Citation Nr: 1615573	
Decision Date: 04/18/16    Archive Date: 04/26/16

DOCKET NO.  09-47 288	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for a left leg disability, to include venous stasis.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Garcia, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to May 1977.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

In January 2011, a Board videoconference hearing was held before the undersigned Veterans Law Judge.  A transcript of the proceeding is associated with the Veteran's claims file.

This matter was previously before the Board in April 2011 and March 2014, when it was remanded for additional development.  

The Virtual VA paperless claims processing system contains treatment records from the Memphis VA Medical Center (VAMC) dated from February 1996 to October 2003, and a brief from the Veteran's representative dated in January 2014.  All other documents on Virtual VA are either duplicative of the evidence of record or not pertinent to the present appeal.  

The issue of whether the Veteran has submitted new evidence in support of a claim of entitlement to helpless child benefits has been raised by the record in VA Forms 21-4142 dated in March and April 2014 that were filed after the March 2014 rating decision denying entitlement to such benefits, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).  


FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran's venous stasis was initially manifested during, or is otherwise etiologically related to, her active military service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for a left leg disability, to include venous stasis, have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Stegall Concerns

As noted in the Introduction, the Board previously remanded the Veteran's claim for additional development.  In pertinent part, the Board remanded the claim in April 2011 to attempt to obtain VA and private medical treatment records.  The claim was also remanded to schedule the Veteran for a VA examination to determine the nature and etiology of any left leg disability that might be present.  The Veteran was afforded a VA examination in August 2011.  However, in March 2014, the claim was remanded to obtain an addendum medical opinion, as the Board found that the VA examiner failed to provide a sufficient rationale for her etiology opinion.  

As will be explained further below, the RO has obtained available treatment records.  Additionally, the Veteran was afforded a VA vascular diseases examination in August 2011.  In April 2014, the VA examiner rendered a supplemental opinion pursuant to the Board's March 2014 remand directives.  Thus, the Board finds substantial compliance with its prior remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders).  



II.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended the VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

	Duty to Notify

When the VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence the VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-85 (2006).  In general, the VA must provide VCAA notice to a claimant before the initial unfavorable adjudication by the RO. See Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).  

The RO provided pre-adjudication VCAA notice, by letter, in December 2008.  In pertinent part, this letter notified the Veteran of the evidence needed to substantiate her service connection claim, as well as the information and evidence that must be submitted by the Veteran, the information and evidence that would be obtained by the VA, and the provisions for disability ratings and for the effective date of claims.  Therefore, the Board finds that the VA has fulfilled its duty to notify the Veteran.  

	Duty to Assist

The VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim.  See 38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  Service treatment records, post-service treatment records, and lay statements have been associated with the record.  

Following the April 2011 remand, the RO requested treatment records from the Birmingham VA Medical Center (VAMC) dating in or around the early 1980s, the Memphis VAMC dating in or around 1989, and the Louisville VAMC dating from 2003 onward.  The RO obtained treatment records from the Louisville VAMC, but it was unable to obtain records from the Birmingham VAMC.  As set forth in an October 2011 memorandum and formal finding on the unavailability of VA medical treatment records, all procedures to obtain the Birmingham VAMC treatment records were correctly followed, all efforts to obtain the needed information were exhausted, and further attempts to obtain the records would be futile.  The memorandum also provides that the Veteran was informed of the unavailability of these records and that the Veteran reported that she did not possess copies of these records.  Similarly, a June 2012 memorandum and formal finding on the unavailability of VA medical treatment records provides that treatment records from the Memphis VAMC dated between January 1989 and January 1996 were unavailable for review; medical records from the Memphis VAMC were only found for treatment dating from 1996 forward.  The memorandum maintains that all procedures to obtain these treatment records were correctly followed, all efforts to obtain the needed information were exhausted, and further attempts to obtain the records would be futile.  The Veteran was informed of the unavailability of these records in a letter dated in May 2012, to which the Veteran did not respond.  The Board observes that the VA treatment records associated with the Veteran's claims file include records from the Memphis VAMC dating from February 1996 forward.  In light of the above, the Board finds that available VA treatment records have been associated with the Veteran's claims file and that any further attempts to obtain treatment records from identified VA facilities would be futile.  See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2).  

The Board also finds that all appropriate attempts were made to obtain private treatment records.  In February 2009, the Veteran submitted a release form authorizing the VA to obtain treatment records from the Hellen Keller Memorial Hospital.  The RO requested the treatment records in April 2009, and the hospital responded by noting that it was unable to locate the Veteran.  In its May 2009 rating decision, the RO notified the Veteran of the hospital's negative response.  In May 2011, following the Board's April 2011 remand, the AOJ sent the Veteran a letter requesting that she submit release forms to obtain private medical treatment records.  The Veteran failed to respond to the VA's request.  The Board observes that in March and April 2014, the Veteran submitted several authorization release forms pertaining to medical treatment for her son.  As there is no indication that these records pertain to the instant claim, the Board will not address these release forms any further with respect to its duty to assist.  Given the facts noted above, the Board finds that the RO made reasonable efforts to obtain adequately identified private treatment records, and no further efforts are required for the VA to comply with its duty to assist.  See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1); Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (noting that the VA's duty to assist is not a "one-way street" and that a claimant has a duty to cooperate with the VA in developing evidence to support a claim).  

The VA must provide a medical examination or obtain a medical opinion when necessary to decide a claim.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  In August 2011, the Veteran was afforded a VA vascular diseases examination.  The VA examiner reviewed the Veteran's claims file, conducted an examination of the Veteran, and provided an etiology opinion regarding the Veteran's claimed left leg disability.  In its March 2014 remand, the Board found that the etiology opinion did not include a sufficient rationale; as such, the claim was remanded for a supplemental medical opinion.  A supplemental medical opinion was obtained in April 2014.  Moreover, the opinion is thorough and fully adequate, as the examiner included sufficient rationale to support her opinion.  Therefore, the Board finds that an additional medical examination or opinion is not necessary to decide the Veteran's claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'").  

As part of the VA's duty to assist, in January 2011, the Veteran was afforded a Board videoconference hearing pursuant to her request.  To comply with 38 C.F.R. § 3.103(c)(2), the Veterans Law Judge presiding over a hearing must fulfill two duties:  (1) to fully explain the issue, and (2) to suggest the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  See Bryant v. Shinseki, 23 Vet. App. 488, 497 (2010).  During the instant videoconference hearing, the undersigned Veterans Law Judge effectively outlined the issues on appeal and suggested that any evidence that may be advantageous to the Veteran's position be submitted.  To the extent that this was not done, the Veteran and her representative at the hearing demonstrated sufficient actual knowledge of what was required.  Moreover, neither the Veteran nor her representative have asserted that the VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.  

As there is no indication of any outstanding relevant evidence, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to her claim is required for the VA to comply with its duty to assist.  

III.  Entitlement to Service Connection

	Legal Criteria

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered, or disease contracted, in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the 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.  E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a).  

Service connection may be granted for any disease that is initially diagnosed after service 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).  Additionally, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis of record is negative.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When considering evidence and determining its probative value, the VA considers both the competency and the credibility of the witness.  See Layno, 6 Vet. App. at 469.

To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail.").  

	Factual Background 

The Veteran is seeking service connection for a left leg disability, to include venous stasis.  As set forth in her testimony from the January 2011 Board videoconference hearing, the Veteran contends that she hurt her leg during basic training, after which her leg began to swell.  The Veteran maintains that she received treatment for her injury at sick call and that X-rays were negative for any conditions.  The Veteran reported that while she was in service, her leg would occasionally ache and swell around her ankle, but she did not seek treatment because she was previously told that there was no identified abnormality or condition.  Veteran detailed that over the years, her leg has given her problems 2 or 3 times per year.  

In an October 1974 report of medical history on entrance into service, the Veteran denied any history of leg-related issues, such as leg cramps or bone, joint, or other deformities.  An October 1974 report of medical examination indicates that the Veteran's lower extremities were clinically evaluated as normal on entrance into service.

A November 1974 family planning clinic report notes no history of diseases of the blood vessels or legs.  In December 1974, the Veteran received treatment for a right heel injury.  

In an April 1977 report of medical history on discharge from service, the Veteran denied any history of leg-related issues, such as leg cramps or bone, joint, or other deformities.  No abnormalities or defects are noted in the Veteran's April 1977 report of medical examination.  

An October 1995 VA physician's assistant's note provides that the Veteran complained of bilateral lower ankle swelling and that the Veteran had a history of deep vein thrombosis that usually resolved after resting.  

A March 2002 VA women's health note indicates that the Veteran complained of left leg swelling.  At an August 2002 VA primary care treatment, the Veteran complained of left leg swelling during the preceding month.  The assessments regarding the Veteran's left leg swelling included advising the Veteran to stop smoking and to administer ted hose.  

A May 2004 VA nursing note provides that the Veteran complained of leg swelling for approximately one month.  

At a May 2007 VA primary care treatment, the Veteran reported intermittent lower extremity edema over a few years.  On physical examination, there was trace edema at the lower extremities bilaterally.  The assessment was "likely venous stasis, but will [rule out] other causes."  The treatment plan included leg elevation and a prosthetics consultation for compression hose.  A December 2007 primary care treatment note indicates occasional lower extremity edema; the assessment remained the same.

A December 2008 VA primary care treatment note provides that the Veteran experienced some lower extremity edema, particularly after a long day.  There was no edema noted on physical examination.  The assessment was "venous stasis, controlled."

An April 2009 VA primary care treatment note indicates although the Veteran's chronic lower extremity edema had worsened, it improved after the Veteran took 5 days off of work and elevated her legs.  On physical examination, there was trace edema bilaterally.  

At a February 2010 VA primary care treatment, the Veteran denied any lower extremity edema, and her venous stasis was noted as controlled.  

The August 2011 VA examination report lists a diagnosis of venous stasis, which is characterized as varicose veins or other type of post-phlebitic syndrome.  The examiner noted that with respect to the Veteran's left leg, she had asymptomatic visible varicose veins and aching and fatigue of the leg following prolonged standing or walking.  The examiner indicated that the Veteran's symptoms were relieved by compression hosiery.  The examiner also noted that the Veteran had persistent stasis pigmentation or eczema, intermittent edema, and persistent edema that was incompletely relieved by elevating her leg.  The examiner opined that the Veteran's left leg condition was less likely than not incurred in, or otherwise caused by, the Veteran's active service.  The examiner reasoned that the Veteran's service treatment records contained no complaints regarding the Veteran's left distal leg during military service and that there was no trauma or other event documented in the Veteran's service treatment records that was associated with, or causal to, venous stasis or varicose veins.  

The same VA examiner rendered a supplemental medical opinion in April 2014.  The examiner noted that the Veteran's current left leg disability, venous disease with consequent venous stasis, was first noted in primary care records dated in 2002, when the Veteran complained of left leg swelling.  The examiner's opinion remained that the Veteran's left leg condition was less likely than not related to her active service.  The examiner noted that venous stasis, or venous blood pooling, is associated with varicose veins, which are caused by weakened valves and veins in the legs.  The examiner provided that varicose veins often run in families and that aging can increase the risk of developing varicose veins.  Additionally, as being overweight, pregnant, or having a job that requires standing for long periods of time can increase pressure on one's leg veins, these conditions or activities can lead to varicose veins.  In this regard, the examiner noted that the Veteran is obese and has had two pregnancies.  The examiner also provided that medical literature supports an association between a history of deep vein thrombosis and subsequent varicose veins, and based on the October 1995 VA physician's assistant's note, the Veteran was noted to have a history of deep vein thrombosis.  However, as will be discussed below, with respect to any purported history of deep vein thrombosis, the Board observes that an August 1995 VA physician's assistant's note provides that the Veteran denied a history of deep vein thrombosis.  

	Analysis

As an initial matter, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence that is favorable to the Veteran.  

As noted above, to establish service connection for the Veteran's claimed left leg disability, there must be evidence of: a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the two.  See Shedden, 381 F.3d at 1167.  

