Citation Nr: 20046882 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-40 842 DATE: July 13, 2020 ORDER The petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to a rating higher than 20 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating higher than 20 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected left lower extremity peripheral neuropathy, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus, type II, with erectile dysfunction, is remanded. Entitlement to service connection for bilateral lower extremity (BLE) venous insufficiency, to include as secondary to service-connected BLE peripheral neuropathy, is remanded. FINDING OF FACT An unappealed July 2008 rating decision denied service connection for an acquired psychiatric disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The July 2008 rating decision denying the claim for service connection for an acquired psychiatric disorder is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to November 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2019 at which time the Board, inter alia, denied the petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder and ratings higher than 20 percent rating for BLE peripheral neuropathy. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). An Order of the Court, dated in October 2019, granted a Joint Motion for Partial Remand (JMPR), vacating the January 2019 Board decision with regard to the issues of the petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder and ratings higher than 20 percent for BLE peripheral neuropathy and remanding the claims to the Board for action consistent with the terms of the JMPR. The JMPR noted that the Veteran was not appealing the January 2019 Board’s decision to grant the Veteran’s petition to reopen his previously denied claim for entitlement to service for a gastrointestinal disorder, and he was not appealing the January 2019 Board’s decision that denied the Veteran’s claim for service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease. In January 2019, the Board remanded the claim for entitlement to service connection for a left knee disability for further development. The RO substantially complied with remand directives, and the appeal is properly returned for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). There has been no specific contention or allegation otherwise to address herein. Finality of Decisions The JMPR instructs the Board to consider and discuss the ambiguity as to whether VA mailed the September 1970 and May 2007 rating decisions to the Veteran’s correct addresses of record, such that they can appropriately be characterized as final decisions. See CAVC Decision (October 2019). This contention was not previously before the Board. The motion indicates that, while the RO mailed the September 1970 rating decision to an address in Santurce, San Juan, Puerto Rico (PR), two months prior to that date, the Veteran and his wife appeared to reside at an address in Rio Piedras, PR. Id. Additionally, as it relates to the May 2007 rating decision, while VA mailed that rating decision to an address in Carolina, PR, 00987, a VA medical examination approximately three weeks prior, documented a different address in Carolina, PR, with a different zip code (00982). Id. The Veteran’s attorney asserts that these rating decisions were not mailed to the proper address, and therefore, the rating decisions are not final. Under the provisions of 38 U.S.C. § 7105, appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction. A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except as may otherwise be provided by regulations not inconsistent with this title. 38 U.S.C. § 7105. In this case, the Veteran has a rather extensive history regarding his claim for service connection of an acquired psychiatric disorder. Ultimately, the matter turns on whether there is “clear evidence” that the Veteran did not receive notification of the September 1970 and May 2007 rating decisions. The Board will not list the entirety of the addresses in question in order to maintain confidentiality. The Veteran filed an initial claim for service connection for a nervous condition in January 1970. His application included an address in Santruce, San Juan, PR. See VA 21-526 (January 1970). The claim was initially denied based on failure to attend a scheduled examination in April 1970. The Veteran was notified of the denial and that no further action would be taken until he informed VA of willingness to report for examination at the address on his application. See Notification Letter (April 1970). He attended examinations in May 1970 and August 1970. See VA examination (May 1970); Medical Treatment Record (September 1970). In August 1970, a VA 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action was submitted from VHA (VACSJ) requesting information on service connection from VBA. See VA 10-7131 (September 1970). The address for the Veteran included on the request was in Rio Piedras, PR. Id. A September 1970 rating decision denied service connection for acquired psychiatric disorder diagnosed as depressive reaction, claimed as a nervous disorder. The claim was denied because the evidence did not show that the disability was incurred in or related to the Veteran’s active service. Notably, depression was attributed to the many family problems the Veteran encountered upon separation from service. An October 1970 letter notified the Veteran of this decision and how to appeal; notification was sent to the same address as previous communications which matched the address on the Veteran’s application. See VA 21-8947 (September 1970); Notification Letter (October 1970). VA received no returned mail, no appeal, and no new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. It is the burden of the Veteran to keep VA apprised of his or her whereabouts and, if the Veteran does not do so, there is no burden on VA to “turn up heaven and earth” to find the Veteran. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Absent evidence that the Veteran notified VA of a change of address and absent evidence that any notice sent to him at his last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996); Thompson (Charles) v. Brown, 8 Vet. App. 169, 178-79 (1995), recons. on other grounds, 9 Vet. App. 173 (1996); see also Hyson, 5 Vet. App. at 264-65. “However, where a mailing is returned as undeliverable and a claimant’s file discloses other possible and plausible addresses, [VA] must attempt to locate the veteran at the alternative known addresses.” Cross, supra; see also Thompson (Charles) and Hyson, both supra. CAVC has held that the law presumes the regularity of the administrative process “‘in the absence of clear evidence to the contrary.’” Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (quoting Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992) [hereinafter Ashley I]); see Mason, 8 Vet. App. at 53. In order for this presumption to attach, VA must mail notice to the latest address of record. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992) [hereinafter Ashley II] (as to mailing of BVA decision pursuant to section 7104(e)); see also Schoolman, 12 Vet. App. at 310 (as to mailing of VA notice informing appellant of possible entitlement to DIC); Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992) (as to mailing of RO decision). An assertion of nonreceipt of a VA decision alone does not establish the “clear evidence” needed to rebut the presumption of regularity of the mailing. Ashley II, 2 Vet. App. at 309; cf. Chute v. Derwinski, 1 Vet. App. 352, 353 (1991) (per curiam order) (holding that presumption of regularity was rebutted where Secretary could not show that VA had mailed notice of BVA decision and appellant’s letters appeared to reflect that he was seeking information regarding status of BVA review, thus indicating that he had not received that notice). CAVC, however, has held that VA’s use of an incorrect address for a claimant constitutes the “clear evidence” needed to rebut the presumption of regularity that VA properly mailed notice of its decision to the claimant. Fluker v. Brown, 5 Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curiam order) (holding that BVA’s use of incorrect address in mailing BVA decision to appellant constituted clear evidence rebutting presumption of regularity inasmuch as it showed that mailing” appeared to be ‘irregular’” (quoting Ashley II, 2 Vet. App. at 309)). With regard to the September 1970 rating decision, there is no evidence, subsequent to the January 1970 application and prior to the October 1970 notification, that the Veteran submitted notice of a change of address to VA’s Veterans Benefits Administration (VBA). With regard to the address listed on the August 1970 VA 10-7131, the Board finds that it does not qualify as proper notice to VBA. The Veterans Health Administration (VHA) is not a delegated authority to accept notice of a change in address on behalf of VBA. Generally, notice of a change in address must be made to an individual at VA who is authorized to receive the information or statement and meets certain requirements. Pursuant to 38 C.F.R. § 3.217, VA may not take action based on oral information or statements unless the VA employee receiving the information meets the following conditions. During the conversation in which the information or statement is provided, the VA employee: (i) identifies himself or herself as a VA employee who is authorized to receive the information or statement (these are VA employees authorized to take actions under §§ 2.3 or 3.100 of this chapter); (ii) verifies the identity of the provider as either the beneficiary or his or her fiduciary by obtaining specific information about the beneficiary that can be verified from the beneficiary’s VA records, such as Social Security number, date of birth, branch of military service, dates of military service, or other information; and (iii) informs the provider that the information or statement will be used for the purpose of calculating benefit amounts. Additionally, during or following the conversation in which the information or statement is provided, the VA employee documents in the beneficiary’s VA records the specific information or statement provided, the date such information or statement was provided, the identity of the provider, the steps taken to verify the identity of the provider as being either the beneficiary or his or her fiduciary, and that he or she informed the provider that the information would be used for the purpose of calculating benefit amounts. See 38 C.F.R. § 3.217. Pursuant to § 3.100, authority is delegated to the Under Secretary for Benefits and to supervisory or adjudicative personnel within the jurisdiction of the VBA designated by the Under Secretary to make findings and decisions under the applicable laws and regulations as to entitlement of claimants to benefits under all laws administered by VA governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of the Compensation Service or the Pension and Fiduciary Service. The Board notes that VHA personnel are typically not within the jurisdiction of the VBA or the Under Secretary for Benefits because the VHA and VBA are separate offices and administrations within VA’s organizational structure. In this case, there is no indication that the VHA personnel who received the information from the Veteran appeared to be or to have presented him-/herself to be under the jurisdiction of the VBA or the Under Secretary for Benefits or an individual delegated with the authority to make findings and decisions under VA laws and regulations governing payment of benefits to veterans within the jurisdiction of Compensation Service. Nor does the evidence show that the individual taking the information met the requirements set forth under § 3.217 or even that the information documented on the form was for compensation purposes. Specifically, the form was designated to be a notice or report of initial admission into a VA Hospital as a patient and a request for information regarding service connection. See VA 10-7131 (September 1970). There is no evidence that the change of address applied to the Veteran’s appeals for compensation benefits. For these reasons, the Board finds that the change in address in the VHA document does not qualify as proper notice to VBA or that VHA is a delegated authority to accept notice of a change in address on behalf of VBA. Additionally, the record establishes that VBA mailed the notice to the Veteran’s latest address of record, and the mailing was not returned as undeliverable. Prior to the argument of the Veteran’s attorney before the Court, there is no assertion in the record by either the Veteran or his previous representatives that the September 1970 rating decision was not received. The mere assertion of nonreceipt of the decision almost 50 years after mailing does not establish the “clear evidence” needed to rebut the presumption of regularity of the mailing. As the presumption of regularity of the mailing is not rebutted, the Board finds that the September 1970 rating decision is final. Notwithstanding the foregoing, the Board