Citation Nr: 21015246 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-46 964 DATE: March 17, 2021 ORDER Entitlement to service connection for a disability manifested by left lower extremity chronic swelling, as secondary to residuals of right lower extremity deep vein thrombosis (DVT), is granted. REMANDED Entitlement to an initial rating in excess of 40 percent for residuals of right lower extremity DVT is remanded. FINDING OF FACT The Veteran has a disability of the left lower extremity manifested by chronic calf swelling that is proximately due to his residuals of right lower extremity DVT. CONCLUSION OF LAW The criteria for service connection for a disability manifested by left lower extremity chronic swelling, as secondary to residuals of right lower DVT, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1986 to February 1992, from April 1996 to July 1996 and from September 2001 to October 2001, with additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In this regard, the Veteran submitted new and material evidence within one year of the December 2014 rating decision, and thus that decision never became final. See January 2015 VA Form 21-4138; 38 C.F.R. § 3.156(b). When the claim was re-adjudicated in March 2017, he timely perfected this appeal. In November 2017, the Veteran requested a withdrawal of his appeal. See November 2017 VA Form 21-4138. Written withdrawals are effective when received. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). However, here the withdrawal did not meet the requirements set forth in the regulation, as the Veteran’s appeal was certified to the Board in October 2017 and the withdrawal requested was sent to the AOJ. See 38 C.F.R. § 20.204(b) (2017) (after appeal is transferred to the Board, withdrawal is not effective until received by the Board). Moreover, the Veteran was notified, and attended, a Board hearing in this matter, and the Board finds that VA has effectively withdrawn the defective written withdrawal found in the record. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In December 2020, the Veteran testified at a virtual hearing before the undersigned. The issue of entitlement to secondary service connection has been raised by the record and is part and parcel of the Veteran’s claim seeking an increased rating. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (the Board may need to explore schedular rating tools, including secondary service connection, prior to considering an extraschedular rating as part of an increased rating claim). The Board acknowledges the Veteran’s request for a prescription for a new pair of therapeutic boots. See December 2020 Statement in Support of Claim. The Veteran is advised that he should contact his VA medical provider directly. 1. Entitlement to service connection for a disability manifested by left lower extremity chronic swelling, as secondary to residuals of right lower extremity DVT, is granted. Secondary service connection may be granted for a disability that is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. As discussed below, the evidence shows that the Veteran experiences left leg symptoms productive of a functional impairment that are proximately due to his right leg DVT residuals. Thus, secondary service connection for this impairment is warranted. The Veteran’s private physician completed a disability benefits questionnaire (DBQ) and private medical notes are of record. See April 2020 Veins DBQ; April 2020 Private Treatment Record. The private treatment notes state that the Veteran has “right and possibly left recurrent [DVT]s with post-phlebitic syndrome that causes end of the day swelling and aching discomfort.” The notes show mild hyperpigmentation in both gaiter areas and bilateral moderate nonpitting edema. The DBQ states that the Veteran has bilateral lower extremity calf swelling and discomfort secondary to postphlebitic syndrome secondary to recurrent DVT. See April 2020 DBQ (Medical History). The 2017 VA examiner also noted left lower extremity symptoms. See February 2017 VA Veins Examination Report at 2 (noting left lower extremity “post-phlebitic syndrome of any etiology).” Here, the Veteran has a current left lower extremity disability. In this regard, while the private physician stated that the Veteran has “possible” DVT, it is unnecessary for the Board to resolve the precise diagnosis at present. For VA compensation purposes, a current disability generally may include a current functional impairment, even in the absence of a formal diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). Moreover, the Veteran’s left lower extremity symptoms of intermittent edema or fatigue after standing are of a similar severity, frequency, and duration to the manifestations contemplated by the rating schedule. See Wait v. Wilkie, 33 Vet. App. 8 (2020); 38 C.F.R. § 4.104, DC 7121 (10 percent criteria includes intermittent edema and fatigue after standing). Accordingly, he has a left lower extremity disability for VA compensation purposes. Moreover, the evidence shows that this disability is proximately due to his right lower extremity DVT, as the Veteran’s private physician explicitly stated as much in the April 2020 DBQ. While the rationale is terse, the causal chain provided by the examiner adequately identifies the relationship to a disease of service origin, and the Board resolves any reasonable doubt in this regard in favor of the Veteran. Critically, this is the only probative evidence of record as to the etiology of the Veteran’s left lower extremity disability. The AOJ will issue a rating decision assigning the initial rating and effective date of service connection. If the Veteran disagrees with the initial rating or effective date assigned by the AOJ, he may seek review of that decision by filing the appropriate VA-promulgated form. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 40 percent for residuals of right lower extremity DVT is remanded. The Board regrets the delay, but remand is necessary for additional development. The February 2017 VA examination report is inadequate, as the examiner indicated without elaboration or description that there were other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s service-connected disability. See February 2017 VA Veins Examination Report (11). Indeed, the Veteran competently and credibly testified as to a history of additional residuals, including swollen lymph nodes in the right groin area. See Hearing Transcript at 15. The April 2020 DBQ provided by the Veteran, while probative, is not wholly adequate for rating purposes as it also does not fully describe the Veteran’s disability. On remand, the Veteran should be afforded an adequate examination that fully describes the Veteran’s residuals. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Secure the Veteran’s complete VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records. 3. Schedule the Veteran for an examination as to the nature and severity of his right lower extremity DVT residuals. The claims file should be available to the examiner. All findings should be reported in detail. After a review of the claims file, the examiner should respond to the following: (a) Assess the severity of the Veteran’s right lower extremity DVT residuals. Please describe any additional physical findings, complications, conditions, or signs or symptoms of the Veteran’s right lower extremity DVT. The examiner should specifically note any residuals identified by the Veteran, and state whether these are etiologically related to right lower extremity DVT. In addressing part (a), the examiner should describe any flare-ups of DVT symptomatology, to include any increase of or additional symptomatology during hot weather. (b) The examiner is advised that the Veteran has reported a history of ulceration and open wounds, especially during warm weather in Florida. If persistent ulceration is not noted on examination, please state whether the Veteran’s reported history of ulceration is medically consistent, medically inconsistent, or neither consistent nor inconsistent with examination findings. (c) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s swollen lymph gland of the right groin area is proximately due to his right lower extremity DVT residuals. (d) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s swollen lymph gland of the right groin area has been aggravated (worsened beyond natural progression) by his right lower extremity DVT residuals. In addressing questions (c) and (d), the examiner’s attention is invited to the Veteran’s private treatment notes indicating his history of benign right groin lymphadenopathy. See, e.g., Medical Treatment Record Received May 7, 2018. A complete rationale must be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative (beyond the realm of medical knowledge, beyond the examiner’s knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.