Citation Nr: 21073746 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 14-21 114A DATE: December 10, 2021 ORDER Entitlement to service connection for deep vein thrombosis (DVT), to include as secondary to service-connected bilateral hallux valgus disability, is denied. Entitlement to service connection for pulmonary embolism (PED), to include as secondary to service-connected bilateral hallux valgus disability, is denied. FINDINGS OF FACT 1. The most probative evidence of record does not show that the Veteran has DVT that is etiologically related to a disease, injury, or event in service, or to a service-connected disability. 2. The most probative evidence of record does not show that the Veteran has PED that is etiologically related to a disease, injury, or event in service, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for DVT has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 2. The criteria for entitlement to service connection for PED has not been met. 38 U.S.C. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to March 1988. He had additional service with the National Guard between approximately 1988 and 1994, with an unverified period of active duty in 1992, and reenlisted with the Reserves from 1996 until 1998. In May 2018, he had a hearing before the undersigned. These claims were remanded in August 2018 and July 2021. The Board must assess the credibility and weight of all 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. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Other than as discussed below, the Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. With regard to the duty to assist, the Veteran questioned in an October 2021 statement how a September 2021 VA examination could have been completed without his presence. In this regard, the Veteran is advised that the July 2021 Board remand did not request that a physical examination be conducted but instead requested that VA medical opinions be provided based on a review of the pertinent evidence of record, which was done. As the claims file clearly documents the Veteran's medical history, to include his DVT and PED, the Board finds no purpose would be served by further physical examination of the Veteran with regard to these claims. The Veteran went on to argue in the October 2021 statement that the September 2021 VA examiner misinterpreted his claims, and that the opinion is solely based on the Veteran not being seen while on active duty for the claimed disabilities. Further, the representative argued in the October 2021 Appellant's Post-Remand Brief that the examiner did not consider that the Veteran's DVT is a result of a progression of his feet disabilities. The representative argued that the severity of the Veteran's feet disabilities and the vascular insufficiency of blood supply due to a service-connected disability resulted in the DVT. In this regard, the Board finds no evidence in the September 2021 VA opinion to suggest that the examiner misunderstood the claims or the assertions being made with regard to a relationship between the Veteran's service-connected foot disabilities, to include his related surgeries, and his DVT or PED. The examiner clearly discussed the Veteran's service-connected disabilities and related surgeries, to include associated bedrest. While the examiner discussed the Veteran's assertions regarding cramps on active service as well, there is no indication that the opinion is based solely on the Veteran not being seen while on active duty for the claimed disabilities. The examiner clearly considered the Veteran's medical history, including his service-connected conditions. Moreover, the Board notes that the Veteran questioned in the October 2021 statement whether the examiner read his records from the start of the process. In this regard, the Board notes that the VA examiner specifically indicated that he reviewed Veterans Benefits Management System (VBMS) records, CAPRI records, service treatment records, the July 2021 Board decision, and the January 2020 VA medical opinion. There is no indication that the examiner did not review all pertinent records, and it is presumed that the examiner did so in the course of completing the opinion request, unless there is clear evidence to the contrary. There is no such evidence here. In short, the Board understands the Veteran's assertion that his post-service surgeries related to his service-connected disabilities necessitated bed rest, which resulted in blood clots and ultimately his DVT and PED. The September 2021 VA examiner was asked specifically to address this assertion, which he clearly did in the VA opinion report, determining that the DVT and PED found in 2013 could not develop as a result of surgeries conducted years earlier. As such, the Board finds that September 2021 VA opinion adequately addressed the Veteran's assertions and is sufficient upon which to evaluate the claims on appeal. The duty to assist has been met. While the Board understands the Veteran disagrees with the conclusions the examiner reached, that does not mean the opinion is inadequate in any way. The Veteran has not alleged any deficiency with his May 2018 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Board acknowledges that the Veteran submitted a VA Form 9 in October 2021, indicating that he wished to be scheduled for a live videoconference hearing. However, as the Veteran did not identify the issues on appeal before the Board in this VA Form 9, the Board does not find this to be a valid hearing request with regard to these specific issues on appeal. Rather, the issue that the Veteran identified on the VA Form 9 (the accuracy of total combined rating) is not pending before the Board. It appears the Veteran was attempting to disagree with the calculation of his combined rating in an August 2021 rating decision; however, a VA Form 9 is not the proper form for doing so. The Veteran is advised that, if he disagrees with any aspects of the August 2021 rating decision, to include the calculation of his combined rating, he should submit his disagreement on the appropriate form, of which his representative may advise him. Separately, the Board acknowledges that, in October 2021, the Veteran submitted a Decision Review Request: Supplemental Claim, VA Form 20-0995, pertaining to the issues on appeal. However, the 'OPT-IN from SOC/SSOC' box was not checked, which would have withdrawn the issues from the Legacy appeals process. Moreover, the Veteran did not identify the decision as a statement of the case (SOC) or a supplemental statement of the case (SSOC) but instead identified the July 2021 Board remand of these issues. A Board remand is not a decision. As such, the Board does not find that these issues have been properly withdrawn from the Legacy appeal system, and the Board will proceed to adjudicate the issues on appeal in accordance with the Legacy appeals system. Finally, the Board notes that, although additional evidence was received after the September 2021 SSOC, the evidence does not require waiver of initial AOJ consideration, as the Veteran's substantive appeal was received after February 2, 2013. As such, the Board may proceed to adjudicate the claims as done below without prejudice to the Veteran. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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 also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is seeking service connection for DVT and PED. Specifically, in a July 2020 statement, the Veteran asserted that he was required to be placed in a bedrest position for weeks during recovery periods following surgery for service-connected disabilities, which could have been a contributing factor towards PED/DVT. He further asserted in July 2020 and August 2020 statements that consideration should be given as to whether the disabilities on appeal are related to calf, rib, and other injuries, to include cramps, that he suffered in service. A review of his service treatment records reveals no complaints, treatment, or diagnoses specifically related to DVT or PED. Evidence of record reflects that the Veteran experienced DVT and PED in 2013. In a June 2014 VA examination, the examiner noted that the Veteran developed DVT in June 2013. Review of medical literature, UpToDate, fails to document any correlation between DVT and remote surgery. There is only a correlation with recent surgery, and the Veteran's service-connected foot surgeries were performed in 2003, 2007, and 2009. The most recent surgery preceded the DVT by 6 years. The examiner also determined that there is no evidence in the medical literature, UpToDate, that a PED is related to remote surgery. Most PEDs arise from acute thrombi in the deep venous system of the lower extremities. In a January 2020 VA opinion, the examiner determined that the Veteran's DVT was less likely than not incurred in or caused by the Veteran's bilateral feet disabilities, including pes planus, hallux valgus, hallux rigidus, and degenerative joint disease. It was noted that a major theory delineating the pathogenesis of venous thromboembolism, often called Virchow's triad, proposed that DVT occurs as a result of alterations in blood flow, vascular endothelial injury, and alterations in the constituents of the blood. The weight of the literature is against a relationship between pes planus, hallux valgus, hallux rigidus, degenerative joint disease, and DVT/PE. The examiner further found that the Veteran's DVT is less likely than not proximately due to or the result of the Veteran's pes planus, hallux valgus, hallux rigidus, degenerative joint disease. The DVT claimed condition was not aggravated beyond its natural progression by the Veteran's pes planus, hallux valgus, hallux rigidus, degenerative joint disease. The examiner also concluded that the Veteran's PED was less likely than not incurred in or caused by the Veteran's service or aggravated or caused by any of the Veteran's bilateral foot conditions. The examiner noted that the Veteran's PED was most likely caused by a leg vein thrombi. In a September 2021 VA opinion, the examiner stated that he concurred with all of the opinions rendered in the January 2020 examination report, including the rationales provided. The examiner concluded that it is not likely that the Veteran's DVT was caused or aggravated by his service. The examiner noted that the Veteran was diagnosed with deep vein thrombosis in June 2013, several years after his military service. There is no diagnosis or objective documentation or treatment for deep vein thrombosis in service. There is no nexus for causing or aggravating in service. The examiner noted that calf, rib, and other injuries, to include cramps he suffered in service, are not risk factors for the development of DVT years later. One can develop DVT due to prolonged bedrest with no preventative measures during an immediate period, but certainly not years later. The examiner further concluded that it is not likely that the Veteran's DVT was caused or aggravated by his service-connected disabilities. The examiner noted that the Veteran's bilateral feet disabilities, including pes planus, hallux valgus, hallux rigidus, and degenerative joint disease are not known to cause or aggravate DVT. The examiner noted the Veteran's assertions that he was required to be placed in a bedrest position for weeks during recovery periods, which could have been a contributing factor towards his DVT. The examiner noted that one can develop DVT due to prolonged bedrest with no preventative measures during immediate period, but certainly not years later. The examiner noted that the Veteran's PED is due to DVT therefore, risk factors are the same for PED as DVT. DVT is caused by alterations in blood flow (i.e. stasis), vascular endothelial injury and alterations in the constituents of the blood (i.e., inherited or acquired hypercoagulable state) and may lead to PED. The examiner noted that the Veteran was diagnosed with PED several years after his military service. There is no diagnosis or objective documentation or treatment for PED in service. There is no nexus for causing or aggravating in service. The examiner further noted that it is not likely that the Veteran's PED was caused or aggravated by his service-connected disabilities. The examiner noted that the Veteran's bilateral feet disabilities, including pes planus, hallux valgus, hallux rigidus, and degenerative joint disease are not known to cause or aggravate PED. The examiner noted that one can develop PED due to prolonged bedrest with no preventive measures during immediate period, but certainly not years later Upon review of the claims file, the Board finds that the most probative and persuasive evidence of record does not link the Veteran's PED or DVT to service or to a service-connected disability. Specifically, the September 2021 VA examiner did not link the Veteran's PED or DVT to his service or to a service-connected disability. The Board finds this opinion is the most probative and persuasive medical evidence of record on the matter, as the examiner reviewed the pertinent evidence of record, considered the Veteran's assertions, and provided detailed rationales for these opinions, including detailed discussions of the medical principles concerning these conditions. The Board has considered an October 2013 VA medical record from a physician in the vascular surgery unit, in which it was noted that a calf or lower extremity venous thrombus embolizes to the lung. It was noted that the Veteran had had longstanding bilateral foot problems, which started when he was in service, training, marching, running, etc. At times, his mobility has been affected by his foot problems and low back pain syndrome. The physician noted that they discussed the possibility that his chronic foot conditions, especially concerning the left, "lead" to a chain of events that caused his DVT and PE, and now he will always have a higher risk of DVT again, since he had this initial event. In a May 2018 VA medical record from this same physician, it was noted that a calf or lower extremity venous thrombus can and did embolize to the Veteran's lung. It was noted that he had had a long history of foot problems and had surgery for flat feet and first toe degenerative joint disease bilaterally. He also has chronic low back pain. These problems started when he was in service, training, marching, running, etc. At times, his mobility has been affected by his foot problems and low back pain syndrome. The Veteran was advised that his chronic foot condition "can led" to a chain of events that have caused his DVT and PE, and now he will always have a higher risk of recurrent DVT. The Board finds that determining that something "can" lead to events is simply too speculative to establish a nexus. Moreover, the physician's indication in the October 2013 VA medical record that there is a "possibility" that his chronic foot conditions led to a chain of events that caused his DVT and PE is also speculative. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a medical nexus). As such, the Board finds the September 2021 VA opinion to be more probative on this matter. Moreover, the Board has also considered a November 2020 letter from Dr. Peterson, who determined that the Veteran's increased blood clotting tendencies are likely related to his previous several surgeries that he has undergone as a result of his previous trauma. However, the Board ultimately does not find this statement to be probative medical evidence indicating that the Veteran's PED or DVT is related to surgeries for his service-connected disabilities. There is no evidence that Dr. Peterson reviewed the Veteran's claims file, nor did he provide a detailed rationale to support a specific finding that the Veteran's DVT and PED are related to surgeries he underwent for service-connected disabilities years prior to the DVT and PED. The Board has considered all of the medical literature submitted by the Veteran addressing DVT and PED. However, the Board finds that such generic texts, which do not address the facts of this particular Veteran's case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Additionally, the Board has considered the Veteran's contentions that he experienced a PED or DVT related to his service or to a service-connected disability. Specifically, the Board has considered the Veteran's assertions that his PED and DVT could be related to being required to be placed in a bedrest position for weeks during recovery periods or related to calf, rib, and other injuries, to include cramps, that he suffered in service. However, the Board finds that the Veteran is not competent to provide such links, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his DVT or PED and his service or a service-connected disability exists. In contrast, the Board notes that the September 2021 VA examiner considered these assertions and reviewed the pertinent evidence of record before providing opinions with detailed supporting rationale. As such, the Board finds the September 2021 VA opinion to be more probative on these matters. To the extent that the Veteran asserted in an October 2021 statement that he should have been provided a vascular follow-up to check for clotting, the Board notes that compensation shall be awarded for a qualifying additional disability or death of a Veteran in the same manner as if the additional disability or death were service connected under 38 U.S.C. § 1151. Such is considered a qualifying additional disability or death under the law if it is not the result of the Veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. 38 U.S.C. § 1151. Therefore, the Veteran is advised that if wishes to file a claim for a disability he believes is caused by VA care or treatment, he is free to do so. These allegations, however, will not be discussed as part of this appeal, as such a claim has not been properly appealed to the Board. Moreover, the Board acknowledges the Veteran's October 2021 statement indicating that he has recently been diagnosed with bilateral venous insufficiency and that his current symptoms match with some of his in-service symptoms. In support of this statement, he submitted an August 2020 private medical record from Pinellas Vascular, LLC, in which it was noted that the Veteran had a history of PED/DVT in 2013, for which he has taken coumadin ever since. It was noted that the onset of venous insufficiency has been gradual and has been occurring in a continuous fashion. It was noted that the venous insufficiency is characterized by aching, burning, pain, and swelling of both lower extremities. The Board has considered this evidence and the Veteran's statement regarding venous insufficiency but ultimately finds that the claims before the Board have been characterized and processed throughout the appeal as claims for entitlement to service connection for DVT and PED, not as entitlement to service connection for venous insufficiency. Thus, the Board does not have the jurisdiction to review a claim for service connection for venous insufficiency in the first instance at this time. The Board advises the Veteran that he is always free to file a claim for service connection for venous insufficiency, if he so chooses. In summary, as the most probative medical evidence of record on the matter does not link the Veteran's PED or DVT to service or to a service-connected disability, and the Veteran is not competent to provide the link himself, the Board finds that the preponderance of the evidence is against the claims for service connection for PED or DVT, and the benefit-of-the-doubt rule is not for application. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.