Citation Nr: 1335716 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-24 662 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for deep vein thrombosis of the bilateral lower extremities, claimed to be associated with service-connected arthritis and/or diabetes mellitus. REPRESENTATION Appellant (the Veteran) is represented by: The American Legion ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from November 1970 to August 1972, and from May 1985 to May 2001. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the RO in Winston Salem, North Carolina. The Board notes that the October 2013 written argument submitted by the Veteran's representative was not limited to the issue on appeal. The Veteran's representative asserted that the Veteran's tinnitus has clearly and unmistakably merited service connection since the February 23, 2007 claim. The Board notes that issue of service connection for tinnitus is not on appeal; indeed, service connection was granted for tinnitus in an October 2001 rating decision, effective February 23, 2007. Thus, there appears to be no matter raised for referral to the RO regarding this assertion. The representative also stated that "[w]e must challenge the denial of service connection for gout on October 5, 2010." The Board notes that, as a purported notice of disagreement with the October 2010 rating decision, this comes about 2 years too late. The appeal period for the October 2010 rating decision expired on October 22, 2011. The provisions governing applications to reopen previously denied and final claims are applicable should the Veteran wish to file such an application. See 38 U.S.C.A. §§ 5108 (West 2002); 38 C.F.R. §§ 3.156 (2013). The representative also asserted that the Veteran was unable to work in 2008 because he was waiting for ankle surgery, and he merited schedular consideration for TDIU effective October 12, 2007. The Board acknowledges that, where there is evidence of unemployability raised by the record during a rating appeal period, TDIU is an element of the rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the Veteran has not appealed the assignment of any disability rating (an increased rating claim). Therefore, to the extent the representative is attempting to attach a claim for TDIU to the disability ratings assigned by the RO in a particular rating decision, no such rating has been appealed. Accordingly, the Board does not have jurisdiction over the issue of TDIU entitlement. Nevertheless, as a claim is raised by the record, the Board refers the issue of TDIU entitlement to the RO for appropriate action. See 38 C.F.R. §19.9(b)(2013). Finally, the representative noted that the Veteran has developed problems in joints other than those presently service connected, such as right hip bursitis. According to the representative, "[s]ome diabetic arthropathy could well be at work here as well." These issues are not before the Board on appeal; however, as they are raised by the record but have not been adjudicated by the RO, the Board also refers them to the AOJ for appropriate action, if needed. See 38 C.F.R. §19.9(b)(2013). In this regard, the Veteran may wish to speak with his representative in order to provide a clear list of claims he wishes to file (if any). The clearer the list, the less delays will occur in the full adjudication of his case at the VA. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The evidence in favor of a a current chronic disability manifested by episodes of deep vein thrombosis has reached the point of relative equipoise with the evidence against a current disability. 2. The evidence in favor of an etiologic relationship between deep vein thrombosis and the Veteran's service-connected diabetes mellitus has reached the point of relative equipoise with the evidence against such a relationship. CONCLUSION OF LAW With resolution of all reasonable doubt in the Veteran's favor, deep vein thrombosis is proximately due to or a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that there has been minimal evidentiary development regarding this issue. A medical opinion regarding nexus has not been obtained, nor has an opinion regarding the existence of a current chronic disability manifested by episodes of deep vein thrombosis. In denying the claim, the RO acknowledged an episode of deep vein thrombosis in October 2001, but found that there was no chronic residual. However, of record at the time of the January 2008 denial was private medical evidence showing a prior episode of deep vein thrombosis in August 2001 and a subsequent episode of deep vein thrombosis in October 2006. Moreover, the Veteran asserts that he is and has been on a regular prescription of Warfarin (Coumadin) to treat and prevent future episodes of deep vein thrombosis. Treatment reports support the Veteran's assertion. An August 2001 treatment record shows a diagnosis of deep vein thrombosis involving the popliteal vein with a prescribed dose of Coumadin of 10 mg daily. A subsequent episode in October 2001 is also recorded, and the treatment record reveals that the daily dose of Coumadin was in place. Records from the August 2006 episode also show a prescription for Coumadin. An October 2007 preoperative report concerning a proposed left ankle surgery noted that, among the Veteran's current medications was Warfarin. An October 2007 private treatment report notes that the Veteran is on "chronic Coumadin." Of particular significance, a November 2007 preoperative evaluation notes that Coumadin should be withheld for 5 to 7 days prior to surgery and that the Veteran would need post-operative deep vein thrombosis prophylaxis. Thus, while the Board acknowledges that there is no specific finding by a medical professional of a current chronic disability of deep vein thrombosis, there is no specific finding to the contrary, and the clinical records show an ongoing course of treatment for prevention of deep vein thrombosis since the initial August 2001 episode. The Board finds it highly unlikely and contrary to logic that medical professionals responsible for the Veteran's care would prescribe and maintain an ongoing course of medication without an underlying condition. The lack of a specific current diagnosis in this case would appear to be based at least in part on the fact that this question has never been asked of a VA examiner or clinician. The Veteran was afforded a VA examination in October 2007 to evaluate the complications of diabetes mellitus, and while deep vein thrombosis was not included among the diagnoses in that report, it is notable that none of the Veteran's prior episodes of deep vein thrombosis were mentioned by the examiner, nor was his prescription for Coumadin. Indeed, the examiner made a notation that there was no history of peripheral vascular disease or intermittent claudication (cramping in the lower leg while walking or exercising caused by blocked arteries in the leg). This notation would appear to be in direct conflict with the Veteran's recent (October 2006) episode of these exact complaints. The Board notes that, at the time of the October 2007 VA examination, the Veteran was asserting to VA that his deep vein thrombosis was related to arthritis, not diabetes mellitus. It may simply be that he did not report his symptoms at the examination because he thought they were not pertinent. In any event, based on the VA examiner's inaccurate account of the Veteran's symptoms and diagnostic history, the Board places no probative weight on the absence of a diagnosis of deep vein thrombosis in October 2007. Despite the lack of a specific reference to deep vein thrombosis as a current disability, the Board finds that the evidence showing past confirmed episodes of deep vein thrombosis, in addition to a long-term and ongoing course of preventive medication for deep vein thrombosis, is of at least equal weight in determining the presence of a current chronic disability. The evidence for and against this element has therefore attained the point of relative equipoise. With resolution of reasonable doubt in the Veteran's favor, the Board finds that there is a current disability of deep vein thrombosis and the first element necessary for a grant of service connection on a secondary basis is met. There is no dispute regarding the second element. Service connection is in effect for diabetes mellitus. Regarding nexus, as noted above, the Veteran has not been afforded a medical opinion in this case. While the Board could certainly remand the claim to ensure that an examination and opinion were provided, the Board finds that this is not necessary. The Veteran and his representative have submitted numerous medical articles and medical treatise evidence demonstrating a substantial increase in risk for development of coronary, cerebrovascular, and peripheral arterial disease, including platelet aggregation and a propensity for thrombosis in patients diagnosed with diabetes mellitus. In light of this evidence, the Board finds that the evidence in favor of a nexus between the Veteran's deep vein thrombosis and his service-connected diabetes mellitus has attained relative equipoise with the evidence against such a nexus. With resolution of all reasonable doubt in favor of the claim, the Board finds that service connection for deep vein thrombosis of the lower extremities is warranted. As the Board is granting the claim, the claim is substantiated, and there are no further duties under the Veterans Clams Assistance Act of 2000. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2); VAOPGCPREC 5-2004. The nature and extent of this disability is not before the Board at this time. ORDER Service connection for deep vein thrombosis is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs