Citation Nr: 1429068 Decision Date: 06/26/14 Archive Date: 07/03/14 DOCKET NO. 10-21 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peripheral artery disease (PAD) of the left leg. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from December 1964 to November 1966. This appeal to the Board of Veterans' Appeals (Board) is from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, in support of his claim, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board, since having retired. The Veteran therefore was offered another hearing with different VLJ who would ultimately decide the appeal of this claim, and while the Veteran initially accepted that offer for an additional hearing, he later canceled the hearing and indicated he did not want it rescheduled. There was an initial remand in December 2011 for additional development. And in an August 2012 rating decision, on remand, service connection was granted for varicose veins in lieu of PAD. But since PAD was not specifically adjudicated, the Board again remanded this case in July 2013 for consideration of this particular condition. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Clemons concerned VA's failure to consider a claim of entitlement to service connection for a condition other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was seeking service connection. The Clemons Court found that, where a Veteran's claim identifies a condition without more, it cannot be a claim limited only to that diagnosis, rather, must be considered a claim for any disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms - regardless of how those symptoms are diagnosed or labeled. FINDING OF FACT The Veteran does not have a disability manifested by PAD of the left leg. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for PAD, including as secondary to a service-connected heart disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102. 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant in substantiating a claim for VA compensation and other benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). To this end, VA must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). When the claim is for service connection, the notice should address all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, but also the "downstream" (4) disability rating, and (5) effective date in the eventuality service connection is granted. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). November and December 2006 pre-decisional letters satisfied these obligations. VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the appellant, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim, i.e., more than harmless. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading, much less showing, in this particular instance. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). VA has developed this claim by obtaining all identified records and arranging for an examination. The directives of the Board's remands have been carried out. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran also had a videoconference hearing before a VLJ of the Board, and that presiding VLJ complied with 38 C.F.R. 3.103(c)(2). See also Bryant v. Shinseki, 23 Vet. App. 488 (2010). The presiding VLJ's duties were twofold and consisted of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may have been potentially advantageous to the claimant's position. Bryant, 23 Vet. App. at 488. Since the VLJ identified the issue and potential sources of evidence, the duties under Bryant were satisfied. The Veteran and his representative have not alleged any deficiency in that hearing and, even so, when offered another hearing, the Veteran ultimately canceled it. In sum, the Veteran has been provided opportunities to respond to VA correspondence, and over the course of the appeal has had multiple opportunities to submit and identify evidence potentially supportive of his claim. He therefore has been provided meaningful opportunity to participate effectively in the processing of his claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA has comported with its duties to notify and assist him with this claim, and thus, no additional notification or assistance is required. He has not suffered any undue prejudice that would warrant again remanding, rather than deciding, this claim, and his procedural due process rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria and Analysis In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic portion of it ("Virtual VA" and Veterans Benefits Management System ("VBMS")). The Board has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See Gonzales, 218 F.3d at 1380-81. The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. The law requires only that the Board address its reasons for rejecting evidence favorable to him. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). So service connection may be established either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available, or under 38 C.F.R. § 3.310(a) and (b) by showing the condition claimed is secondarily related to service, meaning either caused or permanently worsened by a service-connected disability. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the competency and credibility of evidence, both lay and medical, which in turn determines its ultimate probative value, account for the evidence that it finds persuasive or unpersuasive, and provide reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, he prevails. See Gilbert, supra. The preponderance of the evidence must be against the claim for benefits instead to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in an actual disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Hence, there is no basis to grant service connection for a claimed disability if the appellant has not shown that he has the disability or that he at least has at some point since the filing of his claim for the disability. According to the holding in Degmetich, VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability. But see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). A March 2006 VA treatment record's assessment was peripheral vascular occlusion (PVO), history of going to wound center, and suspect venous; the Veteran was noted to wear compression hose. The Veteran submitted information from the Merck Manual indicating "peripheral arterial disease (PAD), also called peripheral vascular disease, is atherosclerosis of the extremities (virtually always lower) causing ischemia. Mild PAD may be asymptomatic or cause intermittent claudication; severe PAD may cause rest pain with skin atrophy, hair loss, cyanosis, ischemic ulcers, and gangrene." His June 2011 hearing testimony was that he had a clinical diagnosis of PAD that was first diagnosed between 2002 and 2003. He asserted it was related to his military service because he was on his feet most of the time. His representative read the above Merk Manual definition and noted the Veteran had been wearing compression hose from VA for the past 8 years, so since 2003 or thereabouts, also asserting the PAD may be secondary to the Veteran's heart disease. During a January 2012 VA compensation examination since held, the evaluating physician found no evidence of PAD on objective physical examination. His review of the Veteran's VA treatment records also did not find a diagnosis listed in the problem list and, after contacting the vascular lab, found no diagnosis in those records either. He also reviewed the claims file. He conceded the Veteran has some symptoms that may be compatible with PAD, namely, cramps in his legs when he walked too much, but he explained these could be nonspecific sometimes. He pointed out the Veteran had no treatment for PAD. The Board's review of the Veteran's treatment records equally does not reveal an actual diagnosis of PAD. And since the clinical evidence does not contain a diagnosis of PAD supporting the Veteran's contention that he has it, in other words this disability currently or at some point since the filing of this claim, a preponderance of the evidence is against this claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). The benefit-of-the-doubt doctrine therefore does not apply, so the claim is denied on both direct and secondary bases. ORDER The claim of entitlement to service connection for PAD is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs