Citation Nr: 21002988 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-28 055 DATE: January 19, 2021 ISSUES 1. Entitlement to service connection for deep vein thrombosis (DVT), right lower extremity, to include as secondary to the service-connected residuals of right ankle contusion (right ankle disability). 2. Entitlement to a rating in excess of 10 percent for right ankle disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to service connection for DVT, right lower extremity, to include as secondary to the service-connected residuals of right ankle disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for right ankle disability is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT DVT, right lower extremity, was not shown in service or for many years thereafter, and has not been shown to be related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for DVT, right lower extremity, have not been met or approximated. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1961 to September 1963, November 1987 to May 1988, September 1990 to April 1991, and December 1993 to May 1998 with additional service with the Reserves. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May 2010 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. When this case was most recently before the Board in February 2019, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. As to the issue regarding DVT decided below, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C.A. § 7107 (a) (2) (West 2014). Service Connection Claim The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection is available for a disease or disability that is proximately caused by a service connected disease or disability; and for the aggravation of a non-service connected disability by a service connected disease or disability. 38 C.F.R. § 3.310 (2017). Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309. However, DVT is not considered to be a “chronic disease” under 38 C.F.R. § 3.309. Therefore, service connection for DVT on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, VA and private treatment records show diagnoses of DVT. Therefore, Hickson element (1) is met. With respect to Hickson element (2), in-service disease or injury, the Veteran asserts that his DVT is related to his service-connected right ankle disability. Accordingly, Hickson element (2) is at least arguably met. The Veteran was afforded a VA-contracted examination concerning this claimed disability in May 2014; however, no etiological opinion was provided by the examiner. Subsequently, in September 2014 an addendum VA opinion was received in which the examiner stated that the Veteran sustained a contusion-like injury with bruising and no fracture of the bone to the right ankle area while in service that required profiling for two weeks and elevation. The examiner stated that the ankle contusion healed with dissipation of superficial bruising expected, and he continued on to full duty; the DVT was not diagnosed until months later which was treated and resolved. The Veteran had a reoccurrence of the DVT in 2006. The examiner stated that the ankle condition was not at least likely as not related to the DVT history as the Veteran in fact had another DVT affecting the calf years after the right ankle injury. The Veteran was afforded a VA examination in August 2018 in which the examiner stated that review of the service treatment records in addition to the medical records did not show an etiological relationship between the ankle contusion sustained in service and a DVT which occurred acutely almost a year later. The examiner explained that the Veteran’s onset of the DVT was nine months after the original injury which made the likelihood of him having an acute DVT related to the injury in his right ankle unlikely given the temporal proximity to the original injury. The examiner stated that there was also no evidence of any tendon injury or ligament injury either at the time of the event that would also raise his risk of DVT. The examiner stated that the right leg DVT and the right ankle condition, although both noted to be on the right lower extremity, appeared to be separate and discrete occurrences. The examiner stated that given that the Veteran's DVT occurred nine months after the ankle injury sustained in service, and as there is no indication of any vascular, tendon or ligament involvement in the right ankle at the time of the injury, and given that there is documentation in record that swelling had resolved within a month of the incident, and given that the likelihood of having a DVT without known risk factors is not uncommon, it was less likely than not that the Veteran's DVT was etiologically related to the original ankle injury in service. The examiner opined that as for the aggravation of the condition, the Veteran’s DVT occurred after the ankle injury; the Veteran’s DVT was then not a pre-existing condition but occurred after the ankle injury, therefore could not be aggravated by that injury. The examiner opined that based on the evidence of record and clinical examination, the Veteran’s DVT condition, then, was not aggravated by the ankle condition. An addendum VA opinion was obtained in October 2019 in which the examiner opined that there was no evidence that the Veteran's service-connected ankle condition has had any impact on the Veteran's DVT condition in any capacity. The examiner stated that the Veteran developed a right-sided calf DVT nine months after sustaining a minor ankle contusion in service. The examiner stated that there has been no evidence at the time of the DVT event or since that event that the Veteran's ankle condition has contributed in any way to the DVT condition. These are separate and distinct events. The examiner stated that the Veteran's long- standing venous disease, which is bilateral, was directly attributable to unrelated factors that have progressed as expected over a period of decades. In this case, as to the issue of the etiology of the Veteran’s DVT, right lower extremity, the Board finds that the VA examiners made it clear that it was their opinions that the Veteran’s DVT was not related to service or to his service-connected right ankle disability. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Here, the examiners made it clear that DVT, right lower extremity, was caused by unrelated factors and that the service-connected right ankle disability did not cause or aggravate the DVT. Accordingly, the Board concludes that the VA opinions carry significant weight. No other competent opinion providing a positive nexus between service or the service-connected right ankle disability and the Veteran’s DVT, right lower extremity, has been presented. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his DVT is related to service or the service-connected right ankle disability. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. Therefore, the Veteran’s claims that his DVT, right lower extremity, was etiologically related to service or to the service-connected right ankle disability are outweighed by the competent and probative medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the to the VA examiners’ opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran’s history, and consideration of medical principles by licensed medical professionals. Therefore, a nexus between service and the Veteran’s DVT, right lower extremity, and service or the service-connected right ankle disability cannot be established, and the criteria of Hickson element (3) are not met. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the remaining claims on appeal are adjudicated. In response to the Board’s February 2019 remand, the Veteran was afforded a VA-contracted examination in September 2019. The Board notes that VA treatment records indicate that the Veteran fell off the steps of his porch in September 2019 subsequent to the VA examination, causing increased bilateral lower extremity edema; the Veteran also subsequently reported joint pain that was not noted in the September 2019 examination. Based on these treatment records, the claim must be remanded for a new VA examination to address the severity of the disability to properly adjudicate this claim.     In regards to the claim for a TDIU, this issue is intertwined with the remanded claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the manifestations of the service-connected right ankle disability.  The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes.   The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s disability, i.e., the extent of the Veteran’s pain-free motion.     Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done.   Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner(s) is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment.   All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.     2. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished an supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.  MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.