Citation Nr: 1800779 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 08-20 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for headaches, including as due to an undiagnosed illness. 2. Entitlement to service connection for blurry vision, including as due to an undiagnosed illness. 3. Entitlement to service connection for blood clots, including as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 and December 2008 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, the Veteran presented testimony before a Decision Review Officer at the RO. A copy of the transcript has been associated with the claims file. In November 2011, the Board remanded this matter for additional development and VA examinations. In May 2017, the Board remanded this matter to allow the RO to adjudicate the matter in consideration of new evidence submitted to the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) for the Veteran's headaches and blurry vision claims. VA will notify the Veteran if further action is required. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has blood clots, including as due to an undiagnosed illness, that are etiologically related to a disease, injury, or event which occurred in service. CONCLUSION OF LAW The criteria for service connection for blood clots, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2017). Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a December 2006 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a Veteran in the development of a claim. That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the blood clots claim decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117 (2012). The Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(d)(2) (2017). To grant service connection for a claimed disability, a Persian Gulf Veteran must exhibit objective indications of a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. The claimed disability must be characterized by symptomatology that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). The law currently defines a qualifying chronic disability as that which results from an undiagnosed illness, a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as CFS, fibromyalgia, and irritable bowel syndrome), or any diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 U.S.C. § 1117 (2012). Signs or symptoms that may be manifestations of an undiagnosed illness or a chronic multisymptom illness include: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs and symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the upper or lower respiratory system; (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 U.S.C. § 1117 (2012). For a disability to be presumed to have been incurred in service, the disability must have become manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (2017). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran contends that he is entitled to service connection for blood clots, including as due to an undiagnosed illness. He specifically alleges that his anthrax vaccination caused his blood clots or, alternatively, that his blood clots condition is generally related to his service in the Persian Gulf War. See DRO hearing, p. 2, 3. The Veteran's service treatment records are silent for complaints, diagnosis, or treatment of any blood clot condition. Additionally, the first notation for a blood clot condition was in April 2005 for lower extremity deep vein thrombosis. In September 2006, the Veteran was again diagnosed with deep vein thrombosis. See December 2006 medical treatment records, pp. 10, 58. Lay statements from the Veteran reflect that he had a blood clot in his leg in 2005, noted pain at that time, and was hospitalized for it. The Veteran stated that his last blood clot was in 2009. See November 2011 VA examination, p. 6. As noted above, since the April 2005 diagnosis, the Veteran received treatment at VA facilities for his deep vein thrombosis condition. Under Shedden element one, the Board concedes that the Veteran has a current disability because the November 2011 VA examiner attributed the Veteran's symptoms to a known medical diagnosis of residuals, deep vein thrombosis with the type being varicose veins and/or post-phlebitic syndrome (DVT). The examiner noted that the Veteran treated his DVT with anticoagulants. With respect to Shedden element two and three of an in-service event and nexus between that in-service event and the Veteran's current DVT, the November 2011 VA examiner explained that the Veteran had no risk factors associated with the development of DVT except for obesity. While the examiner reviewed the literature and noted that there have been reported serious problems associated with the anthrax vaccine, the examiner emphasized that there have been no definite statements relating anthrax vaccination to DVT. As such, the examiner concluded that the cause of the Veteran's DVT was undetermined and that she could not render an opinion without resorting to mere speculation. Thus, the examiner opined that the Veteran's DVT was less likely than (less than 50 percent probability) incurred in or caused by the claimed in-service anthrax vaccination. The Board finds the November 2011 VA examination persuasive because the examiner reviewed the claims file, interviewed the Veteran, and examined the Veteran personally. Thus, the November 2011 examination is afforded high probative value. The examiner further noted that DVT is both a diagnosed illness and that it has no overlapping symptoms. As such, the examiner opined that the Veteran's DVT was less likely than not associated with a medically-explained multi-symptom illness. Thus, presumptive service connection is not warranted. 38 C.F.R. § 3.317. The Board acknowledges as a lay person, the Veteran may not be able to make etiological opinions, but he is competent to report conditions capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). In this case, the Veteran is not competent to render an etiology opinion with regard to his DVT. Determining the etiology of the Veteran's DVT requires medical inquiry into biological processes and pathology. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions as to the etiology of his DVT is low. The Board has also considered the articles provided by the Veteran in August 2007 regarding the relationship between Anthrax vaccines and the development of DVT. The Board notes that these articles are general in nature, and have not been found to relate to the specific facts of the Veteran's case. In particular, the articles were considered by the November 2011 VA examiner, who determined that the cause of the Veteran's DVT was undetermined and that she could not provide an opinion without resorting to speculation. Thus, Shedden elements two and three are not met because the findings of the VA examiner outweigh the lay evidence of the Veteran's in-service anthrax vaccination being related to his current DVT. The preponderance of the probative evidence of record weighs against the claim of service connection for blood clots, including as due to an undiagnosed disease. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for DVT, including as due to an undiagnosed illness, is denied. REMAND The Board finds that further development for the claims is necessary to afford the Veteran every possible consideration. The Veteran was afforded VA examinations in June 2009, November 2011, and December 2011. An additional August 2014 VA addendum opinion is in the claims file. The VA examiners provided opinions as to whether the Veteran's claims for headaches and blurry vision are entitled to direct service connection or, alternatively, entitled to presumptive service connection under 38 U.S.C § 1117 and 38 C.F.R. § 3.317 by reason of the Veteran's service overseas in the Southwest Asia theater of operations during the Persian Gulf War. The Board finds that the direct service connection VA opinions are inadequate for the following reasons. Regarding headaches, the November 2011 VA examiner diagnosed the Veteran with tension headaches and conceded that the Veteran received headache treatment in service. However, the examiner opined that the Veteran's in-service headache was not related to his current tension headaches because the Veteran currently was not receiving medical treatment and because there was no record of treatment since active duty. The Board notes that the lack of evidence of treatment alone cannot serve as a rationale to deny service connection, especially in light of the Veteran's complaints of headaches since active duty. See March 2009 DRO hearing transcript. Furthermore, while the examiner did note that a June 2009 magnetic resonance imaging (MRI) was negative for brain disease, the examiner did not explain how the MRI relates to the Veteran's direct service connection claim for headaches. Regarding blurry vision, the December 2011 VA examiner did not diagnose the Veteran with blurry vision, but rather provided an alternative diagnosis of blepharitis and dry eye syndrome. However, in forming a negative VA opinion, the examiner did not provide a rationale as to why the Veteran's current blepharitis and dry eye syndrome are not related to his active duty service. In light of the foregoing, the Board finds the November 2011 and December 2011 VA medical opinions inadequate for purposes of rendering a decision on the Veteran's direct service connection claims for headaches and blurry vision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the AOJ should obtain an addendum opinion addressing whether the Veteran's headaches and alleged blurry vision are related to his service. The Board notes that the Veteran is currently service connected for tinnitus. Review of the March 2009 DRO hearing transcript indicates that the Veteran testified that "[t]he ringing in my ears, my headaches, and the blurry vision [are] almost corresponding with each other." Id. at p. 13. The Board finds that the Veteran's testimony has raised an alternative theory of entitlement to service connection for headaches and blurry vision as being related to his service-connected tinnitus. As such, the AOJ should obtain an addendum opinion addressing whether the Veteran's headaches and alleged blurry vision are related to his service-connected tinnitus. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any relevant outstanding VA and private treatment records. The AOJ should make reasonable attempts to obtain all relevant identified outstanding evidence and associate it with the Veteran's claims file. 2. After completing the development set forth above, forward the Veteran's claims file to an appropriate medical examiner for an addendum opinion. The Veteran should be scheduled for another VA examination only if determined necessary. Specifically, based on a review of the record and consideration of the Veteran's lay statements regarding symptomatology, the examiner should: a. Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current headaches are causally or etiologically related to the Veteran's period of active service. The examiner should address how the Veteran's June 2009 MRI relates to any opinion the examiner forms. b. Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's diagnoses of blepharitis and/or dry eye syndrome are/is causally or etiologically related to the Veteran's period of active service. c. Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current headaches are caused or aggravated by the Veteran's service-connected tinnitus. d. Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current blurry vision (diagnosed as blepharitis and dry eye syndrome) is caused or aggravated by the Veteran's service-connected tinnitus. If the examiner finds that the disability was aggravated by the service-connected tinnitus, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected tinnitus occurred. In providing the opinions, the examiner must address the Veteran's statements with respect to continuity of symptomatology. The examiner may not base his/her opinion solely on the lack of treatment in the aftermath of separation from service or currently. Any evaluations, studies, or tests deemed necessary by the examiner should be performed and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 3. After the above development has been completed, the AOJ must readjudicate the claims for entitlement to service connection for headaches and blurry vision (diagnosed as blepharitis and dry eye syndrome). If the benefit sought remains denied, the AOJ must provide the Veteran and his representative with a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs