Citation Nr: 0006742 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 95-24 586A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for deep vein thrombosis. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The veteran served on active duty from January 1972 to October 1974, and from October 1976 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the RO which, among things, denied the veteran's claims of service connection for back pain and deep vein thrombosis. This case was remanded by the Board in December 1997. FINDINGS OF FACT 1. There is no competent medical evidence showing currently diagnosed low back disorder. 2. Deep vein thrombosis is not attributable to military service or to any event coincident therewith, such as a right ankle fracture or problems with a malignant melanoma. CONCLUSIONS OF LAW 1. The claim of service connection for a low back disability is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The veteran does not have deep vein thrombosis that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). When certain diseases are shown as chronic in service, or within a presumptive period so as to permit a finding of service connection (when applicable), subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). Regulations also provide that service connection may be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus, or link, between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Low Back Disability The veteran asserts that he injured his low back while on active duty in September 1974, and that he has a current low back disability which is due to this in-service injury. Available service medical records show no spine or musculoskeletal disorders on reenlistment examination in September 1976, and no such disorders were reported or found on later examinations in November 1976 and September 1977. At the time of these examinations, the veteran specifically checked a box labeled "NO" for any history of recurrent back pain. However, in February 1978, the veteran received treatment for complaints of low back pain of then-recent onset. The diagnosis was lumbosacral strain. At that time, the veteran denied any prior history of back trauma, and he again denied any history of previous back pain. No further treatment is thereafter shown for more than 15 years. Reports of physical examinations and medical histories, dated in November 1978, August 1980, November 1981, August 1984, October 1985, September 1986, and September 1989, are all negative for complaints, findings, medical history, or diagnosis regarding the low back. The veteran's physical examination for separation from service in March 1994 is silent as to any low back complaint or disorder. At that time, the veteran again specifically denied having had recurrent low back pain. However, in August 1994, the veteran was treated for a low back strain. The examiner noted a question of muscle spasm. The post-service evidence shows no low back disorder or diagnosis. On VA examination in December 1994, several weeks after his separation from military service, x-ray studies of the lumbosacral spine were negative for any significant pathology. The veteran reported a history of an in-service low back injury in 1974, with subsequent low back pain with activity. On examination, however, no positive findings were observed. The diagnosis was residual low back injury, without x-ray evidence of disease. The veteran was examined for VA in July 1998. Once again no positive findings were observed, and it was determined that there was no objective evidence of back pathology or disease. X-rays were again normal. No limitation of motion of the lumbosacral spine or muscle spasm was found. The examiner opined that the veteran had no disability of the low back attributable to his prior military service. While the veteran may indeed experience low back pain, no competent medical evidence has been presented of any current low back disorder. Pain alone is not enough to show current disability. Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). The veteran asserts that he injured his back in service in September 1974 (service medical records show no history of any treatment prior to February 1978, with no subsequent treatment until August 1994). Nevertheless, in the absence of evidence of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Consequently, the claim of service connection is not well grounded. Caluza, supra. The veteran's assertions alone are not sufficient to establish his claim as well grounded. Id.; Savage v. Gober, 10 Vet. App. 488, at 498 (1997). Deep Vein Thrombosis The veteran asserts that deep vein thrombosis was first shown so soon after his separation from service--within a little more than 30 days--so as to warrant a grant of service connection. He asserts that his deep vein thrombosis, first diagnosed on in November 1994 was first symptomatic, albeit undiagnosed, while in service. He claims that he had symptomatology in service to which the post-service deep vein thrombosis can be traced. He also asserts that in-service right ankle and cancer surgeries may have resulted in lower extremity blood clots. In his May 1995 notice of disagreement (NOD), the veteran indicated that he first noticed left leg pain and swelling on October 30, 1994, following his separation from military service. He claims that it was later discovered that two or three major veins in his left leg were found to have blood clots. Service medical records are silent for any diagnosis of deep vein thrombosis. As asserted by the veteran, service medical records show treatment in January 1979 for a complaint that his left foot felt as if it were "asleep" for the previous 4 days. The veteran gave a history that this had occurred on and off since December 25, 1978. He could not remember the number of episodes. No diagnosis was given, but the examiner's initial impression was to rule out Raynaud's disease affecting the left foot. No further similar complaints were made throughout the veteran's remaining years in service, including on physical examinations in August 1980, November 1981, August 1984, October 1985, September 1986, September 1989, and on separation examination in March 1994. Service medical records show that the veteran had melanomas removed from his back in June 1994. No subsequent complications were shown, including on separation examination in March 1994. The post-service evidence shows hospital treatment on November 2, 1994, for complaints of left calf pain of 5 days' duration. He was diagnosed with left calf deep vein thrombosis, below the popliteal. At that time, the veteran reported a then-recent onset of left calf pain and some swelling after standing on a ladder all day. Past medical history included a left medial meniscus tear on the left side in 1986, as well as the removal of malignant melanomas several months prior to his separation from military service. In March 1995, the veteran was again seen for a 5-day history of right calf pain and swelling. The diagnosis was deep venous thrombosis of the right lower extremity. Notation was made that a computerized tomography (CT) scan of the abdomen in November 1994 had been unremarkable. Private treatment records of J. W. Anagnost, M.D., show treatment for deep vein thrombosis from November 2, 1994. Significantly, in an August 1995 notation, Dr. Anagnost notes that there is no relationship between the veteran's prior cancer surgery and his deep vein thrombosis. However, the note expresses concern about the "possibility" of occult or hidden cancer somewhere else in the body, which could make his blood thicken, and presumably clot as well. In another August 1995 medical statement, Dr. Anagnost again opined that there was no connection between the veteran's prior cancer surgery in 1994 and the development of his deep vein thrombosis 8 months after the surgery. He notes, however, that there is a "possibility that the blood clots may be due to cancer." However, CT scans and chest x-rays were not then available so as to rule out any occult cancer. In subsequent notes, Dr. Anagnost indicates that he was advised that the veteran's prior chest x-rays and CT scans, performed in November 1994, had been negative. The evidence of record indicates that no occult cancer was ever found. A July 1998 VA examination (consultation) report includes a clinical impression of deep vein thrombosis. Additional pertinent information was not obtained at that time. The veteran was re-examined in October 1998, at which time a detailed medical history was obtained. Contrary to a subsequently made assertion of the veteran's representative, the examiner noted that a medical history was obtained both from the veteran and the records made available to the examiner in conjunction with his evaluation. The examiner noted that prior serum assays for protein deficiencies, which would lead to a hyper-coagulable condition, had been interpreted as negative, and that prior CT scans of the abdomen and chest x-rays had also been interpreted as negative for any intra-abdominal malignant processes. There were no physical findings and no prodromas that would suggest metastatic melanoma. The examiner opined that the veteran's military occupation increased his risk for thrombophlebitis, and that in-service right ankle trauma was an increased risk factor in the development of right venous thrombosis. However, the examining physician was of the opinion that, given that the thrombosis did not present itself until after the veteran's separation from service, there was a "low probability" of a relationship between the deep vein thrombosis disease process and the veteran's military service. The examiner was also of the opinion that there was low to no probability that the veteran's deep vein thrombosis disease was caused by the melanoma excised from his back. Service connection is not warranted for deep vein thrombosis because the weight of the evidence is against the claim. 38 C.F.R. § 3.303(d) (1999). The medical opinion evidence is particularly persuasive. As noted above, deep vein thrombosis was not shown until after military service. While this fact does not preclude a grant of service connection, it appears to have had some significance in the opinion provided by the October 1998 examiner who indicated that it was this fact that led him to conclude that there was a low probability of a relationship between the disease process and active military service. Although the veteran appears to primarily rely upon the August 1995 statement of his treating physician to support his claim, the August 1995 statement indicates no more than a concern that, should the veteran have occult cancer, then, as a general rule, this could cause thickening of his blood, and perhaps clotting as well. However no such cancer process was ever found. Accordingly, this statement is of little probative value when evaluating the specific facts before the Board. While certain events in service, such as the requirements of the veteran's military occupation, or the identified right ankle difficulties may have constituted risk factors for the development of deep vein thrombosis, it is important to note that the examiner who specifically identified such problems as risk factors nevertheless concluded that the medical probabilities for a relationship to military service were low. Consequently, given this medical opinion, which was based on the specifics of this veteran's case, and which stands uncontradicted in the record, the Board finds that the greater weight of the evidence is against the veteran's claim. 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 the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board finds that the preponderance of the evidence against the claim, as set forth above, and, therefore, reasonable doubt is not for application. The claim of service connection for deep vein thrombosis is denied. ORDER Service connection for a low back disorder is denied. Service connection for deep vein thrombosis is denied. MARK F. HALSEY Member, Board of Veterans' Appeals