Given the Veteran's diagnosis of venous stasis, the Shedden element of a current disability is met.  See id.  With respect to whether the Veteran incurred a disease or injury during service, the Veteran has indicated that she hurt her leg during basic training and that she sought treatment shortly thereafter.  Although the Veteran was treated for a right heel injury in December 1974, the Veteran's service treatment records are negative for complaints of, or treatment for, a left leg injury or condition.  Nevertheless, the Veteran is competent to report her medical history and observable symptoms, and the Board has no reason to doubt her claim that she hurt her left leg during basic training.  See, e.g., Layno, 6 Vet. App. at 469-70.  Thus, resolving doubt in the Veteran's favor, the Board finds that the Veteran has satisfied the Shedden element of an in-service incurrence of a disease or injury.  See 38 U.S.C.A. § 5107(b); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that the Board cannot determine that lay evidence lacks credibility simply because it is unsupported by contemporaneous medical evidence).  

With respect to the required nexus element, the weight of the evidence of record is against a finding that the Veteran's left leg disability is related to her active service.  

In reaching this conclusion, the Board has carefully considered the Veteran's lay assertions.  The Board acknowledges that the Veteran is competent to report her medical history and observable symptomatology, such as any swelling of the left leg.  See, e.g., Layno, 6 Vet. App. at 469-70 (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted").  Nevertheless, determining the potential cause(s) of a venous disorder is beyond the scope of lay observation; thus, a determination as to the etiology of the Veteran's left leg disability is not susceptible of lay opinion and requires specialized training.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, 6 Vet. App. at 469-70.  As such, the Veteran's lay assertions do not constitute competent evidence concerning the etiology of her left leg disability.  See 38 C.F.R. § 3.159(a)(1) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.").  

Here, there is no competent evidence suggesting a medical nexus between the Veteran's left leg disability and her active service.  Although the Veteran has maintained that her left leg disability began during service, this assertion is inconsistent with other, more probative evidence of record.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  In this regard, the Board finds that the August 2011 VA examination report and April 2014 VA medical opinion, taken as a whole, offer the strongest and most persuasive evidence regarding the etiology of the Veteran's left leg disability.  

As noted in the August 2011 VA examination report and April 2014 VA medical opinion, there were no complaints pertaining to the Veteran's left distal leg during active service.  At her separation examination, the Veteran specifically denied any issues pertaining to her left leg, and no abnormalities are noted in the April 1977 report of medical examination.  The examiner also detailed that the Veteran's service treatment records are negative for any trauma or other event that might be associated with, or causal to, venous stasis or varicose veins.  Additionally, the examiner stressed that the Veteran's venous disease was first documented in primary care records dated in 2002, when she complained of left leg swelling.  

While the Veteran's reports of intermittent leg swelling since service cannot be rejected based solely on the lack of corroborating medical evidence, a lack of medical documentation may be considered along with other evidence.  See Buchanan, 451 F.3d at 1336-37.  Here, the examiner offered likely causes of the Veteran's left leg disability based on her medical history.  As documented in the April 2014 VA examination report, venous stasis is associated with varicose veins.  According to the examiner, the Veteran's left leg disability may be due to her obesity and/or history of two pregnancies, as being overweight or pregnant increases the pressure on one's leg veins and can lead to varicose veins.  The examiner also suggested that a possible cause of the Veteran's left leg disability is a history of deep vein thrombosis, given the October 1995 notation in the Veteran's VA treatment records of a history of deep vein thrombosis.  The Board observes that the record contains inconsistencies with respect to a history of deep vein thrombosis; thus, the Board affords limited probative value to this portion of the examiner's opinion.  Nonetheless, based on the examiner's discussion of the Veteran's medical history and likely causes of the Veteran's left leg disability, the examiner offered adequate explanations to support her opinion that the Veteran's left leg disability is less likely than not related to active service.  Given the other reasons relied upon by the examiner, the Board finds that further development in the form of obtaining a clarifying medical opinion is unnecessary.

As there is no competent evidence or opinion suggesting that there exists a medical nexus between the Veteran's left leg disability and her active duty service, the weight of the evidence is against a finding that the disability is etiologically related to the Veteran's active service.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  As the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Service connection for a left leg disability, to include venous stasis, is denied.  



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs