Citation Nr: 18145310 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-11 077 DATE: October 30, 2018 ORDER Entitlement to service connection for deep vein thrombosis is denied. Entitlement to service connection for pulmonary vascular disease is denied Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has deep vein thrombosis due to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran has pulmonary vascular disease due to an in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran is unable to obtain or retain substantially gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for deep vein thrombosis are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for pulmonary vascular disease are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1969 to March 1973. This case is on appeal before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In June 2018, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. A review of the record indicates that medical evidence was received subsequent to the March 2015 statement of the case (SOC). However, this evidence was either submitted directly by the Veteran or is not pertinent to either of the issues on appeal. Thus, no further action is warranted. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for deep vein thrombosis and pulmonary vascular disease, in addition to entitlement to a TDIU. However, the preponderance of the evidence is against the finding that his deep vein thrombosis and pulmonary vascular disease are related to active service. Similarly, the Veteran has not provided sufficient evidence to support his TDIU claim. Accordingly, all three of these appeals are denied. I. Service Connection The Veteran seeks service connection for deep vein thrombosis and pulmonary vascular disease, both of which he claims arose from an automobile accident he experienced during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). a. Deep Vein Thrombosis The Veteran alleges that his deep vein thrombosis is related to active service, indicating that he began having problems with blood clots after he was in an automobile accident in 1970. The Veteran maintains that he was treated for blood clots in the immediate aftermath of the accident by a private physician. The Veteran asserts that these blood clots have remained in his body since the accident, and are the cause of his current condition. See June 2018 Board hearing. The Veteran’s service treatment records confirm that he was involved in an automobile accident in March 1970. However, there is no indication that he received treatment for blood clots during service. Although the Veteran’s February 1973 separation examination mentions cramping in the legs and chest, there is nothing to suggest that these issues are related to blood clots. Indeed, there is no evidence of deep vein thrombosis or any other condition related to blood clots until July 2002. That month, the Veteran was driving between Utah and West Virginia in a recreational vehicle. During the trip, the Veteran’s right leg began to swell. Following an ultrasound of his right lower extremity the next month, the Veteran was diagnosed with deep vein thrombosis. In December 2011, the Veteran again sought treatment for deep vein thrombosis after it was confirmed by an ultrasound of his left leg. In December 2014, the Veteran was afforded a VA examination for artery and vein conditions. The examiner conducted an in-person examination of the Veteran and reviewed the claims file, noting that the diagnosis of deep vein thrombosis first appeared in July 2002. The examiner opined that the Veteran’s deep vein thrombosis is less likely than not related to active service. This conclusion was based on medical literature detailing risk factors for venous thrombosis (the most common manifestations being pulmonary embolism and deep vein thrombosis of the lower extremities), which include family history and immobility. The examiner reiterated that the Veteran has no family history of venous thrombosis. Rather, the Veteran only developed deep vein thrombosis after a cross-country trip, during which his right leg remained immobile for long periods of time. Also, the examiner noted that medical literature does not suggest a link between venous thrombosis and cervical or lumbar spine strain, which are the Veteran’s other service-connected conditions. In August 2018, Dr. N.G., one of the Veteran’s treating physicians at the VA, submitted a letter in which he stated that Dr. M.C., another of the Veteran’s treating VA physicians, had recently concluded that the 1970 automobile accident may have contributed to the Veteran’s recurrent deep vein thrombosis. Dr. N.G. went on to say that he agreed with Dr. M.C.’s assessment due to the Veteran’s decreased mobility after the accident. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran’s deep vein thrombosis is related to active service. The Board recognizes that the record contains competing medical opinions as to the nature and etiology of the Veteran’s deep vein thrombosis. The Board must thus determine how much weight to afford the opposing opinions. Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). The Board may weigh one medical professional’s opinion over another, depending on factors such as the reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior evidence. Id. at 470-71 (“The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusions that the physician reaches.”). The Board must provide adequate reasons and bases if it adopts one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board may “favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases”). