Citation Nr: 0006673 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 97-33 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE 1. Entitlement to service connection for heart disease as secondary to service-connected residuals of multiple shell fragment wounds of the right lower extremity. 2. Entitlement to service connection for peripheral vascular disease as secondary to service-connected residuals of multiple shell fragment wounds of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty from a September 1967 to July 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the North Little Rock, Arkansas, Department of Veterans (VA), Regional Office (RO), which denied entitlement to increased ratings for service-connected shell fragment wound (SFW) residuals of the left and right lower extremities, left popliteal scar, scars of the left upper extremity, as well as scars of the right wrist, thumb, thighs and left forearm. Entitlement to service connection for heart disease and peripheral vascular disease secondary to service-connected residuals of multiple SFWs of the right lower extremity was also denied. In October 1997, the veteran filed a notice of disagreement with the rating decision. By VA letter dated November 10, 1997, the veteran was requested to be more specific with regard to the issue or issues that he disagreed with as multiple claims were decided in the rating decision. Later that month, the veteran submitted a statement wherein he disagreed with the denials of his secondary service connection claims. He was thereafter issued a statement of the case in December 1997. The RO received his substantive appeal later that month. In January 1998, the veteran presented testimony at a personal hearing held by the Hearing Officer (HO) at the local VARO. The HO confirmed and continued the denials of the veteran's secondary service connection claims in a February 1998 supplemental statement of the case. The veteran thereafter presented testimony at a personal hearing held by the undersigned Member of the Board at the local VARO in May 1999. A transcript of that hearing has been associated with the record on appeal. In October 1999, the Board determined that it was necessary to obtain an opinion from a medical expert with the Veterans Health Administration (VHA). The opinion was rendered in November 1999, and the veteran's representative was provided a copy of that opinion and given the opportunity to respond. As noted above, the veteran did not appeal any of the issues concerning his service-connected lower left extremity. Notwithstanding, the Board observes that the November 1999 VHA opinion shows that the veteran manifests peripheral vascular disease of both lower extremities due to his service-connected injuries. Therefore, a claim for service connection for peripheral vascular disease of the left lower extremity, to the extent that such a claim does not violate the amputation rule under 38 C.F.R. § 4.86 (1999), must be inferred from the medical evidence of record. Since this issue has not been properly developed for appellate consideration by the Board, however, and is not inextricably intertwined with the issues on appeal, it is hereby referred to the RO for appropriate action. See Kellar v. Brown, 6 Vet. App. 157 (1994). FINDINGS OF FACT 1. Service connection is in effect for residuals of multiple shell SFWs of the right lower extremity, rated 20 percent disabling. 2. The preponderance of the evidence establishes that heart disease is not related to the veteran's service-connected residuals of multiple SFWs of the right lower extremity. 3. Competent evidence that peripheral vascular disease is proximately due to or the result of the service connected residuals of multiple SFWs of the right lower extremity has been presented. CONCLUSIONS OF LAW 1. Heart disease is not shown to be proximately due to or the result of the veteran's service-connected residuals of multiple SFWs of the right lower extremity. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1999). 2. Service connection for peripheral vascular disease as secondary to service-connected residuals of multiple SFWs of the right lower extremity is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS "[A] person who submits a claim for benefits under a law administered by the Secretary [of Veterans Affairs] shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, claims which are plausible. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S.Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under section 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). In that decision, the Court addressed and rejected the appellant's newly raised argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA has taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well-grounded claim, the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. To establish a well-grounded claim for service connection for a disorder on a secondary basis, the veteran must present medical evidence to render plausible a connection or relationship between the service-connected disorder and the new disorder. Secondary service connection is warranted when a disability is proximately due to or the result of a service-connected disease or injury, 38 C.F.R. § 3.310(a) (1999), or, to the extent of any increase, there is aggravation, i.e., additional disability, of a nonservice- connected disability due to a service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). Background Service connection is in effect for residuals of multiple SFW's of the right lower extremity, rated 20 percent disabling. There is no evidence of cardiovascular or peripheral vascular disease during service or for many years later, and the veteran does not contend otherwise. In written correspondence dated in March 1997, Jayton Lim, M.D. reported, in pertinent part, that the veteran had been seen on several occasions in the prior several months with complaints of leg pain, foot pain, back pain and muscle pain. Sitting for periods of time seemed to cause an increase in discomfort. He had superficial vein pain, tenderness over the veins and phlebitis, which seemed to be a constant problem when he stood for long periods. The veteran also had several scars and old wounds that were very tender, with only some relief when taking Aspirin and Ibuprofen. An April 1997 statement of Bruce K. Berkheimer, DPM, indicated that the veteran needed to wear 'Rocky 911' boots while at work in order to eliminate foot pain. Dr. Berkheimer noted that the veteran suffered from structural and mechanical deficiencies of both feet, resulting in much foot pain and arthritis. He prescribed the 'Rocky 911' series of boots for the veteran to eliminate the complaint. These boots seemed to not only alleviate the veteran's foot pain, but were also adjustable to accommodate for his lower extremity edema that resulted from a war injury to the left lower extremity. A May 1997 statement of John C. Henderson, M.D., indicated that the doctor had been following the veteran over the prior 8 years for hypertension, arteriosclerotic heart disease with previous myocardial infarction and hypercholesterolemia. The veteran had complained of increasing problems with anginal discomfort. A February 1997 repeat coronary arteriogram revealed multiple high-grade distal lesions in the right coronary artery system. Dr. Henderson felt that the veteran was disabled due to a combination of atherosclerotic heart disease with anginal syndrome, venous and arterial insufficiency of the lower extremities secondary to old war injuries from Vietnam. He also felt that job-related stress is a significant factor in his increasing problems with angina. The veteran was thereafter afforded VA examination by Robert Clark, M.D., in June 1997. On physical examination, it was noted that the veteran was alert and cooperative. He ambulated without any particular difficulty. The chest was clear. The heart had a sinus rhythm; audible murmurs were not noted. On both buttocks, there were linear well healed scars, measuring from 2 to 4 centimeters in length, four being present on the left side and two, at least, present on the right side. There were also well healed surgical scars on the very upper aspect of the posterior thigh, just at the level of the gluteal fold. These were well healed, without any loss of substance and without any functional disability. The veteran did have some dilated superficial veins in the vicinity of this popliteal scar with an area that was slightly tender to pressure. The mildly dilated veins measured no more than 1.8 centimeter in diameter, and they were somewhat tortuous. He did not have any peripheral edema. There were some very small varicosities located in both pretibial areas. There was no ulceration noted. The veteran did have a firm nodule that was palpable in the medial aspect of the middle third of the right thigh, noted to represent a retained foreign body. This area was tender to any direct pressure. The femoral pulses were normal. The veteran had excellent posterior tibial pulses on both sides. He also had a weak dorsalis pedis pulse on the left and an excellent dorsalis pedis pulse on the right. The diagnostic impressions were: (1) shrapnel wounds, multiple, muscle group 17, left, with slight impairment; (2) residuals of multiple shrapnel wounds to the right lower extremity; (3) residuals of shrapnel wounds to the left lower extremity; (4) postoperative status, arteriovenous fistula of the left lower extremity; (5) scars from gun shot wound of left upper arm; small scars of the right wrist and thumb area with no functional disability; AND (6) tender nodule, probably retained metallic foreign body of right medial mid-thigh (x- rays confirmed the presence of a small metallic foreign body in this area in the past and were not repeated at that time). Dr. Clark commented that the veteran's claim of organic heart disease being associated with his service-connected injuries was unlikely. The veteran had high risk factors, such as smoking, obesity, hypercholesterolemia, and a tendency toward diabetes as the more likely etiologic cause. As far as peripheral vascular disease was concerned, the examiner noted that the arteriovenous fistula that was traumatic in origin and suffered as a result of the veteran's shrapnel wounds in the left leg could have had an adverse effect on the left lower extremity. However, the examiner noted that, at the time of the examination of the veteran, the arterial flow of the lower extremities was quite adequate and normal. The examiner further noted that it is unlikely that any venous insufficiency of the right leg would be related to these injuries. In November 1997, the veteran submitted copies of a January and February 1983 work-ups completed by Stephen D. Holt, MD, which show, in pertinent part, that the veteran had a history of recurrent thrombophlebitis secondary to his venous insufficiency from prior trauma. He handled this pretty well, with the aid of Aspirin and support hose. In December 1997, the veteran submitted copies of treatment records and statements developed by his former employer, The Arkansas State Police. These records reflect that the veteran applied for retirement in September 1997. The veteran was afforded a comprehensive medical examination later that month which revealed, in pertinent part, that he had decreased pulses of the left foot, as well as varicosities. The examiner commented that the veteran had multiple medical problems, including heart disease, diabetes and problems with his feet and legs. Based on the foregoing, the veteran was granted State Police Retirement disability benefits from December 1, 1997. In January 1998, the veteran presented testimony at a personal hearing held by the HO at the local VARO. Regarding his heart disease, the veteran stated that he believed that it is directly related to his arterial and venous insufficiency of the lower extremities. He noted that his circulatory problems have put added pressure on his heart. He maintained that he had no previous heart problems before his myocardial infarction in 1991; however, he believed that he had a heart attack while on the operating table in 1968. The veteran further maintained that he had angina, particularly at rest. In reference to his peripheral vascular disease, the veteran stated that his legs hurt all of the time; he noted that he had edema and swelling whenever he tried to work. He indicated that his legs were affected by the cold. He asserted that he had venous and arterial damage, including loss of arterial flow at the top of his left leg, which causes four of his toes to be numb all of the time. In May 1999, the veteran presented testimony at a personal hearing held by the undersigned Member of the Board at the local VARO. The veteran noted that his private physician, Dr. Henderson, a cardiologist, had indicated to him that the problems with his heart and vascular problems with his lower extremities were greatly associated with his multiple SFWs. He further noted that Dr. Henderson, his private physician of may years, is far more capable of determining the causative factors of his disabilities, than the VA doctors who make their decision based on a 15 to 20 minute examination. In view of the conflicting medical opinions presented, and pursuant to 38 C.F.R. § 20.901 (1999), the Board requested a medical opinion from the Chief Medical Director, VHA, to address the following questions to a reasonable degree of medical certainty: Whether the veteran's heart disease and/or peripheral vascular disease is proximately due to or aggravated by his service-connected residuals of multiple SFWs of the right lower extremity? In November 1999, the opinion of the Chief of the Cardiology Section at VA Medical Center, Loma Linda, California, was forwarded to the Board and was made part of the record on appeal. Later that month, the opinion was made available to the veteran's representative for review and comments prior to the preparation of this decision in accordance with the Board's notice and comment procedures. 38 C.F.R. § 20.903 (1999); see also Thurber v. Brown, 5 Vet. App. 119 (1993) and Chairman's Memorandum No. 01-93-12 (May 28, 1993). The veteran's representative presented no further evidence or argument. The VA cardiovascular expert noted in the aforementioned opinion, that he had reviewed the documents pertaining to the veteran's claim. After reviewing all of the evidence of record and thoroughly discussing the veteran's medical history relative to his disorders the specialist stated, in pertinent part, the following opinion: I agree completely with Dr. Clark's conclusion that it is unlikely that there is any relationship between this patient's war injuries and the development of coronary artery disease. This patient had multiple risk factors for coronary disease, including male sex, a very strong family history of early coronary artery disease, ongoing cigarette smoking, hypertension, hypercholesterolemia, and possibly diabetes mellitus. These risk factors are all well established for contributing to the development of coronary artery disease and myocardial infarction, and, in and of themselves, are more than sufficient to account for this patient's coronary disease. I know of no relationship to the development of coronary artery disease with traumatic peripheral vascular injury. Careful reading of Dr. Henderson's May 1997 letter also supports this view. He says that his patient is disabled because of coronary artery disease and then he goes on to state that he also had peripheral vascular disease secondary to the his wartime injuries. Dr. Henderson does not actually say that his coronary artery disease is secondary to his wartime injuries. As to the patient's claim that his peripheral vascular disease arose from his service connected injuries, there is perhaps some substance to this claim. Dr. Clark states that there was some one- centimeter diameter varicosities in the left popliteal area at the time of his examination. I consider it likely that the original injury and his subsequent surgical procedures could have produced a moderate amount venous insufficiency and superficial varicosities in the extremity. Although no swelling was present at the time of Dr. Clark's examination, it is likely that at other times the patient does have significant swelling in his legs. It is also likely that he experiences a moderate amount of discomfort in his legs related to the previous injuries. He apparently does not have arterial insufficiency, as the examination by Dr. Clark demonstrated clinically normal pulses throughout both legs except for a diminished left dorsalis pedis pulse. In conclusion, this patient suffered a significant injury during the Vietnam War, required multiple surgeries subsequently, and was returned to active duty. He subsequently had ongoing problems with pain and swelling in his legs which probably relate to his original injury. He also has established coronary artery disease by cardiac catheterization, and certainly did have angina and a non-Q wave myocardial infarction (NQMI) in 1991. His coronary artery disease is not related in any way to his service connected injuries. Analyses As a preliminary matter, the Board notes that the veteran has submitted evidence sufficient as to justify a belief by a fair and impartial individual that his claims for secondary service connection for heart disease and peripheral vascular disease are well grounded. Indeed, the Board notes that the May 1997 statement of Dr. Henderson, establishing a medical nexus between the veteran's current heart and peripheral vascular disorders, and his multiple SFWs of in-service origin, must be accepted as true and is not subject to weighing for purposes of a well groundedness determination. See King, supra. However, in view of the wide diversity of medical opinions indicated above, the Board sought an advisory opinion. The veteran and his representative were informed of the medical expert's findings and given an opportunity to respond; they failed to do so. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999); and Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Secondary Service Connection for Heart Disease As noted, above, the conflicting medical opinions as to the pathological relationship between the veteran's heart disease and his service-connected multiple SFWs prompted the Board to seek an advisory opinion. The reviewing VHA cardiovascular expert concluded that it is unlikely that there is any relationship between the veteran's war injuries and the development of coronary artery disease. It is indicated that the veteran had multiple risk factors for coronary disease, including male sex, a very strong family history of early coronary artery disease, ongoing cigarette smoking, hypertension, hypercholesterolemia, and possibly diabetes mellitus. These risk factors are all well established for contributing to the development of coronary artery disease and myocardial infarction, and, in and of themselves, are more than sufficient to account for the veteran's coronary disease. Notwithstanding, the veteran argues that because his treating cardiologist, Dr. Henderson, has stated that there is a pathological relationship, the Secretary is required to do the same. It is noted, however, that this assertion misconceives the role of the Board. The Board has a duty to assess the credibility and weight to be given to evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Court has stated that while it is true that the [Board] is not free to ignore the opinion of the treating physician, the [Board] is certainly free to discount the credibility of the physician's statement." Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). In this regard, the Court has further stated that the presumption of credibility that attaches to the evidence for the consideration of well groundedness does not continue in the analysis of the ultimate credibility or weight to be accorded the evidence. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Moreover, greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In the instant case, the Board notes that the VHA opinion is a detailed reasoned response based on a review and analysis of the entire record, and the reviewing cardiovascular expert referred to specific events and medical history to support his conclusions. Dr. Henderson's opinion, on the other hand, did not refer to the clinical foundation relied upon in forming the opinion. Moreover, the Board finds that the omission of the fact that the veteran had high risk factors for developing organic heart disease also weighs heavily against probative value of this private medical opinion. In light of the foregoing, the Board finds that the preponderance of the evidence is against a holding that the veteran's claimed organic heart disease and service-connected gunshot wound residuals of the right lower extremity are etiologically or causally associated. Therefore, his secondary service connection claim for heart disease is denied. B. Secondary Service Connection for Peripheral Vascular Disease As to the veteran's claim for secondary service connection for peripheral vascular disease, however, the Board finds that the evidence of record is in relative equipoise. The November 1999 VHA cardiovascular expert considered it likely that the veteran's original in-service injury and subsequent surgical procedure have produced a moderate amount of venous insufficiency and superficial varicosities in the left lower extremity. Although no swelling was present at the time of Dr. Clark's examination, the VHA expert felt that it is likely that at other times the veteran does have significant swelling in his legs. The expert also noted that the veteran likely experiences a moderate amount of discomfort in his legs related to the previous injuries. In view of the foregoing, and according any remaining doubt in favor of the veteran, the Board finds that the elements necessary to establish secondary service connection for peripheral vascular disease are met. Therefore, according all remaining doubt in favor of the veteran, service connection for peripheral vascular disease as secondary to service- connected residuals of multiple shell fragment wounds of the right lower extremity is warranted. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310 (1999). ORDER The claim for service connection for heart disease as secondary to service-connected residuals of multiple SFW's of the right lower extremity is denied. Service connection for peripheral vascular disease as secondary to service-connected residuals of multiple SFW's of the right lower extremity is granted. A. BRYANT Member, Board of Veterans' Appeals