the private physician indicated that he was not competent to provide an opinion concerning service-connection. Thus, such statements are entitled to little, if any, probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history and unsupported by clinical findings is not probative); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). The Board finds that the probative medical evidence of record fails to show a relationship between the Veteran's current right leg disability and any incident of active service or a service-connected disability. The Veteran himself believes that his right leg DVT is related to active service and/or a service-connected disability. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time, the reported delayed onset of diagnosis, and the systemic nature of the Veteran's right leg disability, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right leg disorder is related to active service, to any incident of active service, or is secondary to any service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 1151 Claim Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability 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 establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2). 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, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; 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 or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2013). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1). Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability 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. 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 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. The Veteran contended during his hearing that he developed an ulcer after his gastric bypass surgery and that he currently suffers from gastroesophageal reflux disease or GERD also as a result of the surgery. However, the Veteran's spouse indicated that the Veteran was aware that gastric bypass could create an ulcer. The Veteran's spouse alleged that a hemostat on the stomach during the surgery caused the ulcer. The Veteran and his spouse also indicated that he had followed the post-gastric bypass diet "to the letter" and that they were only aware of ulcers being a complication if the diet was not followed or the person having the surgery was a smoker. An April 1999 VA treatment note indicates that the Veteran's GERD was stable and he was instructed to continue the use of his medication for such condition. The Veteran weighed 360 pounds at that time. A September 2006 VA treatment note additionally indicates that the Veteran had GERD. July 2008 inpatient VA treatment records indicate that the Veteran underwent gastric bypass surgery, noting that he had been morbidly obese almost his entire adult life. The Veteran was cleared for surgery by the surgical service, medical service, cardiology, and psychiatry. A July 7, 2008 treatment note indicates that the Veteran "understood quite well" the short-term risks and benefits of the operation and gave consent for the surgery. After the surgery, it was noted that he did very well and was discharged to home in stable condition. Private treatment notes indicate an admission to a private hospital from August 17, 2008 to August 20, 2008. The final diagnosis was syncope, secondary to dehydration due to weight loss status post gastric bypass with bradycardia and hypotension secondary to Actonel. An August 2008 VA treatment note indicates that the Veteran's spouse attributed his recent cardiac event to dehydration and his electrolytes being messed up. A September 2008 VA treatment note indicates that the Veteran was admitted for problems post-gastric bypass surgery. Specifically, the Veteran reported that his blood pressure was too low. The Veteran was diagnosed with orthostatis hypotension likely due to medication. He was told to see Psychiatry to adjust his psychiatric medications. The treatment note also reported that his medication causes syncope. Private treatment records after the surgery indicate that the Veteran was treated for malnutrition, malabsorbtion, syncope and anemia, among other things, in September 2008. The private treatment note indicates that the Veteran had lost 80 pounds since his gastric bypass surgery. The Veteran was subsequently treated in September 2008 at the VA Medical Center with a history of cardiac arrest and dehydration. The cardiac arrest was treated by discontinuing hypertension medication and rehydration; subsequent cardiac work-up was negative. The treatment note indicated that the Veteran had a "marginal ulcer" which was being treated with medication. A September 2008 private report of esophagogastroduodenoscopy indicates that the Veteran's gastric pouch had a sizeable ulcer. An October 2008 report of the same procedure indicates that the gastric pouch had healed and looked normal. Additional October 2008 VA treatment notes indicate that complications of the Veteran's gastric bypass surgery include an ulcer due to possible ischemia after surgery. An October 2008 private treatment records indicate that the Veteran's stomach ulcer had healed and he was given a "clean bill of health." A May 2009 VA treatment note indicates that the Veteran had lost 133 pounds since his gastric bypass surgery. He had been doing well until the previous week when he began having health issues with orthostatic hypotension; with loss of consciousness with a seizure, sustaining fractured ribs and small pneumothorax. An additional May 2009 VA treatment note indicates that the Veteran had not eaten or drunk anything for several hours and he passed out and fell. A May 2009 nutrition instruction note indicates that the Veteran had problems with eating 4 to 6 small meals a day and he had a syncope episode where he fell and broke some ribs. The Veteran reported that he would be better at following the post-gastric bypass diet recommendations and take his vitamin/mineral supplements as directed. A July 2009 VA treatment note indicates that the Veteran didn't have much appetite and hardly ate twice a day, although he was instructed to eat eight times per day. The Veteran had a hernia repair in March 2010. The VA treatment notes indicate that the Veteran had some vomiting, especially after meals, and that he thought that he ate too fast. An August 2010 VA treatment note for the Veteran's two year follow-up indicates that the Veteran had no pain or problems associated with the gastric bypass surgery. An August 2011 VA treatment note for the Veteran's three year follow-up indicates that the Veteran had done well but felt like his food was backing up. The Veteran was diagnosed with post-gastric bypass dysphagia. The Veteran was afforded a VA examination in December 2011. The examiner indicated that the Veteran had postgastrectomy syndrome with diarrhea, anemia, weight loss, nausea and vomiting. As mentioned in the VCAA portion of this decision, the examiner felt himself unqualified to render an opinion concerning the Veteran's claim under 38 U.S.C.A. § 1151. The AMC obtained a medical opinion from a VA physician in May 2012. The physician indicated that the Veteran had a gastric bypass in July 2008 and that test results indicated a gastric ulcer in September 2008. Other conditions post-gastric bypass included a ventral hernia (repaired in 2010), nausea, vomiting, nutritional deficiencies expected after gastric bypass, and dumping syndrome. The physician indicated that all of these conditions including the gastric ulcer are causally associated with the Veteran's obesity and gastric bypass surgery; the conditions are known risks associated with the treatment provided. The physician also noted that all appropriate care and precautions appeared to have been taken by the treating physicians. The physician concluded that although the Veteran may have associated (additional) disabilities from the gastric bypass, there is no evidence of carelessness, negligence, lack of proper skill or error in judgment. The Board finds that the preponderance of the evidence is against a finding that the Veteran has an additional disability which was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or an event not reasonably foreseeable. While there are noted additional disabilities after the gastric bypass, it must be observed that there is nothing suggesting negligence or carelessness. Moreover, the additional disabilities are reasonably foreseeable events with respect to gastric bypass, and the Veteran is noted to have understood the risks and possible negative outcomes of this very serious procedure, and elected to proceed. See 38 C.F.R. § 17.32(b). The Board notes in this regard that in the Veteran's voluminous treatment records in his claims file, in the thousands, there is no indication of a medical determination of any type of fault on the part of VA in performing the gastric bypass. Although the Veteran and his spouse point to a hemostat on the stomach to be the cause of his ulcer, they also acknowledge that they were informed that an ulcer could be a residual of gastric bypass surgery. Additionally, the Board notes that the Veteran clearly had GERD for many years prior to the gastric bypass surgery. Also, in August 2010, the Veteran stated that he had no negative residuals of the gastric bypass surgery on follow-up for such procedure. The Board concludes, therefore, that the preponderance of the evidence is against the claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151. The Veteran himself may believe that he has additional disabilities which resulted from carelessness, negligence, lack of proper skill or an event that was not reasonably foreseeable during the time of his gastric bypass. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to complicated medical questions inherent in a claim based on 38 U.S.C.A. § 1151, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. In any event, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the etiology of his claimed disabilities to include that such disabilities resulted from carelessness, negligence, lack of proper skill or an event that was not reasonably foreseeable. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for deep vein thrombosis (DVT) of the right lower extremity, including as secondary to service-connected left leg varicose veins is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for gastric ulcers or GERD secondary to gastric bypass surgery is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs