Citation Nr: 1342552	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  03-19 806	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for bilateral peripheral vascular disease (PVD), with extensive vascular calcification.


REPRESENTATION

Appellant represented by:	Naomi E. Farve, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

A. C. Mackenzie, Senior Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to May 1968, with subsequent service in the Army Reserves and National Guard from July 1968 to March 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  This case was remanded previously in July 2008, February 2010, April 2011, and June 2013.  A video conference hearing was conducted addressing the issue on appeal in April 2009.  A previous video conference hearing, from November 2006, addressed separate issues not presently on appeal.


FINDING OF FACT

The competent medical evidence of record, on balance, does not show a causal connection between the claimed bilateral PVD, with extensive vascular calcification, and service.


CONCLUSION OF LAW

Bilateral PVD, with extensive vascular calcification, was not incurred in or aggravated by service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

In this case, the Veteran received 38 C.F.R. § 3.159(b) notice as to this claim in January 2006, prior to the RO's August 2006 denial.  This notice preceded the Dingess/Hartman decision and did not include the notice specifications addressed in that decision.  Such omission, however, is not prejudicial; as service connection is being denied, this case does not give rise to the assignment of disability evaluations or effective dates.  

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA has obtained service treatment and private and VA medical records of the Veteran.  In the June 2013 Board remand, the agency of original jurisdiction was requested to contact the Veteran in furtherance of obtaining medical records from three private providers.  A letter addressing this matter was furnished to the Veteran in July 2013, and in August 2013 the Veteran furnished private medical records from one of the three cited providers.  This evidence was reviewed in an August 2013 Supplemental Statement of the Case, and the Board is satisfied that the actions taken post-remand satisfy the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Additionally, the Veteran was afforded a VA examination in December 2011, and, to the extent that the etiology opinion contained in the corresponding VA examination report was not adequate, a follow-up opinion was obtained from a VHA doctor in November 2012.  

The Board notes that efforts to obtain treatment records from service in Egypt in 1999 to 2000 were unsuccessful.  These efforts, including unsuccessful requests to the unit in question and communication with the Veteran, resulted in the obtaining of service personnel records, but no medical records.  A formal finding as to the unavailability of corresponding service treatment records was made in November 2011, and the Board concludes that further efforts to develop the record in this regard would be futile.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (VA has a heightened obligation to explain findings and carefully consider the benefit-of-the-doubt rule where government records are presumed destroyed).

Finally, the claims file contains a copy of an October 2002 Social Security Administration (SSA) decision indicating a grant of disability benefits.  The decision references one unrelated physical disability but contains no references to PVD or any other vascular diseases, and, although the Veteran mentioned the SSA grant during his hearing, he did not in any way suggest that the grant was predicated in part or in whole on PVD or another vascular disease.  For this reason, the Board finds that efforts to obtain SSA medical records are not required in this case, as there exists no reasonable possibility that such records would further substantiate the Veteran's claim.  See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010).

Overall, the Board finds fully adequate compliance with VA's duties to notify and assist in this case, and any deficiencies, as noted above, have either been cured or are not prejudicial to the Veteran.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Also, certain chronic diseases, including cardiovascular-renal diseases, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

For service connection purposes, the term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  38 U.S.C.A. § 101(24) makes a clear distinction between those who have served on active duty from training, as well as those who have served on inactive duty for training.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

During his period of active duty service from June 1966 to May 1968,  the Veteran denied any cramps in the legs, and the vascular system (varicosities, etc.) was clinically normal during both his April 1966 pre-induction examination and the May 1968 examination upon separation from active duty.  

In a December 1987 letter, Dr. R.M. noted that the Veteran had severe orthopedic problems in the feet secondary to extensive vascular calcifications, and recommended that the Veteran no longer work for the City of New Orleans.  In a June 1988 letter to the Veteran's civilian employer, Dr. W.G. stated that the Veteran had PVD with substantial vasospasm, treated with medication, and recommended that he reduce his activity level to minimize time on his feet and ambulating.  

The Veteran states that he was treated for PVD by military providers while serving in Egypt in 1999 or 2000.  Service personnel records confirm that he served in Egypt for at least 64 days during the period from August 16, 1999 to March 25, 2000.  However, any service treatment records for the Veteran's period of service in Egypt in 1999 or 2000 have been found to be unavailable.  

The Board has considered the VA treatment records contained in the claims file.  A December 2000 record reflects reports of pain in the right leg for one to two weeks in the back of the thigh and around to the front calf, with a diagnosis of radiculopathy.  A May 2003 record indicates complaints of the "feet hurting again," with a diagnosis of feet pain with pes planus.  A December 2003 record again reflects an assessment of pes planus.  A January 2004 VA treatment record reflects complaints of the legs feeling cold if the Veteran sat, stood, or walked for too long or more than one block.  A physical examination showed good pulses bilaterally, normal hair growth, skin warm and moist, and no signs of arterial insufficiency.  The assessment was pain from arthritic feet, and the provider reassured the Veteran that he did not have poor circulation.  A November 2008 VA vascular clinic record notes complaints of bilateral leg pain since 1983.  

As to relevant private treatment records, records from East Jefferson General Hospital dated in March 2005 reflect that the Veteran underwent an aortogram with an "[i]ndication" of peripheral vascular disease and claudication.  A July 2006 record indicates bilateral leg pain when ambulating over a block, originating in the feet and traveling up to the calves, and also the feet and the calves becoming cold.  The Veteran stated that he had the same problem in 1980, but it resolved on its own.  He reported pain in the bilateral ankles for three to four years with radiating pain to the bilateral legs.  The provider assessed bilateral leg pain upon ambulation of short distances possibly secondary to vascular intermittent claudication, which began three to four years ago.  Following further private treatment in December 2006 and October 2007, the Veteran underwent a procedure in December 2007 at a private facility for claudication of the left lower extremity with moderate left lower extremity ischemia.  Another test for PVD was conducted in January 2008.

In December 2011, the Veteran was afforded a VA artery and veins examination.  At that time, he reported being diagnosed with PVD in approximately 1995.  He stated that he developed leg pain with ambulation that was later determined to be PVD.  The VA examiner diagnosed PVD in both lower extremities and opined that such disability was less likely than not incurred as a result of the Veteran's military service.  He reasoned that there were no records documenting complaints or treatment during service.  

A further medical opinion, from a VHA doctor who reviewed the claims file, was provided in November 2012.  The doctor first noted that there was no evidence of PVD documented prior to 1999.  There was a lack of positive findings on physical examinations and no current complaints of claudication, rest pain, or tissue loss prior to that time.  The only positive finding was the private December 1987 statement as to "severe orthopedic problems with both feet secondary to extensive vascular calcifications."  Without further evidence of the basis for this statement, there was no evidence of clinical PVD.  There was no documentation of an abnormal pulse examination during military service, no symptoms, no positive vascular findings, and no vascular testing to support the claim of PVD prior to 1999.  The Veteran was noted to have risk factors for the development of atherosclerosis, with documented evidence of hyperlipidemia and smoking.  There was no evidence of disease or injury during service in Egypt in 1999 or 2000 that would have accelerated the progression of PVD.  The diagnosis of "flat feet" was noted to not contribute to the diagnosis or to the progression of PVD.  Rather, the Veteran's PVD progressed through the years, as occurs naturally.  There was no evidence to attribute this progression of disease to any active military service.  Moreover, walking and exercise were noted to not contribute to the progression of PVD.  

The claims file also contains a March 2013 letter from Dr. H.A.P., who reported treating the Veteran for "many years."  The doctor noted reviewing "the summary of" the Veteran's military history and found it somewhat difficult to state that "any of this" was due to arterial insufficiency based upon the information supplied.  Most of the problems cited by the Veteran could be due to venous insufficiency and problems with varicose veins.  The doctor could not say that the condition of varicose veins was not in some way related to military service.  However, it was "unlikely" that he developed them due to military service.  It was noted to be "concerning" that he had never been given Vitamin K in the past, "which I suppose would be due to a coagulopathy yet [the Veteran] has never mentioned any problems of coagulopathy in the years that I have known him."  The doctor further stated that he did not feel that any of the required service would have worsened the Veteran's arterial disease, but it could have worsened preexisting venous insufficiency.  

In this case, the Veteran was not treated for corresponding vascular symptoms during his period of service from 1966 to 1968 or for many years thereafter.  There exists no documentation of treatment for PVD during his service in Egypt, which he has asserted happened during 1999 and 2000.  The VHA opinion from November 2012 contains an unambiguous opinion indicating that the PVD occurred as a result of natural progression "throughout the years" and had not in any way been shown to be related to any incident of service.  This opinion was based upon a claims file review and is supported by a detailed rationale.  It is of far greater probative value than Dr. H.A.P.'s substantially less definite opinion (e.g., "could have worsened").  In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature.  See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative).  

The Board has considered the Veteran's lay opinion in this case.  The Veteran has asserted a history of leg and foot pain during service.  He is certainly competent to observe and describe pain-related symptoms.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board also finds no basis to question his credibility and the sincerity of his credentials.  He is not, however, competent to ascertain whether such symptoms are attributable to PVD, as opposed to a different diagnosis (e.g., flat feet, or orthopedic or neurological symptoms of the legs).  The rendering of a competent opinion that such symptoms are due to PVD is the province of trained and credentialed medical professionals, and in this instance the Veteran has not been shown to have medical training, credentials, or other relevant expertise.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); 38 C.F.R. § 3.159(a)(2).  For this reason, the Veteran's lay contentions as to PVD are of no more than very minimal probative value, particularly as compared to the November 2012 VHA opinion, rendered by a medical doctor who reviewed the claims file.

Overall, the preponderance of the evidence is against the Veteran's claim for service connection for bilateral PVD, with extensive vascular calcification, and this claim must be denied.

In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for bilateral PVD, with extensive vascular calcification, is denied.


____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs