Citation Nr: A21018043 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 210222-137569 DATE: November 9, 2021 ORDER Service connection for pulmonary emboli is denied. Service connection for left lower extremity deep vein thrombosis (DVT) is denied. Service connection for right lower extremity DVT is denied. Service connection for a left hand condition is granted. REMANDED Service connection for a left shoulder disability is remanded. Service connection for tension headaches is remanded. Service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran's pulmonary emboli are related to his active service; any current pulmonary emboli were not present in active service and are not otherwise related to service. 2. The preponderance of the evidence weighs against a finding that the Veteran has left lower extremity DVT related to his active service; any current left lower extremity DVT was not present in active service and is not otherwise related to service. 3. The preponderance of the evidence weighs against a finding that the Veteran has right lower extremity DVT related to his active service; any current right lower extremity DVT was not present in active service and is not otherwise related to service. 4. The Veteran has a left hand condition manifested by numbness, weakness, and nerve involvement that is proximately due to his service-connected left wrist navicular fracture. CONCLUSIONS OF LAW 1. The criteria for service connection for pulmonary emboli are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for left lower extremity DVT are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for right lower extremity DVT are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria to establish service connection for a left hand condition 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 November 1988 to August 1995. In February 2021, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal electing the Direct Review docket to review a March 2020 Higher Level Review (HLR) decision on the issues of entitlement to service connection for pulmonary emboli, left hand condition, and bilateral lower extremity DVT and a June 2020 decision on the issues of entitlement to service connection for bilateral pes planus, a left shoulder disability, and tension headaches by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Evidence was added to the claims file during a period of time when new evidence was not allowed. The Board may not consider this evidence in the decisions on the bilateral lower extremity DVT claims, but the Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 20.300. If the evidence is new and relevant, VA will issue another decision on the claim. Id. Evidence relating to headaches was also added to the claims file during a time period when new evidence was not allowed. As the Board is remanding this claim for further development, the additional evidence will be considered by the AOJ SERVICE CONNECTION A veteran is entitled to VA disability compensation for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). 1. Pulmonary emboli and bilateral lower extremity DVT In April 2018, the Veteran initiated a claim for blood clots and DVT and later clarified that he was seeking service connection for blood clots and DVT affecting his lungs. See June 2018 Report of General Information. The Veteran has not proffered any argument as to why he believes pulmonary emboli or DVT are related to his active service. The March 2020 HLR rating decision identified a favorable finding of a diagnosis of recurrent pulmonary emboli beginning in July 2003. The Veteran's VA medical records reflect a reported medical history of DVT. The Board finds no probative evidence of record to support findings of an in-service incurrence or aggravation of a disease or injury or a nexus to meet the second and third Shedden elements for pulmonary emboli or bilateral lower extremity DVT. The record is devoid of any evidence identifying an in-service incurrence of the diseases or an injury. The record also does not indicate that pulmonary emboli or DVT are otherwise related to any in-service disease, injury, or event. Service treatment records (STRs) reflect no complaints or findings of chest pain, lung abnormalities, or symptoms of DVT in the bilateral lower extremities. Moreover, the record does not document any treatment for, or findings of, pulmonary emboli or DVT prior to 2001. July 2003 VA treatment records that confirmed a diagnosis of pulmonary embolism determined the pulmonary emboli were of unknown etiology. An associated July 2003 ultrasound report concluded that the bilateral lower extremities showed no evidence of DVT. The Veteran's subsequent reports of his medical history indicate a history of recurrent pulmonary emboli and DVT, with the first episode of pulmonary emboli in 2001. The Board acknowledges that the Veteran may sincerely believe that his pulmonary emboli and history of DVT are related to his active service. However, there is no indication he has the training or experience to competently provide an opinion on the etiology of his conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In any event, neither he nor his attorney have proffered an explicit opinion on the etiology of these claimed disabilities. In summary, the preponderance of the evidence weighs against a finding that the Veteran's pulmonary emboli and bilateral lower extremity DVT began in service or are otherwise related to his active service. The claims for service connection are denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67. 2. A left hand condition In April 2018, the Veteran initiated a claim for numbness in the left hand secondary to his service-connected left wrist fracture. In an April 2019 rating decision, the AOJ identified a favorable finding that a March 2019 VA medical opinion found carpal tunnel (left hand weakness and left hand numbness) was due to the left wrist fracture; however, the Board finds a clear and unmistakable error in this favorable finding because it is factually inaccurate. 38 C.F.R. § 20.801(a). The April 2019 VA medical opinion reviewed a June 2018 positive medical opinion and concluded that carpal tunnel/left hand weakness/tingling was less likely than not due to the left wrist fracture because the medical evidence did not support a diagnosis of carpal tunnel. As such, this favorable finding is not binding on the Board's decision. The AOJ also identified the following favorable findings in the March 2020 decision on appeal: the claimed primary disability is service connected; the claimed disability is a chronic disease which may be presumptively linked to military service; the Veteran has sufficient service to meet the minimum requirements for presumptive service. As such, the second Wallin element is not in dispute. The Veteran is service connected for left wrist fracture. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). First, the Board finds the Veteran has a current disability, claimed as left hand numbness and characterized as carpal tunnel syndrome by the AOJ. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (pain alone can constitute a disability if it causes functional impairment of earning capacity); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020) (the Saunders holding is not limited to pain and applies in any case implicating the definition of disability in 38 U.S.C. § 1110). At a June 2018 peripheral nerve examination, the examiner declined to provide diagnoses due to a lack of electrophysiological evidence of a disability upon nerve conduction testing but noted the Veteran's reports of weakness and radiating numbness from the left thumb into the forearm that limited his abilities. The examiner characterized the symptoms as moderate intermittent pain and severe numbness. Upon examination, the Veteran's left hand demonstrated decreased strength with grip, wrist extension and flexion, and pinch. The examiner described nerve involvement as moderate incomplete paralysis of the left radial nerve and moderate incomplete paralysis of the left musculocutaneous nerve. The Veteran also reported at a May 2018 examination that functional impairment from his left hand symptoms, including left thumb and index finger numbness, caused him to do almost everything with his right hand. The Board finds the evidence at least in equipoise that the Veteran's left hand symptoms of numbness and decreased strength with nerve involvement results in functional impairment of earning capacity. Therefore, the first Wallin element is met. Martinez-Bodon, 32 Vet. App. at 398. Second, the Board finds the probative evidence supports a finding of a nexus between the current disability and the service-connected left wrist fracture. The June 2018 examiner concluded that the claimed left hand condition was at least as likely as not proximately due to the service-connected left wrist fracture, explaining that it was a direct result of the fracture and that the conclusion was supported by medical literature. The April 2019 addendum medical opinion noted that this positive nexus opinion was for a condition that had no diagnosis and concluded that a nexus could not be supported because there was no medical evidence of a diagnosis of carpal tunnel. As discussed above, the lack of a diagnosis does not preclude a finding of disability for VA purposes. As the evidence for and the evidence against a finding that the claimed left hand condition is proximately due to the left wrist fracture is at least in relative equipoise, the Board affords the Veteran the benefit of the doubt. Accordingly, the third Wallin element is met and the Board grants service connection for a left hand condition. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The issues of entitlement to service connection for a left shoulder strain, tension headaches, and bilateral pes planus are remanded to correct pre-decisional errors to assist the Veteran in the development of his claims. 38 C.F.R. § 20.802(a) (the Board shall remand for correction of an AOJ error to satisfy its duties under 38 U.S.C. § 5103A). 1. A left shoulder disability In the Veteran's June 2019 initial claim for service connection for a left shoulder disability, the Veteran contended that the disability was secondary to his left wrist disability and indicated that he compensated for the left wrist. The AOJ made a favorable finding in the March 2020 HLR rating decision that the claimed primary disability (left wrist fracture) is service connected and returned the claim for correction of a duty to assist error and readjudication. 38 C.F.R. § 3.2601(g). In April 2020, the Veteran was provided a VA examination. The examiner found the Veteran had a left shoulder disability and found such unrelated to active service or the left wrist fracture. The examiner found the left shoulder condition unrelated to the left wrist fracture due to a lack of "objective evidence" of a relationship between the two. The Board finds the April 2020 examiner's statement on secondary service connection was not supported by sufficient rationale to make an informed decision on the claim. See 38 U.S.C. § 5103A(d)(2)(C). Specifically, the April 2020 VA opinion did not consider all information, including the statements of the Veteran that he compensated with his left shoulder for the left wrist disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the Veteran is competent to testify to facts he personally observed, including recall of what he personally felt, saw, smelled, heard, or tasted). As such, remand is warranted for an addendum opinion. 2. Tension headaches In the Veteran's June 2019 initial claim for service connection for headaches, the Veteran contended that his headaches were secondary to service-connected tinnitus and indicated the headaches may also relate to nightmares and a personal assault resulting in military sexual trauma (MST). The AOJ made favorable findings in a July 2019 rating decision that STRs showed a qualifying event, injury, or disease had onset in service (one instance of a headache being reported) and that the Veteran was diagnosed with a disability (VA records showing headache complaints). The AOJ made additional favorable findings in the March 2020 HLR rating decision that a November 1994 STR noted a tension headache and the claimed primary disability (tinnitus) is service connected before returning the claim for correction of a duty to assist error and readjudication. 38 C.F.R. § 3.2601(g). The AOJ made additional favorable findings in the June 2020 rating decision that the Veteran was diagnosed with tension headaches (confirmed at a VA examination), the claimed disability is a chronic disease which may be presumptively linked to military service, and the claimed issue became manifest to a degree of 10 percent or more following service. In April 2020, the Veteran was provided a VA examination. The examiner diagnosed tension headaches, noted the Veteran's reports that headaches began in service and worsened in severity and frequency since, and found no relationship between headaches and active service due to a lack of complaints of headaches at the separation examination. The Board finds the April 2020 examiner's statement was not supported by sufficient rationale to make an informed decision on the claim. See 38 U.S.C. § 5103A(d)(2)(C). Specifically, the April 2020 VA opinion did not consider all information, including the statements by the Veteran that headaches began in 1994 and increased since. See 38 C.F.R. § 3.307(a)(3); Layno, 6 Vet. App. at 469 (1994). The opinion also failed to address the alternative theory of entitlement that headaches are secondary to nightmares due to MST. See March 2020 VA behavioral health medical opinion, at 2 (finding posttraumatic stress disorder (PTSD) related to MST); see also February 2019 PTSD VA examination report, at 8 (reporting nightmares as a primary psychiatric symptom). As such, the Board finds remand is warranted for an addendum opinion. 3. Bilateral pes planus In the Veteran's June 2019 initial claim for service connection for a left foot injury, the Veteran contended that an injury occurred during an MST personal assault in Honduras around 1991. His attorney also contended that STRs reflecting treatment for a left foot cold weather injury and a separate left foot and ankle injury were sufficient to warrant a VA examination. 38 U.S.C. § 5103A(d)(1). The AOJ made a favorable finding in the March 2020 HLR rating decision that STRs showed qualifying event, injury, or disease had onset in service (April 1990 and January 1992 records noting left foot pain) before returning the claim for correction of a duty to assist error and readjudication. 38 C.F.R. § 3.2601(g). The AOJ made an additional favorable finding in the June 2020 rating decision on appeal that the Veteran was diagnosed with a disability (bilateral pes planus) and readjudicated the issue of entitlement to service connection for bilateral pes planus. In April 2020, the Veteran was provided a VA examination. The examiner found the Veteran had bilateral pes planus, noted the Veteran's reports that left foot pain began in 1991 and worsened over time, and found no relationship between a left foot disability and active service due to no complaints of a left foot condition at discharge. The Board finds the April 2020 examiner's statement was not supported by sufficient rationale to make an informed decision on the claim. See 38 U.S.C. § 5103A(d)(2)(C). Specifically, the April 2020 VA opinion did not consider all information when providing a rationale, including the statements by the Veteran that left foot pain began in 1991 and increased since and his report of a left foot injury during a personal assault. Layno, 6 Vet. App. at 469. The opinion also did not consider all relevant medical evidence, including STRs reflecting treatment for a left foot and ankle injury in 1992 and evaluations for cold weather injury to the feet in 1990 and 1992. Moreover, the April 2020 opinion did not address the diagnosis of bilateral pes planus. 38 U.S.C. § 5103A(d)(2). As such, the Board finds that remand is warranted for an addendum opinion. The matters are REMANDED for the following actions: 1. Obtain a medical opinion from an appropriate VA clinician regarding the etiology of the Veteran's left shoulder disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The reviewing clinician must opine on: (a.) Whether a left shoulder disability is at least as likely as not proximately due to service-connected left wrist fracture. (b.) Whether a left shoulder disability is at least as likely as not aggravated beyond its natural progression by service-connected left wrist fracture. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The reviewing clinician is advised that a finding that a left shoulder disability was aggravated beyond its normal progression due to the left wrist fracture may encompass any additional incremental increase in disability resulting from the left wrist disability, regardless of its permanence. If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Obtain a medical opinion from an appropriate VA clinician regarding the etiology of the Veteran's tension headaches. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The reviewing clinician must opine on: (a.) Whether tension headaches at least as likely as not began during active service. (b.) Whether tension headaches at least as likely as not manifested within one year after discharge from service. (c.) Whether tension headaches at least as likely as not had continuity of the same symptomatology since service. (d.) Whether tension headaches are at least as likely as not proximately due to service-connected PTSD. (e.) Whether tension headaches are at least as likely as not aggravated beyond their natural progression by service-connected PTSD. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history, including onset of symptoms in 1994 that continued since. Such reports must be acknowledged and considered in formulating any opinion. If there is any medical reason to accept or reject the proposition that the 1994 STR for tension headaches represented the onset of his current disability, this should be noted. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The reviewing clinician must also consider the Veteran's contentions that headaches were caused or aggravated by nightmares associated with PTSD. The reviewing clinician is advised that a finding that tension headaches were aggravated beyond its normal progression due to PTSD may encompass any additional incremental increase in disability resulting from PTSD, regardless of its permanence. If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Obtain a medical opinion from an appropriate clinician regarding the etiology of the Veteran's bilateral pes planus. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The reviewing clinician must opine on whether the Veteran's bilateral pes planus is at least as likely as not related to an in-service injury, event, or disease: In formulating the opinion, the reviewing clinician must consider STRs reflecting March to April 1990 and January 1991 treatment for a cold weather injuries to the feet and a January 1992 left foot and ankle injury. The reviewing clinician is also advised that the Veteran is competent to report his symptoms and history, including that he injured his left foot during an MST personal assault around 1991. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.