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight of the credibility of the evidence in the adjudication of the merits. Hernanadez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Board finds that the opinion of the December 2014 VA examiner is entitled to the greatest probative weight in this case. The VA examiner conducted an in-person examination of the Veteran and reviewed the claims file, finding no relationship between the Veteran’s deep vein thrombosis and any incident that occurred during service. By contrast, the opinion offered by Dr. N.G. is vague and conclusory. Although Dr. N.G. states that the Veteran’s immobility in the aftermath of the 1970 automobile accident may have contributed to the development of his deep vein thrombosis, he never attempts to explain why this condition was not diagnosed until more than three decades later. As such, the Board is much more convinced by the findings of the VA examiner, which link the Veteran’s deep vein thrombosis to the immobility of his right leg during his cross-country road trip. As such, the Board adopts the VA examiner’s conclusion that the Veteran’s deep vein thrombosis is not related to an in-service event, injury, or disease. Lastly, the Board acknowledges the statements of the Veteran, which indicate that he has suffered from deep vein thrombosis since his 1970 automobile accident. Although the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in December 2014 is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, that etiology opinion warrants more weight. In conclusion, based on the medical evidence as well as lay testimony, the Board finds that the weight of the evidence is against the finding that the Veteran’s deep vein thrombosis is related to active service. Although the Board acknowledges the Veteran’s statements alleging that this condition stems from his 1970 automobile accident, the majority of evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for deep vein thrombosis is denied. b. Pulmonary Vascular Disease The Veteran seeks service connection for pulmonary vascular disease, claiming that it arose from the 1970 automobile accident. The Veteran maintains that he began having problems with his lungs in the immediate aftermath of this event and sought treatment from private physicians. See June 2018 Board hearing. The Veteran’s service treatment records contain no indication that he was ever treated for a pulmonary disease during service. Although the Veteran’s February 1973 separation examination mentions cramping in the legs and chest, there is nothing to suggest that these problems are related to an underlying issue stemming from the Veteran’s 1970 automobile accident. There is no evidence of pulmonary vascular disease until July 2002, the month of the Veteran’s road trip between Utah and West Virginia. In addition to swelling in his right leg, the Veteran also developed a cough, fever, and right-sided pleuritic pain. An X-ray of the Veteran’s chest revealed a right pleural effusion, while a chest CT scan showed a pulmonary embolus. In December 2011, another chest X-ray revealed a pleural effusion. In December 2014, the Veteran was afforded a VA examination for artery and vein conditions. The examiner noted the Veteran’s diagnosis of pulmonary vascular disease, but stated that it had been asymptomatic since the resolution of his pulmonary thromboembolism in July 2002. The examiner opined that the Veteran’s pulmonary vascular disease is less likely than not related to active service. This conclusion was based on medical literature detailing risk factors for venous thrombosis (the most common manifestations being pulmonary embolism and deep vein thrombosis of the lower extremities), which include family history and immobility. The examiner reiterated that the Veteran has no family history of venous thrombosis, pointing out that he developed a pulmonary embolism after a cross-country trip. Also, the examiner noted that medical literature does not suggest a link between venous thrombosis and cervical or lumbar spine strain, which are the Veteran’s other service-connected conditions. In August 2018, Dr. N.G., one of the Veteran’s treating physicians at the VA, submitted a letter in which he stated that Dr. M.C., another of the Veteran’s treating physicians, had recently concluded that the 1970 automobile accident may have contributed to the Veteran’s episode of pulmonary embolism. Dr. N.G. went on to say that he agreed with Dr. M.C.’s assessment due to the Veteran’s decreased mobility after the accident. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran’s pulmonary vascular disease is related to active service. The Board recognizes that the record contains competing medical opinions as to the nature and etiology of the Veteran’s deep vein thrombosis. The Board must thus determine how much weight to afford the opposing opinions. Guerrieri, 4 Vet. App. at 471. The Board may weigh one medical professional's opinion over another, depending on factors such as the reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior evidence. Id. at 470-71 (“The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusions that the physician reaches.”). The Board must provide adequate reasons and bases if it adopts one medical opinion over another. See Owens, 7 Vet. App. at 433 (noting that the Board may “favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases”). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight of the credibility of the evidence in the adjudication of the merits. Hernanadez-Toyens, 11 Vet. App. at 382. The Board finds that the opinion of the December 2014 VA examiner is entitled to the greatest probative weight in this case. The VA examiner conducted an in-person examination of the Veteran and reviewed the claims file, finding no relationship between the Veteran’s pulmonary vascular disease and any incident that occurred during service. By contrast, the opinion offered by Dr. N.G. is vague and conclusory. Although Dr. N.G. states that the Veteran’s immobility in the aftermath of the 1970 automobile accident may have contributed to his episode of pulmonary embolism, he never attempts to explain why the Veteran did not show any symptoms of pulmonary vascular disease for more than three decades after the incident. As such, the Board is more convinced by the findings of the VA examiner, which suggest a much later onset of pulmonary vascular disease given the timing of the Veteran’s episode of pulmonary embolism. As such, the Board adopts the VA examiner’s conclusion that the Veteran’s pulmonary vascular disease is not linked to an in-service event, injury, or disease. Lastly, the Board acknowledges the statements of the Veteran, which indicate that he has suffered from pulmonary vascular disease since his 1970 automobile accident. Although the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not competent to provide an opinion regarding etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in December 2014 is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, that etiology opinion warrants more weight. In conclusion, based on the medical evidence as well as lay testimony, the Board finds that the weight of the evidence is against the finding that the Veteran’s pulmonary vascular disease is related to active service. Although the Board acknowledges the Veteran’s statements alleging that this condition stems from his 1970 automobile accident, the majority of evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for pulmonary vascular disease is denied. II. TDIU The Veteran seeks a TDIU, alleging that he is unable to obtain or retain substantially gainful employment due to his service-connected conditions. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran’s education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service-connected for degenerative disc disease of the lumbar spine, rated at 20 percent disabling from March 25, 2014; degenerative arthritis of the cervical spine status post whiplash injury, rated at 20 percent disabling from March 25, 2014; left upper extremity radiculopathy status post whiplash injury, rated at 20 percent disabling from March 25, 2014; right upper extremity radiculopathy status post whiplash injury, rated at 20 percent disabling from March 25, 2014; left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine, rated at 10 percent disabling from March 25, 2014; and right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine, rated at 10 percent disabling from March 25, 2014. On March 25, 2014, the Veteran’s combined disability rating was 70 percent. Although none of the Veteran’s service-connected disabilities is rated as more than 20 percent disabling, he still satisfies the schedular requirements for TDIU since his disabilities stemming from a single incident total more than 40 percent. 38 C.F.R. § 4.16(a). Thus, the Veteran met the schedular requirements for TDIU on March 25, 2014. See December 2014 rating decision. Although the Veteran meets the schedular requirements for a TDIU, the Board notes that there is little evidence in the record with which to render a decision concerning this issue. Indeed, the Veteran submitted an incomplete VA Form 21-8940 in his August 2014, in which he indicated that he was a high school graduate but did not provide any of the information requested in the form about his employment history other than that he worked in the “civil service.” Similarly, in a December 2014 VA Form 21-4192, the Veteran listed the type of work he performed as “supervisor” and stated his reason for termination as “optional retirement.” These answers provide little relevant information concerning the Veteran’s work history, skills, and experience. In fact, the information provided is incomplete and provide little value in helping the Board to assess how the Veteran’s service-connected conditions might impact his ability to obtain or retain substantially gainful employment. The Board notes that the Veteran bears the burden of proof to substantiate every element of his claim. Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997). Although the VA has a duty to assist the Veteran in developing evidence, the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, if a Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Here, given the lack of affirmative evidence relating to the Veteran’s inability to obtain or retain substantially gainful employment, the Board is forced to conclude that the weight of the evidence of record is against such a determination. Accordingly, the Veteran’s claim for a TDIU is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel