Citation Nr: 20022481 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-39 861 DATE: April 1, 2020 ORDER Service connection for bilateral carotid artery stenosis on a direct basis is denied. REMANDED Service connection for bilateral carotid artery stenosis, as secondary to the service-connected ischemic heart disease, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral carotid artery stenosis is related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral carotid artery stenosis on a direct basis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Coast Guard from October 1964 to October 1968 and from November 1969 to November 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for carotid artery stenosis. Service Connection For Bilateral Carotid Artery Stenosis On A Direct Basis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection can also be established through application of a statutory presumption for chronic diseases, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis) & Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b) (West 2014); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The pertinent evidence is addressed in detail below. The Veteran contends that his bilateral carotid artery stenosis should be service-connected on a direct basis. As an initial matter, the Veteran has been diagnosed with carotid artery stenosis in 2014. The question for the Board is, therefore, whether the Veteran’s bilateral carotid artery stenosis was shown in service, to a compensable degree within one year of separation therefrom, or to have exhibited continuity of symptoms since service. Here, no bilateral carotid artery stenosis was “noted” or identified during service or within one year of separation. Additionally, there is nothing to suggest that there were characteristic manifestations sufficient to identify bilateral carotid artery stenosis during service or within one year of separation. 38 C.F.R. § 3.303(b). Importantly, service treatment records do not confirm treatment for, or findings of bilateral carotid stenosis of the arteries. Further, as the Veteran served in the Republic of Vietnam in the early 1970s, his in service exposure to herbicide agents is presumed, and the Board will consider whether his currently diagnosed bilateral carotid artery stenosis is associated with his active duty, to include his presumed in-service Agent Orange exposure. Initally, and in this regard, the Board acknowledges that a connection between the Veteran’s bilateral carotid artery stenosis and his exposure to herbicides in service cannot be presumed because carotid artery stenosis is not on the list of presumptive disabilities due to herbicide exposure. However, direct service connection on this basis may still be considered. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Post service medical records indicate that the Veteran was afforded a VA examination for his current bilateral carotid artery stenosis disability in December 2019. The Board acknowledges that the VA examiner adequately addressed the remand directives in the June 2019 Board decision. The VA examiner reported that at the time of the examination the Veteran was asymptotic from the carotid stenosis and had no changes since February 2016. Additionally, the examiner noted that the Veteran’s main concern was pulmonary. Further, the examiner stated that the Veteran has only experience one episode of chest pain in the last two years, which was related to effusion. Significantly, the examiner asserted that the Veteran is completely asymptomatic from a cardiac standpoint, even though his chest CT does show some coronary arteriosclerosis. The examiner noted that this is a radiological observation and does not translate into ischemia of the heart as it is perfectly reasonable to have arteriosclerosis of the artery without having ischemia. The June 2019 Board remand instructed the VA examiner to opine whether the Veteran’s carotid artery stenosis is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including exposure to herbicide agents. Here, the examiner indicated that the Veteran’s carotid artery stenosis was less likely than not related to service, including exposure to herbicide agents. The examiner noted that the Veteran’s service treatment records do not reflect any complaints, findings, or treatment for bilateral carotid artery stenosis. Further, the examiner reported that herbicides have not been implicated as a cause or aggravating factor of carotid stenosis. The Board finds that the foregoing medical opinion adequate because the examiner reviewed the Veteran’s relevant medical history and offered clear opinions regarding the relationship between his bilateral carotid artery stenosis and his active service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has submitted no evidence other than his own statements asserting that his bilateral carotid artery stenosis is directly related to service and exposure to Agent Orange. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran asserts that his bilateral carotid artery stenosis is related to his active service, including his herbicide exposure therein, his lay statements are not competent evidence as to these matters. The etiology of a disability, particularly its potential relationship to herbicide exposure, is not a simple question that can be answered by mere observation. The etiology or causation of a heart condition requires medical and/or scientific training and knowledge that is beyond a lay person such as the Veteran. Accordingly, his lay statements of causation are not probative evidence as to nexus or the question of whether his carotid artery stenosis is related to service and/or herbicide exposure. Thus, in reviewing the evidence, the Board finds that the most probative evidence is the December 2019 VA examination and medical opinion. This medical opinion considered all evidence of record and contained well-reasoned and thorough conclusions with rationales. Further, this opinion is not speculative. Thus, the Board finds the December 2019 VA examination and medical opinion to be the most probative evidence of record as to the etiology of the Veteran’s bilateral carotid artery stenosis on a direct basis. Accordingly, the preponderance of evidence is against a finding of service connection. Therefore, the appeal must be denied as to service connection for Veteran’s bilateral carotid artery stenosis on a direct basis. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection For Bilateral Carotid Artery Stenosis, As Secondary To The Service-Connected Ischemic Heart Disease After carefully considering this matter, and for reasons expressed immediately below, the Board finds that the issue of entitlement to service connection for bilateral carotid artery stenosis, as secondary to the service-connected ischemic heart disease, must be remanded for further development. Initially, the Board notes that, in a December 2017 rating decision, the RO proposed to sever service connection for ischemic heart disease due to a clear and unmistakable error in the October 2017 rating decision which granted service connection for ischemic heart disease and assigned an evaluation of 10 percent. The December 2017 rating decision indicated that the Veteran should not have been granted service connection because a diagnosis for ischemic heart disease was not present at the time of the October 2017 rating decision. The Board further notes that the Veteran’s representative requested a pre-determination hearing in January 2018 following the December 2017 rating decision. See January 2018 Correspondence Letter. However, the Veteran’s representative withdrew this hearing request in March 2018. See March 2018 Correspondence Letter. Additionally, the Board acknowledges that, in February 2019, the Veteran’s representative sent a correspondence indicating a desire to proceed with adjudicating the Veteran’s claim for service connection for IHD. In a February 2020 letter, the RO noted that it had “discontinued action” on the Veteran’s appeal for ischemic heart disease. Significantly, however, at no time has the RO issued a final decision on the proposed action to sever service connection for ischemic heart disease. Accordingly, because the RO has not issued a final determination on whether service connection for ischemic heart disease is being severed, a remand is necessary. A decision on the remanded issue of service connection for ischemic heart disease could significantly impact a decision on the claim for service connection for carotid artery stenosis, as secondary to the service-connected ischemic heart disease. This matter is thus REMANDED for the following action: Direct the Agency of Original Jurisdiction (AOJ) to issue a decision on the issue of proposed severance of service connection for ischemic heart disease. Then, readjudicate the claim for service connection for bilateral carotid artery stenosis, as secondary to the service-connected ischemic heart disease. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Dourmashkin, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.