Citation Nr: 1751030 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 14-03 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a hematological disorder, claimed as chronic blood clots. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1998 to April 2003. This matter is before the Board of Veterans Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction is currently held by the RO in Reno, Nevada. The Veteran's claims were remanded by the Board in June 2015. The remand required the RO to take appropriate steps to request any updated treatment records and to afford the Veteran a new VA examination. In compliance with the remand directives, a VA artery and vein examination was obtained. There has been substantial compliance with the remand directives, and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. A hematological disorder, variously diagnosed as deep vein thrombosis, blood clots of the legs, and pulmonary embolism, was not manifest in service. 2. A hematological disorder is not attributable to service. CONCLUSION OF LAW A hematological disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Except for challenging the qualifications of the December 2015 VA examiner and compliance with remand instructions, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Service Connection To establish service connection a Veteran must generally show: "(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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). III. History The Veteran served in the U.S. Coast Guard. He implied in his claim that he experiences chronic blood clots that are attributable to his service but has not made a specific statement that the manifestations began in service or were caused or aggravated by any aspect of service. The Veteran's July 1997 entrance examination was clinically normal for the vascular system and lower extremities. A contemporary report of medical history indicates the Veteran denied excessive bleeding and also denied any illness or injury other than those already noted. The file contains a number of outpatient treatment records for an unrelated orthopedic disorder, and there does not appear to be an exit examination of record other than a 2003 dental examination. On July 27, 2003, the Veteran sought private emergency room treatment for sharp right sided chest pain. The initial diagnosis was pulmonary embolism. The Veteran transferred for treatment for three days at another private facility. In a July 27 admission summary and in a July 31, 2003 discharge summary, the attending physician noted the following history. The Veteran was engaged in a vigorous business as a painter with no history of injury. Thirteen days earlier, he had awakened with a painful left leg. The Veteran went to his primary care provider in who obtained a Doppler study on the left lower extremity which showed a deep vein thrombosis (DVT) and he was prescribed anti-coagulant medication. The physician noted a relevant family history in that his mother had a deep venous thrombosis and so did his aunt and uncle. He was unaware of any family testing that had been done for thrombophilia. The diagnosis was deep vein thrombosis. The pulmonary embolism was found to be an anomaly that occurs with deep vein thrombosis in patients using anticoagulant therapy. He did not require surgical intervention as the physician assessed the pulmonary embolism as incomplete anti-coagulation. A February 2005 VA emergency department note indicates the Veteran had a prior medical history of DVT in his left lower extremity and PE (pulmonary embolism), and was treated with anticoagulation 18 months ago but had stopped using the medication for the last year and had been working long shifts as a security officer for 12 hours per day on his feet. He presented with what he called identical symptoms of his DVT and PE. He stated that he developed left lower extremity pain and swelling 10 days ago although he presented with complaints of dyspnea since approximately 2100 that day. Laboratory testing identified Factor V Leiden deficiency. A September 2010 VA treatment record indicates the Veteran had Factor V Leiden deficiency, with multiple episodes of lower extremity DVT. A December 2010 VA treatment record indicates the Veteran had recurrent DVT, which was Factor V Leiden. A March 2011 treatment record indicates the Veteran had recurrent DVT. Subsequent VA treatment records show continued medical therapy for which the attending physicians recommended as a life-long requirement. In his December 2013 VA Form 9, the Veteran inconsistently reported that "neither of my parents have this condition." An October 2014 VA treatment record also shows impressions of chronic venous insufficiency. The Veteran was seen in the VA ER/ICU with acute DVT/PE while on dabigatran on in November 2014. He had previously failed warfarin and had been maintained on chronic, therapeutic low-molecular-weight heparin for years. In January 2015, he was prescribed an alternative anticoagulant. A March 2015 VA treatment record from the Sierra Nevada HCS indicates the Veteran had recurrent DVT. He had heterozygous Factor V Leiden, an inherited genetic disorder that can increase the chances of developing abnormal blood clots. In June 2015, the Board remanded the claim for the agency of original jurisdiction to obtain current VA outpatient treatment records, any identified and authorized private treatment records, and a VA examination to determine the nature and etiology of the chronic blood clots. The Board ordered that the examination be performed by a hematologist, if possible. The Board directed that the examiner should opine whether the Veteran's chronic blood clots are a congenital defect or congenital disease. If the Veteran's chronic blood clots are a congenital defect, then the examiner was asked to identify any disability superimposed on any identified congenital defect. If there is a superimposed disability, the examiner is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability is related to active service. If the Veteran's chronic blood clots are a congenital disease, then the examiner is asked to state whether it is at least as likely as not (i.e, a 50 percent or greater probability) that such congenital disease was aggravated by active service. The Veteran was afforded a December 2015 VA examination. A VA physician's assistant confirmed impressions in the VA treatment records of DVT of the left lower extremity, pulmonary embolism, and chronic venous insufficiency. The VA examiner opined that the Veteran's hematological disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The VA examiner also opined that it is evident that the Veteran's present chronic DVT condition less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service illness. He based this upon the fact that there is no evidence of onset of any manifestations during active military service. The VA examiner explained that due to his congenital defect, Factor V Leiden Mutation, the Veteran is predisposed to developing a DVT without medical management. The VA examiner also opined that the Veteran's DVT condition was not aggravated by his military service because there were no manifestations of chronic blood clots in service. The Veteran did not report any such manifestations during service. The VA examiner was unable to identify a superimposed disability due to his congenital defect without resorting to mere speculation. He was also unable to identify a nexus between his military service and his recurrent DVT condition without resorting to mere speculation. Although the examiner used the term "speculation," the Board finds that the context of the opinion is not speculative, but that the examiner was clearly unable to identify a superimposed disease or injury or any nexus to aspects of service and to attempt to do so would be speculative which he declined to do. IV. Analysis The Veteran and his representative contend in his October 2017 Informal Hearing Presentation (IHP) that the VA examiner is not shown to have any particular expertise, experience, training, or competence in commenting on hematologic disorders. Rather, they contend that the examiner is identified merely as a PA-C. They explain that the absence of competence renders his assessment no more probative than the Veteran's lay assertions that there is nexus between the claimed blood clot disorder and service. The Veteran is competent to report that he has been told he has DVT and other hematological disorders in his lower left extremity. Treatment records from multiple VA medical facilities confirm that the Veteran experienced frequent issues with blood clotting. There were impressions of Factor V Leiden deficiency. This is an inherited genetic disorder that increases the chances of developing abnormal blood clots. The Veteran's condition was inherited from one of his parents; not from both of his parents (homozygous type). This evidence is consistent with the Veteran's report in July 2003 that his mother experienced deep venous thrombosis. Here, the most probative evidence are the STRs and the December 2015 VA examination indicating it is less likely not that the Veteran's hematological disorders are related to service. The STRs were clinically normal for any such disorders, and contain no references to blood clots or other related symptoms. In addition, a treatment record from July 2003 indicates the Veteran was unremarkable prior to this time. Concerning the VA examiner, there is a presumption that the individual selected to conduct a VA examination is qualified, which can be overcome by showing a lack of qualification. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013). A challenge to the expertise of the VA examiner must set forth the reasons that the examiner is not qualified. Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims has held that a nurse practitioner can be competent to conduct a VA examination and provide a medical opinion. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Veteran has provided no basis to question the qualifications of the examiner selected by the Veterans Health Care system to conduct the December 2015 VA examination. Moreover, physician's assistants work under the direction and limitations specified by supervisory physicians. For this reason, the presumption of qualification is not disturbed. The Board acknowledges that it requested that the examination be performed by a hematologist, if possible. It was not required, and on review of the opinion, the Board finds that the PA understands of the history and detailed analysis indicated an understanding of the Veteran's medical history and the significance of the previous testing and medical care associated with the chronic blood clots and the hematological deficiency. For that reason, the Board finds that the opinion and rationale are sufficient to decide the claim and that there has been substantial compliance with the remand instructions. While the Veteran reports that his blood clots are related to service, these reports are inconsistent with the Veteran's other statements. These include his statements concerning his family history in the July 2003 treatment record and December 2013 VA Form 9, as well as the contemporaneous STRs indicating a continuity of symptomatology since his active service. These inconsistent statements further reduce the credibility of the Veteran's reports as to the onset of such symptoms. In addition, while the Veteran's pulmonary embolus and DVT were diagnosed within a year of discharge from active military service, they are not considered a "chronic" disease for the purpose of presumptive service connection pursuant to 38 C.F.R. § 3.309. The most credible and probative evidence suggests the Veteran's hematological disorder was not incurred in or aggravated by service, nor has the congenital defect been subjection to a superimposed disease or injury during active service because the defect had no manifestations during or until several months following service. Consequently, service connection is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a hematological disorder is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs