Citation Nr: 21061733 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-66 832 DATE: October 5, 2021 ORDER New and material evidence having been received, the request to reopen the claim for service connection for left leg deep venous thrombosis is granted. Entitlement to service connection for left leg venous insufficiency is granted. REMANDED Entitlement to an initial rating in excess of 10 percent left hip limitation of adduction is remanded. Entitlement to an initial compensable rating for left hip limitation of extension is remanded. Entitlement to an initial compensable rating for left hip limitation of flexion is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Whether new and material evidence has been received sufficient to reopen the claim for service connection for a skin disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for lupus anti-coagulant is remanded. FINDINGS OF FACT 1. An August 2002 rating decision denied service connection for left lower extremity thrombophlebitis on the basis that the Veteran's left lower extremity thrombosis in the deep venous system was not due to service or the Veteran's service-connected left femur fracture. The Veteran did not appeal the decision and no new and material evidence was received within a year of the denial. Therefore, the decision became final. 2. Since the August 2002 rating decision, the evidence added to the file includes a September 2019 VA opinion which found that the Veteran's left lower extremity vein disability was likely due to his left femur fracture. The evidence is probative and relevant and cures the prior evidentiary defect of a nexus ot service. 3. The Veteran's left leg venous insufficiency is due to his service-connected left femur fracture. CONCLUSIONS OF LAW 1. The August 2002 rating decision is final as to the denial of service connection for a left leg vein disability. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 20.302, 20.1103 (2021). 2. New and material evidence sufficient to reopen the issue of service connection for a left leg vein disability has been received. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2021). 3. The criteria for service connection for left leg venous insufficiency are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to September 1981. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). January 2019 and March 2021 Board decisions remanded the issues on appeal for further development. Evidence in the record suggests that the Veteran has been diagnosed with multiple left leg vein conditions; therefore the Board will broadly construe the issue of service connection for left leg deep venous thromboses as a claim for service connection for a left leg vein disability, to include deep venous thromboses and venous insufficiency. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that "may reasonably be encompassed by" the description of the claim and symptoms and other submitted information). The March 2021 Board decision remanded the issues on appeal for a hearing with a decision review office (DRO). The directives asked that the Veteran be notified by mail of the date, time, and place of the hearing and that the RO indicate in the claim file whether the hearing was postponed, cancelled, or held. The file contains an April 2021 letter advising the Veteran of the date, time and location of his DRO hearing. An entry in VACOLs documents that the Veteran was a no show for the scheduled hearing. The Veteran's representative submitted a July 2021 Informal Hearing Presentation (IHP) stating that it was unclear whether the Veteran received the notice for the hearing because he did not respond or appear at the hearing. However, there is a presumption of regularity that attaches to the mailing of such notices. See Ashley v. Derwinski, 2 Vet. App. 307, 308-309 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994). The presumption may be rebutted by the submission of clear evidence to the contrary. Here, the record is silent for any returned mail in the file, any indication that mailing practices were not followed, any statement from the Veteran or any other indication that notice was not received. Absent such clear evidence of irregularity or nonreceipt, the presumption of regularity attaches, and the notice is considered to have been received. The IHP, while acknowledging that the RO updated VACOLs to reflect that the Veteran was a no show for the hearing, also contended that there was noncompliance with the remand directives as the RO failed to document the Veteran's no show in the claim file itself. However, the Board notes that substantial compliance with the remand directives, not strict compliance, is the relevant standard. See Stegall v. West, 11 Vet. App. 268 (1998). Here, while the RO did not upload documentation of the no show into the claim file, confirmation of the no show was nevertheless documented in VACOLs and therefore both reviewable by the Board and accessible to the Veteran's representative, and the July 2021 IHP shows that the Veteran's representative was in fact able to access that documentation. The Board therefore finds that there has been substantial compliance with the remand directives and will proceed to adjudicate the issues on appeal based on the evidence of record. Service Connection 1. Entitlement to service connection for a left leg vein disability, to include deep venous thrombosis and venous insufficiency The Veteran contends that his left leg vein disability is due to his left femur fracture in service. The Board finds that the Veteran has a current disability of left leg venous insufficiency that is likely due to his service connected left fracture, and service connection is therefore warranted. Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The record shows that the Veteran is service connected for residuals of a left thigh fracture, currently evaluated as a left hip disability. A December 2015 VA artery/vein examination noted a 1999 diagnosis of left leg deep venous thrombosis (DVT). The examiner noted an August 2016 diagnostic study that found mild venous insufficiency at the left femoral and popliteal veins. The examiner noted that there was no current evidence of any thrombi formation and opined that there was no current condition in terms of any emboli. The examiner opined that DVT had its onset in the 1990s, after service and that it was not service related. The examiner did not provide an opinion regarding either venous insufficiency or secondary service connection. A September 2019 VA artery/vein examination diagnosed venous insufficiency in the left leg. The examiner opined that the Veteran's left leg vein disability was likely due to service, stating as a rationale that the Veteran's service connected left femur fracture was a risk factor for venous insufficiency as it affected the anatomy of the circulatory system. The examiner specifically noted that the Veteran's venous insufficiency was unilateral, affecting only the left side, and stated that this fact supported the finding of causation. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). The Board finds that the Veteran has a current diagnosis of left leg venous insufficiency that was caused by his service connected left femur fracture. As the December 2015 VA examination did not provide an opinion regarding secondary service connection, the only competent evidence of record regarding the relationship between the Veteran's current left leg vein disability and his left femur fracture is the September 2019, which found that the service connected femur fracture was a risk factor that likely caused the Veteran's unilateral left leg venous insufficiency. Service connection is therefore warranted. 38 C.F.R. § 3.310(a). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent left hip limitation of adduction 2. Entitlement to an initial compensable rating for left hip limitation of extension 3. Entitlement to an initial compensable rating for left hip limitation of flexion A December 2015 VA examination evaluated the severity of the Veteran's left hip disability. The examiner stated that he could not offer an opinion as to functional loss during flare ups due to a lack of direct observation of function under those circumstances. The examination is therefore inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also notes that since that examination, the U.S. Court of Appeals for Veteran's Claims (the Court) has issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. As the December 2015 VA examination is inadequate regarding functional impairment during flare ups and did not include the testing required under Correia, remand for new examination is required. The Board also notes that the December 2015 examiner noted pain on flexion and abduction but did not note the point in the range of motion that pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. This information should be obtained upon remand in order to provide an accurate picture of the Veteran's level of functional impairment. 4. Entitlement to service connection for a lumbar spine disability A December 2015 VA examination diagnosed lumbar spondylosis and paravertebral myositis but found that they were not due to service. As a rationale, the examiner stated that the disability was likely due to aging and that service records were silent for a myositis back condition during service. The Board finds that this opinion is inadequate. First, the examiner did not provide any explanation for the finding that the Veteran's disability was likely age-related. The opinion is also silent for any consideration of the Veteran's documented complaints of low back pain in service and appears to be essentially based on the lack of a myositis diagnosis in service. It is therefore inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also notes the December 2015 examiner's finding of a leg length discrepancy that was secondary to the service connected left femur fracture. An April 2016 rating decision granted service connection for the left hip on the basis that it was due to that leg length discrepancy. The Board therefore finds that the question of whether the leg length discrepancy also caused or aggravated the Veteran's lumbar spine disability has been raised by the record, and an opinion regarding secondary service connection should be obtained upon remand. 5. Entitlement to service connection for tinnitus 6. Entitlement to service connection for a bilateral hearing loss disability A December 2015 VA audiological examination diagnosed sensorineural hearing loss and tinnitus. The examiner opined that hearing loss was not likely due to service. As a rationale, the examiner stated that the separation examination was normal, and while exposure to hazardous noise could cause permanent damage retroactive hearing loss was not to be expected. The examiner then stated that, "on the other hand, hearing loss might also be associated to the effect of the normal aging process." An opinion based on the absence of a disability in service, as this one, is inadequate and therefore a new opinion is needed. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In addition, the Board notes the examiner's use of the world "might" in identifying aging as a cause of the Veteran's hearing loss and finds that it renders the opinion speculative. Regarding tinnitus, the December 2015 examiner noted the Veteran's reports of constant tinnitus "for many years." The examiner then opined that tinnitus was not likely due to service, stating as a rationale that the Veteran complained of tinnitus 34 years after release from service, that records showed hearing loss first identified in 2007 and tinnitus was known to be associated with clinical hearing loss. The Board notes that the Veteran was released from service in 1981, and that July 2006 VA treatment records noted a report of tinnitus. The Board therefore finds the examiner's finding that the Veteran first complained of tinnitus 34 years after service, or in 2015, to be inaccurate. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinionbased on full review of the record and supported by stated rationaleis needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). 7. Whether new and material evidence has been received sufficient to reopen the claim for service connection for a skin disability 8. Entitlement to service connection for hypertension 9. Entitlement to service connection for lupus anti-coagulant The AOJ last adjudicated the issue of service connection for a skin disability, hypertension and lupus in a November 2017 Statement of the Case (SOC). Since that time, additional medical records, including VA treatment records, have been added to the claim file. A waiver of AOJ review was not submitted for those records. Accordingly, remand is necessary for the AOJ to consider the new evidence of record and issue a Supplemental Statement of the Case (SSOC). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left hip disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all left hip pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current lumbar spine disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current lumbar spine disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include whether it was caused or aggravated by his service-connected left femur fracture and leg length discrepancy. The opinion should specifically address January 1977 service treatment records noting back pain and muscle spasm. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. Schedule the Veteran for an appropriate VA examination, to determine the etiology of the Veteran's tinnitus and bilateral hearing loss disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus and bilateral hearing loss disabilities are related to his active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.