Citation Nr: 19164455 Decision Date: 08/20/19 Archive Date: 08/20/19 DOCKET NO. 16-02 356 DATE: August 20, 2019 ORDER Entitlement to compensable evaluation for left shoulder tendonitis prior to March 28, 2014, and a disability rating in excess of 20 percent on or after March 28, 2014 is dismissed. New and material evidence having been received, the previously denied claim of entitlement to service connection for superficial thrombophlebitis of the left inner thigh is reopened. Entitlement to service connection for an osseous defect of the left thigh with left medial distal knee pain (claimed as superficial thrombophlebitis of the left inner thigh) is granted. FINDINGS OF FACT 1. In an April 2019 written statement, prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal of the issue of entitlement to compensable evaluation for left shoulder tendonitis prior to March 28, 2014, and a disability rating in excess of 20 percent on or after March 28, 2014 be withdrawn. 2. In an April 2005 rating decision, the RO denied the Veteran's service connection claim for superficial thrombophlebitis of the left inner thigh. The Veteran was notified of that decision and his appellate rights, but he did not appeal or submit new and material evidence within the one year period thereafter. 3. The evidence received since the April 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for superficial thrombophlebitis of the left inner thigh. 4. An osseous defect of the left thigh with left medial distal knee pain (claimed as superficial thrombophlebitis of the left inner thigh) is related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to compensable evaluation for left shoulder tendonitis prior to March 28, 2014, and a disability rating in excess of 20 percent on or after March 28, 2014 have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The April 2005 rating decision that denied the Veteran's service connection claim for superficial thrombophlebitis of the left inner thigh is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The evidence received since the April 2005 rating decision is new and material, and the claim of entitlement to service connection for superficial thrombophlebitis of the left inner thigh is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The requirements to establish entitlement to service connection for an osseous defect of the left thigh with left medial distal knee pain (claimed as superficial thrombophlebitis of the left inner thigh) have been met. 38 U.S.C. §§ 1101, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1987 to February 1995, April 1999 to July 1999, and January 2003 to June 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. After additional evidence was received within one year of the August 2013 rating decision, the RO reconsidered and denied the claims in accordance with 38 C.F.R. § 3.156(b). The Veteran then filed a timely notice of disagreement in March 2014. In April 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims file. During the pendency of the appeal, an August 2015 Decision Review Officer (DRO) decision recharacterized the Veteran’s left shoulder disability as left shoulder tendonitis and granted a compensable evaluation effective from March 28, 2014. A June 2016 rating decision later increased the disability rating to 20 percent effective March 28, 2014. As the maximum benefit was not granted, the issue remained in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The June 2016 Supplemental Statement of the Case then characterized the issue as whether the Veteran was entitled to a disability rating greater than 20 percent, and/or whether he was entitled to an earlier effective date for the 20 percent rating. However, the question of whether an earlier effective date is warranted for the 20 percent rating is already contemplated by the Veteran's increased rating claim for the period before the 20 percent rating became effective, as this award created a staged rating. See generally Fenderson v. West, 12 Vet. App. 119 (1999) (if the level of severity of a service-connected disability changes during an appeal period, staged ratings are appropriate). Consequently, the issue has been characterized as noted above. 1. Entitlement to compensable evaluation for left shoulder tendonitis prior to March 28, 2014, and a disability rating in excess of 20 percent on or after March 28, 2014. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his authorized representative. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. In an April 26, 2019 written statement, the Veteran reported that he wished to withdraw his increased rating claim for his left shoulder disability. During the April 26, 2019 Board hearing, the Veteran reaffirmed that he did not want to pursue an appeal for this claim. Given that there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal, and it is dismissed. 2. Whether new and material evidence has been received to reopen a previously denied claim for superficial thrombophlebitis of the left inner thigh. The Veteran’s service connection claim for superficial thrombophlebitis of the left inner thigh was initially denied in an April 2005 rating decision. The RO determined that the Veteran's injury to his left medial thigh during service had resolved without current residuals. The Veteran was notified of the decision and his appellate rights in an April 2005 letter. However, the Veteran did not file a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513(1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). At the time of the April 2005 rating decision, the evidence of record included the Veteran’s statements, his service treatment records (STRs), VA examinations dated in May 1995 and September 2004, and VA treatment records dated from October 2001 to September 2002. The Veteran’s service treatment records are silent for any relevant complaints, diagnoses, or treatment until his last period of active service from January 2003 to June 2004. See January 1986 Enlistment Examination and Report of Medical Histor; January 1995 Separation Examination and Report of Medical History; March 1999 Service Examination and Report of Medical History. In a March 2003 Report of Medical History, the Veteran reported having a cyst on a vein on his left thigh. Later on September 3, 2003, an STR reported that the Veteran complained of pain and a knot in the left upper medial leg from an injury that occurred two weeks before the visit. The Veteran had fallen though the boards on a low boy trailer and bruised his leg. The record noted that the Veteran did not experience pain with walking, but jogging increased his pain. The assessment was severe contusion with lump over the blood vessel on the left thigh. An emergency room evaluation was recommended. Later that day, an emergency care record noted that the Veteran complained of a lump on his left inner thigh that developed after his fall. He was assessed to have superficial thrombophlebitis that was traumatic. The record indicated that a venous duplex of the left leg was ordered. An associated x-ray of the left femur dated on September 3, 2003 noted in the impression that the left femur series was negative. A venous duplex ultrasound of the left lower leg was also conducted on this date to rule out deep vein thrombosis. The impression stated that there was no evidence for deep vein thrombosis. The findings at the region of interest in the medial thigh were most consistent with superficial thrombophlebitis. A June 2004 Report of Medical Assessment subsequently noted that the Veteran had been seen for back pain and muscle aches. He had also developed shingles while activated, and he had superficial thrombophlebitis that was resolving. On March 8, 2004, a service examination was conducted for retention purposes. The lower extremities and vascular system were noted to be normal upon clinical evaluation. Another entry on March 8, 2004 that appeared to be associated with a Report of Medical History noted that the Veteran complained of his left leg, and he still had a cyst on his left thigh. On March 10, 2004, an STR noted that the Veteran was following up on an inner left thigh cyst that had been present since December 2003. There had been no improvement, and the cyst was painful when touched. However, it appears that the remainder of the entry from this visit is not included in the record. A June 2004 Post-Deployment Health Assessment for a period of deployment from January 2003 to June 2004 noted the Veteran’s report that he had developed symptoms of swollen, stiff, or painful joints during his deployment. The Veteran also reported that he was currently experiencing muscle aches. After service, the Veteran was provided a VA general medical examination related to his claim in September 2004. The examiner noted that the Veteran’s thrombophlebitis of the left lower extremity occurred when he fell into a vat, injuring his left inner thigh. The Veteran had a large hematoma, but his only current residual was pain and tenderness to direct pressure over the mid-medial left thigh. There were no masses, venous varicosities, or other superficial or deep areas proximal or distal to the mid-left thigh that had tenderness. In addition, no deformity was present. The record also noted that the Veteran had herpes zoster in the right buttock that occurred in 2004, and he also experienced an enlarged left inguinal node at approximately the same time. This node had since disappeared. The Veteran had some tenderness in the left inguinal region to deep palpation, but his pulses were normal and there was no palpable mass or hernia. In the listed diagnoses, the examiner noted superficial thrombophlebitis of the left inner thigh that had resolved with no disability. The Board notes that additional military personnel records were associated with the record after the April 2005 rating decision. However, these records include administrative information that is unrelated to the Veteran's service connection claim. Consequently, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156(c) is not warranted. The evidence that has been received since the April 2005 rating decision also includes a March 2016 private treatment record. This record reported that the Veteran experienced functional restrictions in relation to his left thigh pain. According to the record, the Veteran was unable to tolerate sitting on items that caused compression on the posteromedial left thigh, he was unable to fully squat, and he had occasional resting discomfort due to left medial thigh pain or itching. This evidence is new and material as it is not cumulative or redundant of the previous evidence of record; it relates to the previously unestablished question of a current disability; and the record raises a reasonable possibility of substantiating the claims. Consequently, the Veteran's service connection claim for superficial thrombophlebitis of the left inner thigh is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In light of the Board's reopening of the Veteran's service connection claim for superficial thrombophlebitis of the left inner thigh, the Board has considered whether it is appropriate to address the merits of the claim without remand to the RO for action. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question not addressed by the RO, "it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby"). In light of the favorable outcome below, it is clear that the Veteran is not prejudiced by the Board's adjudication of the issue on a de novo basis. 3. Entitlement to service connection for a left inner thigh disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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) 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease 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). The record shows that after service, the Veteran has been consistent in reporting that he has experienced left thigh pain since the 2003 in-service injury. See July 2013 Statement; VA treatment records dated in April 2015 and November 2015. In 2015, the Veteran’s medical providers investigated the etiology of his complaints. An April 2015 VA treatment record noted that the Veteran reacted strongly to palpation of the left inner mid-thigh. However, no masses were found. In May 2015, a VA treatment record noted that the Veteran's reported medial left thigh tenderness did not seem radicular, but it could be femoral neuralgia. A VA examination related to the Veteran's claim was conducted in September 2015. The examiner completed an artery and vein conditions Disability Benefits Questionnaire (DBQ). The Veteran informed the examiner that his symptoms began after the injury that was noted in September 2003. Although the examiner stated that the condition had improved, this observation did not appear to be based on the Veteran’s reported medical history. The diagnosis was superficial thrombophlebitis of the left inner thigh that had resolved. The second diagnosis was arteriosclerotic cardiovascular disease. However, the examiner did not associate the Veteran's reported left thigh symptoms to this cardiovascular disorder. The examiner did not provide any medical opinion. In a subsequent January 2016 VA treatment record, a medical doctor noted an assessment of chronic nonspecific left medial thigh pain that was due to trauma to the leg in 2003 from a heavy object falling on the Veteran's thigh. However, no pathology could be palpated or visualized. There was concern for a possible muscular tear versus strained surrounding tissue versus persistent calcified hematoma and myofascial adhesions from 2003. In contrast the hypothesis in the May 2015 record that there might be neuralgia, this record stated that there was no concern for joint or nerve pathology. A plan was made to obtain an MRI and CT scan. In February 2016, the Veteran had a CT scan and MRI of his left femur. The MRI noted that in the impression that examination was normal, and the source of the persistent left-sided pain was not found. The CT scan stated that the CT surface marker had been placed at the area of maximal tenderness at the medial aspect of the distal thigh, and the axial level almost exactly correlated with the upper most margin of the patella. An underlying soft tissue or osseous lesion suggestive of infection or malignant neoplasm was not found. A small ovoid 3 by 5 millimeter bone island was incidentally noted at the medial metaphysis of the distal left femur posteriorly. The March 2016 private treatment discussed above was from a physical therapy visit. The provisional diagnosis for the physical therapy consultation was pain in the left thigh. A physical therapist stated that the Veteran sought treatment for his persistent medio distal thigh pain at the posterior aspect of the medial femoral condyle. The physical therapist documented the Veteran's report that his pain began in 2003 when he fell through a rotten trailer deck and suffered a contusion with some level of scraping to his medial left thigh. The Veteran's symptoms were originally treated with rest and activity modification. However, after the ecchymosis resolved, the Veteran continued to have an area of focal pain over the distal posterior aspect of the medial condyle. The physical therapist observed that the Veteran had been seen for medical imaging that was positive for some type of osseous damage at the site of his current symptoms. The physical therapist reported that although palpation over the medial hamstring was not painful, palpation of the distal posterior medial femoral condyle reproduced the Veteran's symptoms. The area was the size of a dime, and it was acutely painful down on the bone. The physical therapist stated that the initial impression was medial distal knee pain that was consistent with some osseous defect. Based on the Veteran's description of his in-service injury, the physical therapist concluded that the Veteran's current symptoms were most likely related to osseous issues. As previously noted, the physical therapist also reported that the Veteran’s pain resulted in the functional impairment. The Board finds that this evidence is sufficient to establish the presence of a current disability for VA compensation purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (2018). In addition, the physical therapist’s assessment indicates he found that the Veteran’s left medial distal knee pain was consistent with the nature of the in-service injury. The examining doctor in January 2016 similarly attributed the Veteran’s current symptoms to his 2003 injury during service. Both of these medical professionals considered the Veteran’s reports of continuous symptoms since service before reaching their conclusions. After considering the opinions as a whole and in the context of the record, the Board finds that the conclusions provide probative value as they addressed the medical issues in this case and were based on an analysis of the evidence and current medical understanding. See Monzingo v Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion); see also Acevedo v. Shinseki, 25 Vet. App. 289, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). The Veteran is competent to attest to observable symptomatology and events that he experienced. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran’s reports of continuous symptoms since the 2003 injury have been consistent since his discharge from service, the Board finds his reports to be credible. Although the Board acknowledges that the March 2003 Report of Medical History documented a left thigh cyst before the injury noted in September 2003, this complaint appears to be distinct from the symptoms that resulted from the subsequent left thigh injury. There is also no suggestion from the STRs that the left thigh cyst existed prior to service. In addition, the Veteran’s current symptoms have been associated with the 2003 injury rather than a left thigh cyst. After considering the determinations of the above medical professionals alongside the Veteran’s competent and credible reports of continuous symptoms since service, the Board finds that the weight of the evidence supports the conclusion that the Veteran's current osseous defect of the left thigh manifested by left medial distal knee pain is related to his active duty service. Accordingly, entitlement to service connection for an osseous defect of the left thigh with left medial distal knee pain (claimed as superficial thrombophlebitis of the left inner thigh) is granted. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.