Citation Nr: 20004384 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 14-03 049 DATE: January 17, 2020 ORDER Entitlement to service connection for deep venous thrombosis (also known as left leg disability) is granted. Entitlement to service connection for left ankle pain secondary to left leg disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s left leg disability is etiologically related to service. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s left ankle pain is secondary to the service-connected left leg disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left leg disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for left ankle pain secondary to left leg disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1987. The claim was remanded by the Board in September 2016 for additional development. The Board finds that appropriate development has been completed to adjudicate these matters. The issue of service connection for gastroesophageal reflux disease has been granted service connection and there has been no indication that the Veteran appealed for a higher disability rating. Therefore, the issue for service connection for gastroesophageal reflux disease is not before the Board. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111 (2014). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 ; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. Id. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and evidence of record in a case before the Board with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Board must assess the credibility and weight of all the 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. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 Veteran 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). 1. Entitlement to service connection for deep venous thrombosis (also known as left leg disability) 2. Entitlement to service connection for left ankle pain secondary to left leg disability The Veteran contends that injuries were sustained while in service that caused the current deep venous thrombosis at issue. Specifically, that shin splints were suffered in the left leg that ultimately caused the osteoma. Due to the surgery to remove the osteoma, the Veteran contends that deep venous thrombosis developed near the site of the surgery. The Veteran relates the left ankle disability to the osteoma since minor sores develop that turn into massive wounds on the ankles due to the lack of blood circulation caused by the osteoma and deep vein thrombosis. Service treatment records (STRs) show that in the February 1980 enlistment examination, the Veteran reported two left ankle fractures at age 10 and 11 and also complained of leg pain and cramps with exercise. Due to the constant running in basic training, the Veteran was told there were shin splints which later caused pain that radiated towards the left knee. The symptoms the Veteran experienced were severe sharp pain, weakness, loss of strength, and stress fractures. In September 1980, the Veteran complained of left ankle and leg pain. In October 1980 the Veteran complained of upper tibia pain and had a diagnosis of upper tibial stress fracture. In December 1980, the medical note reported that the stress fracture in the left leg was healing. The Veteran broke the left leg at the end of basic training. In January 1981, the Veteran complained that the left leg was painful and had a touch of knot. The Veteran’s separation examination is silent for any reference to varicose veins or any left leg disabilities. Post-service treatment records show that the Veteran had surgery in 1996 for a tumor in the left upper tibia. Since the surgery, the Veteran has had a history of deep venous thrombosis. In December 2006, it was reported that the Veteran has cellulitis foot. During the May 2016 Board hearing the Veteran testified that three weeks into basic training he started having trouble with pain in his left leg right below his knee. When he went to the hospital, he was told he had shin splints and was given crutches. Then on his last day of basic training he broke his left leg where he had a cast put on. He explained that his leg continued to bother him throughout his military career. He explained that he had a knot on the left tibia just below the knee where he had been told he had a stress fracture. He further explained how he broke his leg a second time in the same spot. While he had a cast on his leg it would swell and later in 1992, it was discovered he had blood clots and was placed on blood thinners. The Veteran also explained that when he was diagnosed with osteoma in 1996, his surgeon claimed that the tumor was caused from the shin splints he had in service and that the body’s reaction to shin splints is to calcify the bone. In May 2016, a private examiner reviewed the Veteran’s medical records from service and post-service and opines that it is as likely as not that the tumor that was removed from the Veteran’s left tibia in 1996 is related to the knot found at this site in service. The examiner also opined that it is as likely as not that the deep vein thrombosis the Veteran subsequently developed was the result of treatment for the left tibia tumor. In a January 2017 Disability Benefits Questionnaire that the Veteran submitted the examiner diagnosed the Veteran with peripheral vascular disease, venous thrombosis and embolism, type 2 diabetes with foot ulcer, and a bone tumor in his left leg. The examiner opined that the Veteran’s vascular conditions started due to the bone tumor in his left leg which began in service. An April 2017 VA examination opined that it is less likely that the Veteran’s left leg condition developed due to his military service since the complaints in service were a progression of symptoms of osteoma that began before service. The examiner explained that pain is the principal symptom of both initial and recurrent disease. The pain is most commonly noted in the area of the tumor and is described as continuous, deep, aching, and intense pain with varying quality and severity. It is typically localized to the site of the lesion. The examiner explained that symptoms of osteoid osteoma can last for years before diagnosis and eventual surgery. Some patients may have an exertional component, especially those with intracapsular lesions with synovitis and restricted range of motion. The pain may also affect the patient’s gait. The pain usually occurs before the lesions are visible on radiographs. The examiner further opined that the left leg osteoma existed prior to the Veteran’s military service and caused complaints of leg pain noted on his entrance examination. It was most likely brought on by the trauma that caused his two left ankle fractures at age 10 and 11. This trauma caused complaints of leg pain while in service that were diagnosed as shin splints and described as a “knot on the left leg,” but it did not develop while in service since osteoma takes years to develop not months. In a May 2017 VA examination, the Veteran explained that his left leg disability began when he developed a tumor in his left leg in 1996, which was surgically removed. The Veteran reports that his leg was noted to be swollen when the second cast came off and he was subsequently found to have blood clots in his legs in 1997 and that the condition has gotten worse since then. He explained that while he was in service, he developed shin splints and actually broke his left leg. After, the broken leg had a knot. The Veteran believes that this knot was what was removed later in 1996. The examiner opined that it was less likely than not that the Veteran’s deep venous thrombosis incurred in or was caused by service. The examiner points out that in the separation examination, it is reported that there is an absence of varicose veins at the end of service. The examiner further explained that there is no documentation of any injury or illness that occurred during service that has led to the development of his varicose vein condition. In the same May 2017 VA examination, the Veteran was diagnosed with left ankle degenerative arthritis. The Veteran reported that due to the vascular disease of the left lower extremity, he feels the deep venous thrombosis causes ulcers of the left ankle and leg. He has to treat these ulcers with hyperbaric oxygen. The examiner also opined that since the Veteran’s left ankle condition developed during his childhood, it is less likely than not that it developed due to service. He further opined that the left leg disability started prior to service and is unrelated to the left ankle condition. In a May 2019 VA medical opinion, the examiner opines that after reviewing medical literature, the cause of osteomas is unknown so it is unlikely it resulted during service. The examiner opined that it was found and excised in 1996, which is after his service dates, and thus it is less likely than not that it occurred in service. The examiner also diagnosed the Veteran with left ankle tendonitis and left ankle instability. The Veteran reported that while he was in basic training he gradually started having problems with his left ankle since he was running with combat boots for long periods of time. Then in a July 2019 VA medical opinion the examiner opined that the Veteran’s left leg disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner opined that the symptoms during service is noted due to shin splints and that the Veteran had an osteophyte surgery which result in deep venous thrombosis which was unrelated to stress fractures during service. The osteophytes are likely due to aging process. Moreover, the Veteran entered service with a history of ankle fractures, which is not the location of the osteophyte surgery, and thus, the disability pre-existed service and was not aggravated during service. The Board finds that the presumption of soundness has not been rebutted, and thus, the Veteran is presumed sound when entering service. While there are contentions that the Veteran had a pre-existing left leg and ankle disability and there is an indication in his entrance examination that he fractured his left ankle two times at ages ten and eleven, there is also evidence that the Veterans left leg disability, specifically his deep venous thrombosis, was not related to these two left ankle fractures at such a young age. There is no clear and unmistakable evidence showing that the Veteran’s current left leg and ankle disability pre-existed service. After evaluating the probative value of the evidence both for and against the claim, the Board is ultimately unable to assign greater probative value to either set of evidence. The Board highlights that various VA medical examiners have opined that the Veteran’s left leg disability was not etiologically related to service; however, the reasoning behind them raises questions. The April 2017 VA examiner claimed that the Veteran’s left leg osteoma existed prior to service and was most likely brought on by the trauma that caused his two left ankle fractures at age ten and eleven. The examiner did not review any medical records concerning these two fractures, nor explained how an ankle injury could eventually cause an osteoma in the shin. The May 2017 VA examiner opined that it was less likely than not that the Veteran’s deep venous thrombosis incurred in or was caused by service since the separation examination reported an absence of varicose veins and that there was no documentation of any injury or illness that has led to the development of his varicose vein condition. The examiner did not explain that there is a link between varicose veins and deep venous thrombosis and that if the Veteran were to develop deep venous thrombosis years later, it would have been necessary that the Veteran have a history of varicose veins for him to develop deep venous thrombosis. Moreover, this medical opinion ignores the osteoma and the reported knot in his left leg, which the Veteran contends is what caused the eventual deep venous thrombosis. This same examiner opined that since the Veteran’s left ankle condition developed during his childhood, it is less likely than not that it developed due to service. The examiner ignored the contention that the left ankle disability is caused by the deep venous thrombosis. The May 2019 VA examiner opined that because the cause of the osteoma is unknown, it is unlikely that it resulted during service and that since it was found and excised in 1996, which was after the Veteran’s service dates, it was less likely than not that it occurred in service. Just because an etiology of a disability is unknown and that it manifested after service, it does not mean that the disability could not have been etiologically related to service. The May 2016 and January 2017 private examiners both opined that the Veteran’s deep venous thrombosis was caused by the treatment of the bone tumor. The May 2016 examiner explained that it is at least as likely as not that the tumor that was removed was related to the knot found at the same spot in service. In light of evidence both for and against the claims for the left leg disability and the left ankle disability, the evidence in this case is at least in equipoise. Thus, resolving reasonable doubt in the Veteran’s favor, service connection for the left leg disability and for the left ankle disability is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam 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.