Citation Nr: 18158067 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-58 365A DATE: December 14, 2018 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for peripheral artery disease (PAD) is granted. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as secondary to service-connected coronary artery disease (CAD), is remanded. FINDINGS OF FACT 1. The Veteran has not been diagnosed with sleep apnea. 2. The evidence is at least in equipoise as to whether the Veteran’s PAD is causally related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for PAD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to November 1971. His awards include the Vietnam Service Medal with three Bronze Service Stars. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a June 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. §3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain diseases, including CAD as a form of ischemic heart disease, enumerated in 38 C.F.R. § 3.309(e), may be established as presumptively due to herbicide exposure during service in the Republic of Vietnam from January 9, 1962, to May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Once it is established that a claimant has been exposed to herbicides, a listed disease will be presumed service-connected due to herbicide exposure during service if it manifests to a compensable degree at any time, even though there was no record of such disease during service. 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e) Note 2. The presumptive provisions related to herbicide exposure are not intended to limit service connection on a direct basis when the evidence establishes a nexus between a current disability and herbicide exposure in service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert V. Derwinski, 1 Vet. App. 49 (1991). 1. Entitlement to service connection for sleep apnea The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also Brammer v. Derwinski, 3 Vet. App 223 (1992). In this case there is no diagnosis of sleep apnea. Further, there is no assertion or other evidence the Veteran has any sleep difficulty related to obstructed breathing. As the preponderance of the evidence shows there is not a disability with respect to the claim now before the Board, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim of entitlement to service connection for sleep apnea must be denied. See Gilbert, supra; see also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for peripheral artery disease (PAD), including as secondary to CAD The Veteran served in Vietnam. His exposure to herbicide agents is conceded. He was diagnosed with PAD in 2004. He claims the condition is causally related to his service, as caused or aggravated by his service-connected CAD. Peripheral manifestations of heart and artery conditions, such as PAD, are not included in the diseases presumed related to herbicide exposure. Service connection is not warranted on a presumptive basis. 38 C.F.R. § 3.309(e) Note 2. However, under the holding in Combee, service connection may be established on a direct basis without use of the presumptions. Here, a VA artery and vein conditions examination was provided in April 2015. The VA examiner confirmed the Veteran’s diagnosis of PAD. He opined that the condition was not causally related to his service-connected CAD. He stated PAD “is due to atherosclerosis which is not presumptive for agent orange.” A September 2017 supplemental VA opinion discussed the relationship between CAD and PAD and stated, “[b]oth condition[s] are generally caused by the same etiology but CAD does not cause PAD.” The Veteran provided a December 2016 medical opinion from Dr. S. in support of his claim. Dr. S. observed that the Veteran is service-connected for CAD because of exposure to herbicides in Vietnam. He also described CAD as a condition wherein there is a buildup of plaque in the arteries of the heart and explained that narrowing of the arteries due to atherosclerosis may lead to PAD. The examiner noted the similarities in the progress of both diseases. He cited medical literature indicating an increased prevalence of vascular disease in veterans who were exposed to herbicides. He opined “it is at least as likely as not that the [V]eteran’s peripheral arterial/vascular disease shares a common etiology with his service connected coronary artery disease, which would be exposure to Agent Orange.” In sum, the medical evidence of record is in agreement that PAD is caused by atherosclerosis or narrowing of the arteries in the Veteran’s lower extremities. Although PAD is not specifically listed as a presumptive service connection disease for Veterans exposed to herbicides, the presumptive conditions do include atherosclerotic cardiovascular disease and both the September 2017 VA examiner and Dr. S. indicate the Veteran’s service-connected CAD and PAD have a common etiology, i.e. atherosclerosis. Dr. S. opines the Veteran’s PAD is at least as likely as not due to herbicide exposure. Resolving any reasonable benefit of the doubt in favor of the Veteran, the Board finds that based on the specific facts of this case, the evidence is at least in equipoise as to the issue of whether the Veteran’s PAD is related to his military service. Accordingly, entitlement to service connection for PAD is warranted. See Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as secondary to service-connected coronary artery disease (CAD), is remanded. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Allen explained that aggravation in this context means “any increase in disability,” as “distinguished from the more specific form of the term ‘aggravation’ used in 38 U.S.C. § 1153, . . . which authorizes compensation for an increase in disability resulting from aggravation during service of an injury or disease which existed before service.” Id. at 445, 448-49. Thus, where secondary aggravation is found, a veteran “shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Id. at 448. In contrast, whether a non-service-connected condition has “permanently worsened” is germane to the inquiry undertaken when addressing whether a preexisting condition has been aggravated by service. 38 U.S.C. § 1153; Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002) (holding that “evidence of temporary flare-ups . . . alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened.”); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (holding that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.”); see also 38 C.F.R. § 3.306(a). In this case, the Veteran asserts his COPD is secondarily related to his service-connected CAD, however the medical evidence of record is inadequate to determine the claim. The Veteran submitted a December 2016 medical opinion from Dr. S. in support of this contention. This opinion is general in nature and does not specifically explain how the Veteran’s CAD caused or aggravated his COPD. Moreover, an April 2015 VA respiratory conditions examination and a September 2015 VA medical opinion do not address the question of aggravation. Finally, a second September 2017 VA medical opinion finds there is no evidence of “permanent aggravation of COPD in this [V]eteran.” As noted above, permanent aggravation is not required to establish entitlement to secondary service connection under 38 C.F.R. § 3.310. Thus, the current medical opinions are not adequate to determine the claim. A new VA examination is necessary. See McLendon, supra; see also Stefl, supra. The matter is REMANDED for the following action: Schedule the Veteran for an examination regarding his service connection claim for COPD. The selected examiner must provide an opinion addressing whether his COPD is at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, his service-connected CAD. The opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner must quantify the degree of additional disability resulting from aggravation by the service-connected CAD. The examination report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel