Citation Nr: 1329918 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-30 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for deep vein thrombosis (DVT) of the right leg. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from May 1979 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2009 the Veteran testified during a Board hearing before a Veterans Law Judge at the RO; a transcript of that hearing is of record. Effective February 27, 2012, the Veterans Law Judge who conducted the October 2009 hearing was designated to serve as the Acting Chairman of the Board and thus no longer available to consider the Veteran's appeal. In addition, that Veterans Law Judge is no longer employed at the Board. The law requires that the Veterans Law Judge that conducted the Board hearing shall participate in making the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Thus, the Veteran was given the opportunity to request another Board hearing. In June 2012, the Veteran indicated that he did not wish to appear at an additional hearing and requested that the Board consider his case on the evidence of record. A review of the evidence contained in the Veteran's virtual VA claims files was conducted by the RO prior to issuing the January 2013 supplemental statement of the case and by the Board prior to issuing this decision. The Veteran's claim was previously before the Board and remanded in July 2012. As will be discussed in greater detail below, the remand directives were complied with, and the Board may proceed with this determination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Deep vein thrombosis of the right leg is unrelated to service. CONCLUSION OF LAW Deep vein thrombosis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In October 2004 and October 2005 pre-rating letters, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection. While the letter did not include information as to establishing service connection on a secondary basis, since this theory of entitlement is precluded by law, as shown below, no notice is required. See 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). The October 2004 and October 2005 letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice in a September 2006 letter, which was prior to the readjudication of the Veteran's claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified VA and private treatment records for which the appropriate authorization to release information was given. In its July 2012 remand, the Board directed that the Veteran should be sent a letter asking him to identify any pertinent medical treatment not already of record, which was accomplished in July 2012. The Veteran did not respond to this request. The Veteran was also scheduled to undergo a VA examination to obtain an opinion as to whether his DVT was related to service. In August 2012, the Veteran was afforded a VA examination, and the report complied with all of the Board's pertinent remand instructions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the RO/AMC substantially complied with the remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The August 2012 VA examination was conducted by a physician, who reviewed the claims file solicited history and symptomatology from the Veteran, conducted a full evaluation, and provided an opinion based upon a rationale that is consistent with the record. Therefore, the examination is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Finally in this regard, during the October 2009 Board hearing, the Veterans Law Judge that conducted the Veteran's hearing explained the issue on appeal and suggested the submission of evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim of entitlement to service connection for DVT is thus ready to be considered on the merits. II. Analysis As an initial matter, the Board notes that the Veteran has not alleged that this claimed disability is related to engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Since the disability claimed by the Veteran is not one of the enumerated chronic diseases, the provisions of 38 C.F.R. §§ 3.303(b) do not apply in this case. See 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). During service, the Veteran requested to be tested for a mutation in the Factor V allele, for which some of his family members had tested positive. Results dated in December 2002 show that the Veteran was positive for the mutation and was at an elevated risk for venous thrombosis. On examination for separation in July 2003, the Veteran's lower extremities were normal, the Veteran denied any history of impaired use of the legs or swollen or painful joints. A December 2003 private hospitalization record indicates that the Veteran complained of a couple of days of pain in a lump that he had in his groin. On examination, the Veteran had an erythematous papule located on the perineum, just between the scrotum and the anus. The surrounding area was not indurated and there was minimal tenderness. The clinical impression was perineal folliculitis. Along with his September 2004 original claim, the Veteran submitted medical literature showing that having Factor V Leiden is associated with an increased risk of developing an episode of DVT. He did not claim entitlement to service connection for DVT at that time. October 2004 private treatment records show that the Veteran was diagnosed as having thrombosis in the right lower extremity. In October 2004, the Veteran filed an informal claim of entitlement to service connection for DVT. A November 2004 private treatment record indicates that the Veteran returned for follow-up since his idiopathic right leg DVT that he suffered in October 2004. A January 2005 private treatment record shows that the Veteran was establishing care and reported a history of DVT in the fall of 2004, when he spontaneously developed leg pain. It was noted that he was positive for Factor V Leiden. In February 2005, the Veteran underwent VA examination. He reported that, in October 2004, he developed a deep vein thrombosis of the right lower extremity. The Veteran complained of constant leg edema, which was not completely relieved by foot elevation or compression. The diagnosis was residuals of DVT. In a November 2005 written statement, the Veteran indicated that his DVT manifested in the fall of 2004. In the December 2005 rating decision, the RO denied entitlement to service connection for Factor V Leiden. The Veteran did not appeal this decision. In a July 2006 written statement, the Veteran contended that, starting in the fall of 2003, he experienced deep pain in his right thigh on numerous occasions. On December 4, 2003, he went to the emergency room for a pain between his legs, which turned out to be a cyst on his perineum. However, he went to the emergency room because he thought the pain between his legs was related to the deep pain he had been recently experiencing. He did not adequately describe this pain, which is why it is not reflected in the hospitalization notes. He asserts that the proximity of the symptoms to the dates he served on active duty indicated that the condition developed when he was on active duty. In a November 2007 written statement, the Veteran asserts that the record shows he experienced deep pain in his right leg on numerous occasions in the fall of 2003. The pain was significant and of unknown origin. As a result of this pain, he presented to the emergency room in December 2003. One year later, he experienced DVT. He believes there is reasonable doubt as to whether it started while he was in service or whether it was caused by an event or experience in service. He asserts that the condition commenced either while he was in service or in September or October 2003. He believes it was unlikely that a spontaneous blood clot formed in September or October 2003. It was more likely that the DVT was in the process of forming while he was on active duty. He also asserted that the frequent air travel required by his job could have triggered the development of this condition. He believed that the cause of his DVT was unknown. In a September 2008 written statement, S.G., M.D. indicated that the Veteran was returning for follow-up of idiopathic right leg DVT that was diagnosed in October 2004. The unprovoked DVT was associated with his having the Factor V Leiden genetic mutation. In October 2009, the Veteran testified before the Board. He reiterated that he believed the DVT started during service and the symptomatology started within a few months after separation. He went to the emergency room in December 2003 because he had been experiencing deep pain in his thighs for a few months prior to that. He then had deep pain on and off for the next year until he was diagnosed as having DVT in the fall of 2004. He was told the DVT was idiopathic and they did not know what caused it. He denied feeling discomfort of his right thigh prior to separation. The Veteran stated that the pain he remembered prior to December 2003 was in his right thigh, but the DVT symptoms were in his lower right leg, below the knee. No physician has told him that his DVT began during service. In a September 2010 written statement, M.S., M.D. indicated that the Veteran was treated at a vein care center for his post-thrombotic syndrome. He had a history of idiopathic deep vein thrombosis in the right lower extremity in October 2004 that was related to the Factor V Leiden genetic mutation. In August 2012, the Veteran underwent VA examination. A diagnosis of DVT of the right leg was noted to have been given in October 2004. The Veteran reported that one day in October 2004 he experienced pain in the lateral aspect of his right calf. DVT was diagnosed, and he began treatment. Later in the examination report, the Veteran reported some discomfort in his right calf and distal thigh in the fall of 2003, which resolved. About one year later, he had similar symptoms in the right leg, this time located on the outer aspect of the leg. The symptoms progressed acutely, he sought treatment, and he was diagnosed as having DVT. The claims file was reviewed. The examiner opined that the DVT was less likely than not incurred in or caused by service. The rationale was that the condition of spontaneous DVT was caused after the Veteran's separation from service. He denied a history of an injury or exposure to any chemical or biological hazards during service. Furthermore, the Veteran reported that he had the Factor V Leiden genetic abnormality, which can cause spontaneous DVT. After reviewing the evidence, the Board finds that the claim of entitlement to service connection for DVT must be denied. There are several opinions of record with regard to the etiology of DVT and whether it first manifested during service or is related to service. These have been provided by the Veteran, a VA examiner, and private physicians. In many instances, laypersons are competent to provide medical opinions with regard to diagnosis or etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, in this case, the Board finds that the opinions provided by the VA examiner as well as the private physicians are more probative than the Veteran's statements. Specifically, these medical professionals have experience, education, training, and expertise that the Veteran acknowledged he did not have during the October 2009 Board hearing. A physician's opinion on whether DVT manifested earlier than the symptoms were felt by the Veteran is more probative than the Veteran's opinion on this matter, since it involves particular knowledge about the development of this disease based on manifestations not felt by the Veteran. Therefore, the medical opinions provided by physicians outweigh the lay statements provided by the Veteran. The VA examiner's opinion, along with the opinion contained in a September 2010 private record indicate that the Veteran's DVT was spontaneous, developed after separation from service, and was related to the Factor V Leiden genetic mutation, for which the Veteran sought but was denied service connection. In addition, the medical literature submitted by the Veteran in September 2004 showed that the Factor V Leiden gene mutation was associated with an increased risk of developing DVT. Moreover, August 2012 VA examination was adequate and entitled to substantial probative weight, because the examiner explained the reason for the conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran has consistently denied that he experienced any right leg symptoms prior to his separation from service in August 2003. He has suggested that the pain he subsequently experienced was related to a process that began during service. However, again, the opinions provided by medical professionals that state that the DVT in October 2004 was spontaneous and developed after service are more probative than the Veteran's suggestions as to onset, particularly when the Veteran acknowledges that he experienced no symptoms prior to separation. As noted above, since DVT is not one of the enumerate chronic diseases under 38 C.F.R. § 3.309(a), a discussion of whether the DVT manifested to a compensable degree within a particular time period after separation or whether the Veteran's statements show continuity of symptomatology since separation is unnecessary, as this theory of entitlement is unavailable to the Veteran. 38 C.F.R. § 3.303(b). Nevertheless, the Board notes that none of the treatment records associated with the Veteran's complaints of leg pain report a history of symptomatology that is any earlier than October 2004. It is only in his written statements to VA, beginning in July 2006, that the Veteran asserts that he developed symptomatology prior to that time. The Board finds that the statements of a patient when reporting history to a treating physician are highly probative, since they are given in the process of obtaining medical care, which, in this case was life-saving medical care, according to the Veteran. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Therefore, the statements made to medical providers regarding the onset of symptomatology are more probative than the Veteran's written statements to VA, particularly since the statements suggesting an earlier onset of pain did not begin until July 2006, nearly three years after the Veteran now asserts the symptoms began. As such, the Board finds that the Veteran's report of onset of symptoms to medical providers is more probative than his written statements to VA asserting otherwise. In addition, the Veteran has given varied reports as to the type of pain, testifying in October 2009 that the pain he felt prior to December 2003 was in his right thigh only and then reporting to the August 2012 VA examiner that his pain during this same time period was in his right thigh and lower leg. These statements are contradictory. Therefore, the more probative and credible evidence of record shows that symptoms related to the Veteran's DVT of the right leg began in October 2004. In addition, the opinions provided by medical professionals with regard to onset and etiology of DVT outweigh the lay statements given by the Veteran. Finally, to the extent that the evidence shows that the Veteran's DVT is related to his Factor V Leiden genetic mutation, since service connection for this disability was denied by the RO and not appealed by the Veteran, this theory of entitlement is not available to the Veteran and is precluded by law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to service connection for DVT must therefore be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for deep vein thrombosis of the right leg is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs