Citation Nr: 0704292 Decision Date: 02/09/07 Archive Date: 02/22/07 DOCKET NO. 05-35 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for right lower extremity venous stasis with stasis dermatitis, to include on a secondary basis. 2. Entitlement to service connection for left lower extremity venous stasis with stasis dermatitis, to include on a secondary basis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from April 1943 to September 1945. He was a prisoner of war (POW) of the German government from November 1944 to April 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which, in part, denied the veteran's claims of entitlement to service connection for right and left lower extremity venous stasis with stasis dermatitis. The veteran filed a notice of disagreement in regards to the May 2005 rating decision. He requested review by a decision review officer (DRO). The DRO conducted a de novo review of the claims and confirmed the RO's findings in an October 2005 statement of the case (SOC). The appeal was perfected with the timely submission of his substantive appeal VA Form 9) in October 2005. In March 2006, a motion to advance this case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (2006). This case was remanded by the Board in April 2006 for additional evidentiary development, mainly to obtain a medical nexus opinion with supporting rationale. This was accomplished, and in August 2006 the VA Appeals Management Resource Center (AMC) issued a supplemental statement of the case (SSOC) which continued to deny the veteran's claims for entitlement to service connection for right and left lower extremity venous stasis with stasis dermatitis. The veteran's claims folder has been returned to the Board for further appellate proceedings. Issues not on appeal In an October 2005 letter, the veteran indicated that he no longer wished to pursue his appeal as to the issues of entitlement to increased disability ratings for service- connected residuals of frostbite of the right and left feet; peripheral neuropathy of the right and left lower extremity; and congestive heart failure and hypertension. Those issues, accordingly, are no longer on appeal and are not before the Board. See 38 C.F.R. § 20.204 (2006). FINDINGS OF FACT 1. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's right lower extremity venous stasis with stasis dermatitis and his military service. 2. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's service-connected disabilities and right lower extremity venous stasis with stasis dermatitis. 3. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's left lower extremity venous stasis with stasis dermatitis and his military service. 4. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's service-connected disabilities and left lower extremity venous stasis with stasis dermatitis. CONCLUSIONS OF LAW 1. Right lower extremity venous stasis with stasis dermatitis was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). 2. Right lower extremity venous stasis with stasis dermatitis is not proximately due to nor is the result of the veteran's service-connected disabilities. 38 C.F.R. §3.310 (2006). 3. Left lower extremity venous stasis with stasis dermatitis was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). 4. Left lower extremity venous stasis with stasis dermatitis is not proximately due to nor is the result of the veteran's service-connected disabilities. 38 C.F.R. §3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to service connection for bilateral lower extremity venous stasis with stasis dermatitis on both a direct and a secondary basis. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated December 15, 2005. Specifically, the December 2005 letter noted that to establish service connection for his claims on a direct basis, the veteran must submit competent medical evidence of a "relationship between your disability and an injury, disease or event in military service." The December 2005 letter also informed the veteran that certain diseases in former POWs were presumed to have been related to military service. An additional letter from the AMC [issued subsequent to the April 2006 remand] dated May 4, 2006 detailed the evidentiary requirements for secondary service connection claims, including evidence that "your service-connected disability either caused or aggravated your additional disability." Crucially, the veteran was informed of VA's duty to assist him in the development of his claims in the above-referenced December 2005 and May 2006 letters. Specifically, the veteran was advised in the December 2005 and May 2006 letters that VA would assist him with obtaining relevant records from any Federal agency, including records from the military, VA Medical Centers and the Social Security Administration. With respect to private treatment records, the December 2005 and May 2006 letters informed the veteran that VA would make reasonable efforts to obtain non-Federal evidence. Included with the December 2005 letter were copies of VA Form 21-4142, Authorization and Consent to Release Information, and the letter asked that the veteran complete such so that the RO could obtain private records on his behalf. The December 2005 and May 2006 letters specifically noted: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the May 2006 letter]. The veteran was also informed in the May 2006 letter that VA examination was being scheduled to make a decision on his claims, and he would be notified as to the date and time of said examination [such was accomplished in July 2006]. Finally, the Board notes that the May 2006 VCAA letter specifically requested of the veteran: "If you have any additional evidence in your possession, that pertains to your appeal, that you have not yet submitted, please send it to us" [Emphasis in original]. This request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. The veteran was not provided notice of the VCAA prior to the initial adjudication of his claims, which was by rating decision in May 2005. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the veteran was provided with VCAA notice through the December 2005 and May 2006 VCAA letters and his claims were readjudicated in the August 2006 SSOC, after he was provided with the opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. See Mayfield v. Nicholson, No. 02-1077 (December 21, 2006), slip opinion at 5-6 [A SSOC that complies with all applicable due process and notification requirements constitutes a readjudication decision]. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider his claims on the merits. The veteran has pointed to no prejudice resulting from the timing of the VCAA notice. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the above-referenced letter from the AMC dated May 4, 2006 which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the May 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. With respect to the veteran's service connection claims, element (1), veteran status, is not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the veteran's claimed right and left lower extremity disorders. In other words, any lack advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. The veteran's claims of entitlement to service connection were denied based on elements (2), existence of a disability, and (3), connection between the veteran's service and the claimed disabilities. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those crucial elements. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained reports of VA treatment of the veteran. Additionally, the veteran was afforded a VA examination in March 2005. The report of this examination reflects that the examiner reviewed the veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions. Additionally, pursuant to the Board's April 2006 remand instructions, the veteran's claims folder was referred for a VA nexus opinion in July 2006. The report indicates the examiner provided a nexus opinion with appropriate supporting rationale per the Board's instructions. The veteran's representative has argued that the agency of original jurisdiction returning the claims folder to the same examiner who rendered the March 2005 VA examination for an opinion "defeats the purpose of the intent of the remand as the veteran's treating physician was not afforded the opportunity to review the veteran's claims folder and provide supporting rationale for his statement that the veteran did have a cold injury years ago and certainly could have suffered a more proximal injury at that time." See the January 31, 2007 Informal Hearing Presentation. That the claims folder was returned to the same examiner who rendered the March 2005 VA nexus opinion is not detrimental to the veteran's appeal. The April 2006 Board remand instructed that a nexus opinion with supporting rationale be provided, and the AMC complied with this request. The Board did not require that a particular physician review the file and render an opinion. Moreover, it would appear that the physician who had recently examined the veteran would be in the best position to render the requested opinion. If the veteran wished for his own VA physician to provide additional supporting rationale for his prior statement, he was free to attempt to obtain this evidence on his own. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. More to the point, once the veteran received the August 2006 SSOC which referred to the negative VA nexus opinion, he was afforded the opportunity to seek the appropriate medical evidence to support his claims. Instead, he asserted he had no additional evidence to submit. See the December 21, 2006 Report of Contact. In short, the Board's remand instructions were complied with, and the Board believes that it has sufficient evidence in the record to adjudicate the claims. As the Court has stated: "VA's . . . 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2006). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Accordingly, the Board will proceed to a decision. The Board will address both issues together, as they involve the same disability and the veteran's contentions with respect to the two issues are identical. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection - POW presumptions Service connection on a presumptive basis is available for former POWs who developed hypertensive vascular disease or organic residuals of frostbite (if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite) which became manifest to a compensable degree at any time after service. No minimum period of internment is required. See 38 C.F.R. § 3.309(c) (2006). Secondary service connection Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2006); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Because the veteran's two claims involve the application of identical law to virtually identical facts, the Board will address then together. The Board will, however, separately address the claims for service connection on a direct and a secondary basis. Direct service connection The veteran contends that his bilateral lower extremity venous stasis with stasis dermatitis is a result of cold weather exposure in service. See the October 28, 2006 Statement of Accredited Representative in Appealed Case. As detailed above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), the March 2005 VA medical examination report included a diagnosis of lower extremity venous stasis with stasis dermatitis. Hickson element (1), current disability, has therefore been met for the claims. With respect to Hickson element (2), disease or injury in service, the veteran is currently service-connected for frostbite residuals to the bilateral feet. Accordingly, it has already been determined by VA that the veteran experienced a cold weather injury in service. There appears to be no evidence to the contrary. Therefore, Hickson element (2), in-service disease or injury, has been met as to the claims. With respect to crucial Hickson element (3), medical nexus, the question presented, i.e. the relationship, if any, between the veteran's claimed disability and service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board notes at this point that the statutory presumption for POWs found in 38 C.F.R. § 3.309(c) is not for application in the present case. As detailed above, the provision lists organic residuals of frostbite and hypertensive vascular disease as subject to presumptive service connection; the veteran has in fact been service-connected for such. See September 1997, September 1999 and December 1999 RO rating decisions. However, venous stasis with stasis dermatitis is not listed among the conditions subject to presumptive service connection; therefore, presumptive service connection based on the veteran's POW status is not warranted under 38 C.F.R. § 3.309(c). There is one competent medical opinion of record. The July 2006 VA examiner specifically found that "it is my medical opinion that it is less than likely that the above condition [venous stasis with stasis dermatitis] is secondary to the veteran's military service [or] captivity as a POW." The examiner pointed to the fact that the veteran first evidenced this problem 50 years after separation from service. The examiner emphasized the veteran's cold injury was superficial, with no evidence of damage to the larger venous system or the lower leg itself. The examiner pointed to earlier-dated VA examinations which failed to described any abnormalities of the lower legs, such as a VA examination report dated in April 1946 which failed to mention any edema. Finally, the examiner emphasized that venous stasis and stasis dermatitis are nor recognized complications of cold injury. The Board notes that the veteran submitted Internet articled indicating that stasis dermatitis "can be related to an injury to the feet or legs." See the October 28, 2006 Statement of Accredited Representative in Appealed Case. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin, supra; see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the Court has held that medical evidence is speculative, general or inconclusive in nature cannot support a claim. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, crucially, the treatise evidence which has been submitted by the veteran is general in nature and does not specifically relate to the facts and circumstances surrounding the veteran's particular case. The Internet articles are of no probative value in determining whether a medical nexus relationship exists. The same is the case with a July 2005 statement of the veteran's VA physician, who noted the veteran denied having a frostbite injury higher than his feet but "certainly could have suffered a more proximal injury at that time." This is not a definitive medical nexus opinion, but merely a speculative statement indicating the veteran could have suffered frostbite to his legs in service. As was indicated by the July 2006 VA examiner, the veteran's service medical records do not in fact denote any frostbite of the legs. To the extent that the veteran himself contends that a medical relationship exists between his military service and his bilateral lower extremity disorders, his opinion is entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2006) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered in support of the veteran's claims by him are not competent medical evidence and do not serve to establish a medical nexus. Accordingly, Hickson element (3) has not been met, and the veteran's claims fail on this basis. Secondary service connection The veteran alternatively contends that his current right and left lower extremity disorders are a result of his service- connected congestive heart failure or frostbite residuals of the lower extremity. See the July 2005 notice of disagreement and October 2005 substantive appeal. As noted above, in order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service- connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin, supra. With respect to Wallin element (1), medical evidence of a current disability, as noted above with the discussion of direct service connection, the March 2005 VA medical examination report noted a diagnosis of lower extremity venous stasis with stasis dermatitis. Accordingly, Wallin element (1) is satisfied for the claims. With respect to Wallin element (2), a service-connected disability, the veteran is currently service-connected for, inter alia, frostbite residuals of the bilateral feet; peripheral neuropathy of the lower extremities; and congestive heart failure with hypertension. Wallin element (2) is accordingly satisfied for the claims. With respect to crucial Wallin element (3), medical nexus, there are two medical opinions of record, both from the same examiner. In March 2005, the VA examiner noted the veteran's lower extremity venous stasis with stasis dermatitis was "not related to his cold injury or any other service- connected condition." The same examiner offered a second opinion in July 2006 that: "it is less likely than not that the [veteran's venous stasis with stasis dermatitis] is secondary to . . . any of his service-connected conditions." To support her opinions, the examiner noted that the veteran did not receive chronic tissue damage from his cold weather injury, and that there is no supporting medical evidence that venous stasis and stasis dermatitis are residuals of cold weather injury, peripheral neuropathy, heart disease or neurosis. There is no competent medical evidence to the contrary. As was described above, the veteran has been accorded ample opportunity to secure and present medical nexus evidence in his favor. He has not done so. See 38 U.S.C.A. § 5107(a), supra. To the extent that the veteran himself believes that there is a medical nexus between his current bilateral lower extremity problems and his service-connected disabilities, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as cause of a disability. See Espiritu, supra. The Board does not doubt the veteran's sincerity in pursuing these claims. However, his own opinions are outweighed by the competent medical evidence of record. See Voerth v. West, 13 Vet. App. 117, 119 (1999) [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus]. Accordingly, Wallin element (3) has not been met, and the veteran's claims fail on this basis alone. Conclusion In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for right and left lower extremity venous stasis with stasis dermatitis on both a direct and a secondary basis. The benefits sought on appeal are accordingly denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for right lower extremity venous stasis with stasis dermatitis is denied. Service connection for left lower extremity venous stasis with stasis dermatitis is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs