Citation Nr: 1800738 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 99-06 716A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection to a vascular disorder of the right upper extremity, to include deep vein thrombosis (DVT) and to include as secondary to service-connected back and sinus disorders. 2. Entitlement to service connection for a heart disorder, to include atrial fibrillation and atrial flutter and to include as secondary to service-connected back and sinus disorders. 3. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected back disorder. 4. Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected back disorder. 5. Entitlement to service connection for a lower limb movement disorder, to include as secondary to service-connected back and sinus disorders and service-connected obstructive sleep apnea (OSA). 6. Entitlement to an evaluation in excess of 40 percent for back strain with myalgia, status post laminectomy from August 8, 2007, to the present. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the United States Air Force from October 1971 to October 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions from January 1999, December 2009, and June 2011 issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Louis, Missouri, and in Phoenix, Arizona. Jurisdiction of the Veteran's claim for an increased evaluation for his back disability was subsequently transferred to the RO in Phoenix, Arizona. The Board previously considered and remanded the issue of entitlement to an increased evaluation for a low back disability in December 2006, June 2008, and June 2014 for further evidentiary development. The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in December 2005 who is no longer a VLJ at the Board. A transcript of the hearing transcript has been associated with the Veteran's claims file and, in correspondence from December 2013 from his former representative, the Veteran declined the opportunity to appear at an additional Board hearing. The issues of service connection for a cervical spine disorder, a left knee disorder, and a leg movement disorder and the issue of an increased evaluation for a back strain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of any disability relating to his claim for blood clots in his right shoulder or upper extremity. 2. The Veteran's heart disorder, to include atrial fibrillation or atrial flutter, is not etiologically related to service. 3. The Veteran's heart disorder, to include atrial fibrillation or atrial flutter, is not proximately due to any service-connected disability or due to treatment for any service-connected disability. 4. The Veteran's heart disorder, to include atrial fibrillation or atrial flutter, has not been aggravated any service-connected disability or by treatment for any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a vascular disorder of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection for a heart disorder, to include atrial fibrillation or atrial flutter, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board acknowledges the Veteran's service to his country and is sympathetic to his medical conditions; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Service Connection - Legal Standard Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a secondary basis when there is competent evidence that a current disability is proximately due or has been aggravated by an already service-connected disability. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017). An appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. II. Vascular Disorder in the Right Upper Extremity At the outset, the Board finds it useful to emphasize that the cornerstone of any service connection claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The Veteran seeks service compensation for blood clots that he developed in his arm. At a hearing with a Decision Review Officer (DRO) in March 2010, the Veteran suggested that he had developed these clots due to a sedentary lifestyle. In a February 2005 lay statement, the Veteran indicated that he led such a sedentary lifestyle due to the pain in his lower back and upper shoulders. A review of the Veteran's claims file corroborates the Veteran's statements regarding treatment for DVT in August 2003. At that time, the Veteran was reportedly driving for long stretches of time and was admitted to treat symptoms consistent with DVT in the right lower extremity. Several days after his admission, he was assessed with "hospital acquired" DVT of the right upper extremity and superficial phlebitis. To evaluate the nature and etiology of the Veteran's claimed vascular disorder, the Veteran was afforded a VA medical examination with a cardiologist in April 2015. The physician who completed this evaluation took a detailed medical history and reviewed the Veteran's claims file. Of particular relevance here, the Veteran reportedly informed the VA cardiologist that his clots had resolved after a six-month course of pharmaceutical treatment and the Veteran stated that "he has not had any blood clot in his leg or arm since then." Providing a summary of the Veteran's medical records, this VA cardiologist also explicitly stated that after 2003, no further DVT episode was diagnosed in the file. He explained that the Veteran had DVT of the right lower extremity in 2003 that led to right upper extremity DVT but that both were resolved at the time of the April 2015 VA examination and that a physical exam showed no recurrence or residual of the 2003 episode. The claims file is devoid of any other competent evidence to suggest that the Veteran currently has DVT or any other vascular disorder in his upper right extremity relating to his claim for service connection for blood clots. As the claims file does not contain competent evidence of such a current disability, the Board must deny the Veteran's claim for service connection and the Board finds that there is no reasonable doubt to resolve. However, even assuming that the Veteran did have such a current disability, the Board finds that the record lacks any competent evidence to suggest that the Veteran's history of DVT arose in or is otherwise etiologically related to service, or which indicates that the Veteran's service-connected disabilities, or the treatment for these conditions, are proximately related to or aggravated the Veteran's DVT. On the contrary, the April 2015 examiner who evaluated the Veteran's vascular system noted that the Veteran's original DVT in 2003 was not likely to be related to, due to, or aggravated beyond its natural course by sinusitis or low back strain. He explained that neither sinusitis nor its treatment cause or aggravate DVT and that the Veteran's pain medication, low back strain, or degenerative joint disease do not directly cause and are not known to alter the pathophysiology and course of DVT. Ultimately, the Board finds that the evidence of record does not show that the Veteran has a current vascular disorder in the right upper extremity relating to his claim for blood clots that is etiologically related to service or which is proximately due to or aggravated by any service-connected disorder. III. Heart Disorder In contrast to the Veteran's claim for service connection of a vascular disorder of the right upper extremity, there is no dispute that the record contains competent evidence of a current heart disorder. Private treatment records from as early as July 2002 include evidence of the Veteran's ablation treatment for an atrial flutter and a VA treatment note from January 2004 included reports of an EKG study that showed a flutter that was little changed from a prior study in 2001. The Veteran was also afforded a cardiac VA examination in April 2015 with the same cardiologist who evaluated the Veteran's DVT. This physician confirmed that the Veteran has a current diagnosis of atrial fibrillation/flutter status post ablation and permanent pacemaker placement. Although the record contains a competent diagnosis of a current disability of atrial fibrillation/flutter, the Board finds that the preponderance of the credible, competent, and probative evidence of record weighs against a finding that this condition is etiologically related to service, is proximately due to any service-connected disability or treatment for such a disability, or has been aggravated by any service-connected disability or treatment for such a disability. In the course of a prior adjudication of this claim, the Veteran was afforded a June 2005 medical examination. Although the Veteran was found to have a current diagnosis of atrial fibrillation/flutter at that time, the examiner who completed the evaluation indicated that he was not aware of any association between this condition and sleep apnea that would indicate sleep apnea caused or aggravated atrial fibrillation/flutter. As such, the examiner opined that it was not at least as likely as not that the Veteran's arrhythmia was caused or aggravated by sleep apnea. The opinion was offered by a medical professional after a personal examination of the Veteran and a review of his medical records, as such the Board finds that it is competent and probative in addressing the relationship between the Veteran's service-connected OSA and his atrial fibrillation or flutter. In a lay statement from April 2007, the Veteran contended that his atrial fibrillation was due to the constant stress he was under and his need to take heavy doses of Ibuprofen. In a statement from April 2009, the Veteran reported that his heart doctor stated to him that his heart condition was caused or substantially aggravated by the constant pain he had and that his VA physician indicated that the pain from his service-connected back condition was clearly a cause or aggravating factor for his heart condition. At the March 2010 DRO hearing, the Veteran also testified that doctors had informed him that the pain medication he had been prescribed after his August 2007 back surgery was causing his atrial fibrillation "to go crazy" and that his treating VA physician indicated that the Veteran's pain and stress were the reason why his atrial fibrillation was so bad. Although the Veteran is competent to report what his various doctors have told him, the record does not indicate that he has the knowledge, experience, or training to provide an opinion on the medically complex determination of the factors that cause or worsen his atrial fibrillation or flutter. Likewise, VA has obtained the Veteran's VA treatment records and a review of these treatment notes and clinical reports fails to uncover any statement from treating clinicians that the Veteran's pain or stress from service-connected disabilities or the effects of medication for these disabilities has caused or worsened his atrial fibrillation or flutter. As such, the Board does not find the Veteran's competent statements regarding the reports by his treating clinicians of such a connection to be highly probative in this matter. As noted above, the Veteran also attended a cardiac VA examination in April 2015. At that time, the examiner took a detailed medical history, reviewed the Veteran's claims file, and performed a physical examination of the Veteran. This examiner also provided a detailed explanation of the causes of atrial fibrillation, noting that this condition arises with rapid atrial depolarization and, citing a medical treatise, the clinician reported that the most common predisposing factor for atrial fibrillation and atrial flutter is hypertension. He ultimately opined that the Veteran's heart condition was not likely to be caused or aggravated beyond its natural course by sinusitis or low back strain, including the prescribed medication for these conditions. In explaining this opinion, the VA cardiologist indicated that sinusitis and lumbar strain or degenerative joint disease are not known to cause atrial fibrillation or flutter. He also explained that the medications for these conditions are similarly not known to cause or aggravate the natural course of the disease. Rather, the examiner indicated that the Veteran's hypertension, obesity, and thyroid disease may have predisposed the Veteran to atrial fibrillation or atrial flutter and indicated that, in multiple evaluations by several treating cardiologists, management and treatment of lumbar disease or sinusitis have never been mentioned as contributing factors to his heart condition. Like the opinion of the June 2005 VA medical examiner, the Board ultimately finds this opinion to be highly probative in this matter. It was given after a thorough review of the record and a physical evaluation of the Veteran's cardiac condition. It also has a detailed and persuasive rationale that explains the nature of the Veteran's heart condition and cites medical literature which explains the most common factors for the development of the Veteran's heart condition. As a cardiologist, this physician also possesses the detailed knowledge and extensive training necessary to opine on the relationship between the Veteran's heart condition and his service-connected disabilities and the treatment he receives for these conditions. For these reasons, the Board finds that the preponderance of the probative and competent evidence of record weighs against a finding that the Veteran's heart condition is etiologically related to service or has been caused by or aggravated by any service-connected disability or the treatment the Veteran has been prescribed for these service-connected conditions. As such, the doctrine of the benefit of the doubt is not for application and his claim for service connection for a heart condition must be denied. IV. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2017). Here, the Veteran was provided with the relevant notice and information in July 2011, prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion under certain circumstances when necessary to make a decision on the claim. VA treatment records and relevant private treatment records identified by the Veteran have been associated with the Veteran's claims file. The Veteran was also afforded VA medical examinations relating to his claims for service connection for vascular and heart disorders in April 2015. The examiner who completed these evaluations is a cardiologist who took a medical history, reviewed the Veteran's treatment records, and provided detailed opinions and rationales for his statements. For these reasons, the Board is satisfied that VA has satisfied its duties to notify and assist the Veteran in his claims for service connection for a vascular disorder of the right upper extremity and for a heart disorder. ORDER Service connection for a heart disorder, to include atrial fibrillation and atrial flutter, is denied. Service connection for a vascular disorder of the right upper extremity, to include DVT, is denied. REMAND Although the Board sincerely regrets the delay, the issues of service connection for a cervical spine disorder, a left knee disorder, and a leg movement disorder and the issue of an increased evaluation for a back strain must be remanded for further evidentiary development. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. As part of its duties to assist, VA must make reasonable efforts to obtain relevant private records that a claimant adequately identifies. 38 U.S.C. § 5103A(b)(1). When VA is informed of any potentially relevant private treatment records, VA must seek to obtain the records prior to deciding the case or explain its failure to do so. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A review of the Veteran's VA treatment records include an April 2011 treatment note indicating the Veteran had been evaluated by a private neurosurgeon who had recommended neck surgery. A follow up note from April 2012 stated that the Veteran continued to receive private treatment from a neurologist. Likewise, VA treatment notes from as early as July 2015 and continuing through January 2016 indicate that the Veteran was receiving private clinical treatment for his left knee and low back disability. Regrettably, the record does not indicate that VA has made any substantial attempts to secure and review these records. These potentially relevant treatment notes could provide greater insight into the nature and etiology of the Veteran's left knee and cervical spine disorder and give further insight into the current severity of his low back disability. As a central consideration of the Veteran's claim for an increased evaluation for his back is the precise nature of the Veteran's prescribed treatment, the Board finds it must make reasonable efforts to obtain these private records. These records may also provide clarity into the nature of the Veteran's back disability, given the conflicting opinions regarding the nature of the Veteran's back disorder and the Veteran's specific contentions that his back disability is appropriately characterized as diffuse idiopathic skeletal hyperostosis (DISH), which he contends also encompasses his claim for service connection for a cervical spine disability. Therefore, the Board finds that VA must satisfy its duty to assist the Veteran by making reasonable efforts to obtain and review these medical records. In the course of the Veteran's appeal, the Veteran was also afforded an April 2015 VA medical examination to obtain an opinion as to the etiology of a left knee disability. The clinician who conducted this evaluation ultimately gave a negative nexus opinion and indicated that the Veteran's knee disability was not caused or aggravated by the Veteran's service-connected back disability. However, for a medical opinion to be adequate, it must be based upon consideration of the veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be fully informed. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). If an examination report is inadequate or fails to contain sufficient detail, the Board is required to return the report. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The Board also recognizes that an opinion that is based upon an inaccurate factual premise has no probative value and it stands to reason that any such opinion is inherently inadequate for VA purposes. See Reonal v. Brown, 5 Vet. App. 458 (1993). Unfortunately, it does not appear that the examiner who evaluated the Veteran's knee in April 2015 had an accurate understanding of the Veteran's medical history and the Board must return the report for corrective action. In this clinician's summary of the Veteran's medical history, the examiner indicated that the Veteran's diagnosis of bilateral degenerative arthritis of the knee dates to the 1980s and that the Veteran had a debridement of a medial meniscus in 1984. However, a review of the Veteran's treatment records indicate that the Veteran in fact sustained an injury in October 1994 and a private treatment note from August 1996 indicates that the Veteran actually underwent a lateral meniscectomy a year and a half prior. As this evidence directly contradicts the medical history relied upon by the April 2015 VA examiner, the Board finds that the opinion provided by this clinician rests on an inaccurate understanding of the facts and the Board must return the report in order to obtain an adequate opinion. Finally, the Board notes that there is significant confusion in the record with respect to the specific diagnosis of any lower extremity movement disorder. A private treatment record from November 2002 includes a diagnosis of "periodic limb movement disorder" after a recent sleep study showed frequent leg movements resulting in eight arousals per hour. A June 2005 VA medical examination also includes an impression of "nocturnal leg movements and muscle spasm," whereas a July 2005 VA examination report refers to this condition as "quivering" in the Veteran's calves. More recently, the Veteran attended a VA medical examination in April 2015. At that time, the Veteran's condition was referred to as a "limb disorder movenent [sic] disorder." The clinician who conducted this evaluation indicated that "one of the factors" for the Veteran's excessive movement could be low back pain and radiculopathy because pain radiating form the Veteran's back to the legs could make his legs uncomfortable, leading to an urge to move. Ultimately, the Board finds that the record does not contain sufficient detail with respect to the specific nature of any lower extremity movement disorder and fails to sufficiently inform the Board as to whether the Veteran has a distinct and separate disability, whether it is a manifestation of the Veteran's low back disability that should be separately rated, or whether it is already considered in the Veteran's current evaluation for lower extremity radiculopathy. As such, the Board should be afforded an additional VA examination to determine the exact nature of any lower extremity movement disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relating to the Veteran's lumbar or cervical spine and associate them with the claims file. 2. Thereafter, contact the Veteran and ask for authorization for release of any private treatment records for knee, back, or neck symptoms, to include the private treatment referred to in VA treatment notes from April 2011, April 2012, July 2015, and January 2016. If authorization is received, make reasonable attempts to obtain and associate these records with the Veteran's claims file. 3. Contemporaneously with items one and two, afford the Veteran a VA medical examination with an appropriate medical professional who can provide an opinion on lower extremity movement disorders. The examiner is asked to take a detailed medical history and conduct any tests or studies deemed necessary. A complete copy of the claims file should be made available to the examiner. The examiner is asked to provide an opinion and complete rationale regarding the following items: a) Please provide any diagnoses associated with the Veteran's complaints of nocturnal leg movements. The examiner is asked to specifically comment on a 2002 private treatment record referring to "periodic limb movement disorder." b) Please explain whether any such disorder is a distinct disability or is instead a manifestation of the Veteran's service-connected radiculopathy or low back disability. c) If the Veteran has a distinct diagnosis, is it at least as likely as not (50 percent probability or greater) that the condition is due to any service-connected disability, to include sinusitis, obstructive sleep apnea, lower extremity radiculopathy, or a low back disability? d) If the Veteran has a distinct diagnosis, is it at least as likely as not (50 percent probability or greater) that the condition has been aggravated by (worsened in severity beyond the natural progression of the disease) any service-connected disability or treatment for any service-connected disability, to include sinusitis, obstructive sleep apnea, radiculopathy, or a low back disability? 4. After completing items one and two, obtain a medical opinion from a qualified medical professional to determine the nature and etiology of any current left knee disability. The medical professional is to be given a complete copy of the claims file and should note review of the same. The medical professional is asked to provide an opinion and complete rationale regarding the following items: a) Is it at least as likely as not (50 percent probability or greater) that any current left knee disorder is related to any service-connected disability or the treatment for any service-connected disability, to include the Veteran's service-connected back strain? b) Is it at least as likely as not (50 percent probability or greater) that any current left knee disorder has been aggravated by (worsened in severity beyond the natural progression of the disease) any service connected disability or the treatment for any service connected disability, to include the Veteran's service-connected back strain? 5. After ensuring compliance with the items above, conduct any other development deemed necessary. 6. Finally, readjudicate the Veteran's claims. If any claim is not granted to the Veteran's satisfaction, provide him a Supplemental Statement of the Case and allow him an appropriate amount of time to respond before returning the claim to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs