Citation Nr: 18132269
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-44 845
DATE:	September 6, 2018
ORDER
Entitlement to service connection for a deep vein thrombosis (DVT), claimed as blood clots in the left leg is denied.
FINDING OF FACT
The preponderance of the evidence shows that the Veteran was not diagnosed with a DVT at any time during the pendency of the appeal.
CONCLUSION OF LAW
The criteria for service connection for a DVT have not been met.  38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 2004 to February 2005, October 2005 to June 2006, and July 2006 to July 2010.
In October 2015, the Veteran and his spouse testified at a RO hearing before a Decision Review Officer.  A transcript of the hearing is associated with the record.  
In May 2016, June 2017, and December 2017 the Board, among other things, remanded this issue for additional development and it now returns for further appellate review.
Additional evidence has been added to the record since the June 2018 supplemental statement of the case.  However, the Board finds that it need not delay adjudication of this appeal by requesting a waiver of agency of original jurisdiction review or remanding for such review because it is not additional pertinent evidence.  See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued).  
Entitlement to Service Connection for DVT
The Veteran contends he is entitled to service connection for a DVT as due to involvement in a motor vehicle accident (MVA) while on active service because he developed a DVT in his left leg while on active duty his current leg pain is the same pain he had when he had a DVT.  
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). 
Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  The requirement of a current disability is satisfied if the veteran has a disability at the time she files her service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  However, when the record contains a recent diagnosis of disability prior to the veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).
In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
As noted above, the Veteran contends he is entitled to service connection for a DVT as due to involvement in a MVA while on active service.  Tellingly, the Veteran’s service treatment records (STRs) show he developed a right popliteal DVT which was resolved at the time of the note, and a left peritoneal DVT that resolved shortly after, as noted by a January 2007 hospital record.  Moreover, the Veteran’s May 2010 separation examination was silent for any diagnosis referable to a DVT.  
Additionally, and more importantly, the post-service record is negative for a diagnosis of a DVT.  See McClain, supra.  In this regard, while a March 2017 VA treatment record shows the Veteran being seen with complaints of leg pain, the treating physician opined that there was no concern for DVT after a physical examination, indicating the pain was most likely radicular pain.  Moreover, at the May 2016 and July 2017 VA examinations which was held for the express purpose of diagnosing a DVT none was diagnosed.  Furthermore, the Board finds these VA examiners opinions that the Veteran does not have DVT despite the diagnoses found while on active duty the most probative of evidence because they were provided after a review of the record on appeal and/or an examination of the Veteran and they are supported by citation to evidence found in the record.  See Owens, supra.  The Board also finds these opinions the most probative of evidence because they are not contradicted by any other medical evidence of record.  See Colvin, supra.  Therefore, the Board finds that the record reflects that the Veteran does not have a current diagnosis of a DVT at any point pertinent to the appeal.  
In this regard, the Board has considered the Veteran’s assertions that he has a DVT.  Moreover, as a layperson, he is competent to report matters within his personal knowledge, such as treatments and diagnoses he has received, and symptoms he experiences.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, a diagnosis of a DVT is not the type of condition that may be rendered by a lay person as medical testing and expertise is needed to properly assess and diagnose such a disorder.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Thus, the Board finds that Veteran is not competent to diagnose a DVT, and his opinion is given no probative weight.
Lastly, the Board finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), because in the current appeal the leg pain does not result in functional impairment that affects earning capacity.  See VA examinations dated in May 2016 and July 2017.
Therefore, the Board finds that service connection for a DVT is not warranted as the Veteran does not have a current diagnosis of such during the pendency of his claim.  Furthermore, the record does not contain a recent diagnosis of a DVT prior to the Veteran’s filing of a claim. See McClain, supra; Romanowsky, supra.  Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection.  See Brammer, supra.
In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a DVT.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
 
NEIL T. WERNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jonathan M. Estes, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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