Citation Nr: 21062679 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-41 742 DATE: October 8, 2021 REMANDED Entitlement to service connection for an acute venous embolism and thrombosis of the deep vessels of the lower right extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran presented sworn testimony at a hearing before the undersigned in September 2019. The Board remanded this matter in January 2020 and February 2021 for additional development. 1. Entitlement to service connection for an acute venous embolism and thrombosis of the deep vessels of the lower right extremity is remanded. The Veteran contends that his acute venous embolism and thrombosis of the deep venous vessels of the right lower extremity was caused by his conceded exposure to herbicides or, alternatively, is secondary to his service-connected disabilities. Pursuant to the February 2021 remand, the Veteran was afforded a VA contract examination in May 2021. The contract examiner opined that the Veteran's venous embolism and thrombosis was less likely than not proximately due to or the result of, or aggravated by, his service-connected disabilities, noting that there are no medical journals or articles showing studies linking DVT to PTSD or cerebrovascular accident and that his DVT occurred before his CVA. The examiner then opined that the Veteran's acute venous embolism and thrombosis of the deep vessels of the right lower extremity is less likely than not caused by his exposure to herbicides, noting that there are no medical journals or articles showing studies linking the condition to herbicides. In a June 2021 addendum, the contract examiner again stated that the Veteran's right lower extremity DVT existed prior to his service-connected conditions and noted that the risk factors for DVT are obesity, age, sitting for long periods, prolonged bed rest, paralysis, injury, surgery, cancer, pregnancy, birth control pills, smoking, and multiple central line placements. The examiner then noted that PTSD is not a risk factor for DVT and again stated that he had a stroke after getting the DVT and that his paralysis was on the left side. The examiner then opined that the Veteran's DVT is less likely than not aggravated by PTSD or CVA. In a further June 2021 addendum, the contract examiner noted that the Veteran had no current diagnosis of DVT/thrombus of the right lower extremity or post-phlebitic syndrome. In Frost v. Shulkin, the U.S. Court of Appeals for Veterans Claims (Court) held that there is not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis. 29 Vet. App. 131, 138-39 (2017). The Court explained that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Id. Here, the contract examiner relied heavily on a lack of medical journal evidence and imposed a temporal requirement regarding causation. Further, in the May 2021 examination, although the examiner stated that the Veteran does not have post-phlebitic syndrome, he acknowledged that the Veteran's symptoms are relieved by elevating his right lower extremity and has beginning stasis pigmentation of the right lower extremity. Additionally, a June 2021 VA treatment record notes the Veteran was given compression socks to treat lower extremity edema. To date, no opinion regarding whether these symptoms are residuals of the Veteran's DVT of the right lower extremity has been rendered. Finally, the Board acknowledges the argument from the Veteran's representative in the September 2021 Informal Hearing Presentation (Informal) that the examiner's reliance on a June 2013 venous doppler which revealed no current right lower extremity DVT was inadequate and that they should have used more recent medical records. In the Informal, Disabled American Veterans also cited the Frost decision, discussed above. The Board notes that the evidence of record shows no current right lower extremity DVT. In a February 2021 letter sent to the Veteran and the representative, VA requested that any outstanding treatment records be identified, and that the Veteran effectuate a release for any such records. To date, no response has been received. The matters are REMANDED for the following action: 1. Reach out to the Veteran and his representative to identify any outstanding treatment records, private or otherwise, relevant to his claim. Ask the Veteran to complete a VA Form 21-4142 for any identified records. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his acute venous embolism and thrombosis of the deep vessels of the lower right extremity. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is acute venous embolism and thrombosis of the deep vessels of the lower right extremity at least as likely as not related to service, including conceded exposure to herbicides? Provide a rationale to support the opinion(s). Is acute venous embolism and thrombosis of the deep vessels of the lower right extremity at least as likely as not proximately due to his service-connected disabilities? Is acute venous embolism and thrombosis of the deep vessels of the lower right extremity at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected disabilities? The examiner is advised that a negative opinion cannot be based solely on the fact that the acute venous embolism and thrombosis of the deep vessels of the lower right extremity is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner is asked to discuss what risk factors for DVT, if any, specifically apply to the facts of the Veteran's DVT of the right lower extremity. The examiner must opine as to whether Veteran's symptoms being relieved by elevating his right lower extremity, edema, and beginning stasis pigmentation of the right lower extremity are residuals of his acute venous embolism and thrombosis of the deep vessels of the lower right extremity? It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.