finds that even had the Veteran not received notification regarding the September 1970 rating decision, the issue was adjudicated in later, unappealed decisions on the same issue which would have subsumed any unadjudicated claims. The Board received a request to reopen the Veteran’s claim for a nervous condition in February 2007. See VA 21-4138 Statement in Support of Claim (February 2007). The address on the Veteran’s application was in Carolina, PR 00987. All notices from VBA regarding the Veteran’s claim were sent to that address. VHA headings noted a different address in Carolina, PR 00982; however, examination instructions clearly list the Veteran’s contact address as the one on his application for benefits (Carolina, PR 00987). See VA 21-2507a Request for Physical Examination, “Remarks” (March 2007). A May 2007 rating decision denied service connection for a nervous condition. See Rating Decision (May 2007). The Veteran was notified of the denial in a May 2007 letter sent to the address on his application for compensation benefits and notice of examination. See Notification Letter (May 2007). The mailing was not returned as undeliverable. The record contains no evidence of a notification of a change of address sent to VBA between February and May 2007. As the record clearly establishes that all notifications from both VHA and VBA were mailed to the address on the Veteran’s application for compensation benefits and the mailings were not returned as undeliverable, there is no basis for his attorney’s assertion almost 13 years later that the Veteran did not receive notice of the decision. As VA received no appeal and no new and material evidence prior to expiration of the appeal period, the decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. Notwithstanding the foregoing, the Veteran submitted an additional application for service connection for depression in June 2008 with a Carolina, PR 00987 address. See VA 21-4138 (June 2008), Translation Related (November 2018). All notifications regarding the claim and examinations were sent to the address on the Veteran’s claims application. As the claim had been previously considered in September 1970 and May 2007 rating decisions, a July 2008 rating decision denied the Veteran’s claim for “depressive reaction” because the evidence submitted was not new and material. See Rating Decision – Narrative (July 2008). A September 2008 letter sent to the address on the Veteran’s application for compensation benefits notified the Veteran that his claim had been denied. See Notification Letter (September 2008). The mailing was not returned as undeliverable. Additionally, the Board notes that the address on the Veteran’s September 2008 notification letter is the same as the address on his September 2012 application for compensation benefits further supporting a finding that he received notification of the rating decision. Therefore, as the Veteran did not submit new and material evidence within the appeal period or submit a notice of disagreement, the decision became final. The Board acknowledges the Veteran’s attorney’s argument that the presence of a different address in the VHA files indicates the Veteran did not receive notice of the September 1970 and May 2007 rating decisions. However, a careful review of the file indicates that, with the exception of the August 1970 VA 10-7131, there is no indication that the Veteran provided or received notification of adjudicative action at any address other than those listed on his applications for compensation benefits or used by VBA to notify him of actions taken. Additionally, a review of the file clearly shows the Veteran’s claim for service connection for an acquired psychiatric disability (i.e., nervous condition, depressive reaction, depression) was adjudicated in a final July 2008 rating decision, effectively closing any potentially pending claims. Therefore, the question of whether the Veteran was notified of the September 1970 and May 2007 rating decisions was rendered moot long before his 2019 appeal to the Court. 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for an acquired psychiatric disorder The Veteran seeks service connection for a psychiatric disability. The Board concludes that the July 2008 rating decision denying the claim for service connection for acquired psychiatric disorder, claimed as a nervous disorder and depression, is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. As noted above, a July 2008 rating decision denied the petition to reopen the claim for service connection for a depressive reaction because new and material evidence showing that depressive reaction or nervous condition was incurred in or caused by service was not submitted sufficient to reopen the claim. A September 2008 letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence submitted to reopen a previously denied claim is presumed credible unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In April 2016, VA received a claim for service connection for “any psychiatric disorder to include PTSD [posttraumatic stress disorder].” As this issue was previously before the RO, the Veteran’s claim is construed as a petition to reopen the previously denied claim. In a June 2016 rating decision, the RO denied the claim because the evidence neither supported a diagnosis of PTSD nor indicated that depression was the result of an event, disease, or injury in service. The Veteran appeals this decision to the Board. Evidence received since the July 2008 rating decision does not cure any prior evidentiary defect. The evidence submitted since the prior final denial consists of statements and VA treatment records, which continue to show that the Veteran was diagnosed with depression after service due to situational conditions and has had intermittent follow-up of this condition. A May 2016 VA examination report reflects a diagnosis for major depressive disorder. A May 2016 VA PTSD examination report reflects that the Veteran does not meet the diagnostic criteria to support a diagnosis for PTSD. Novel argument and affidavits from the Veteran (dated July 2018 but not previously of record) and his attorney note an attack on the Veteran’s military base on the day of his arrival and reflect the Veteran had in-service mental health treatment requiring hospitalization for over a year in service. See Third Party Correspondence; Affidavit (April 2020). The recent evidentiary submissions do not tend to show that the Veteran has an acquired psychiatric disorder that either had its onset in service or is otherwise related to in-service injury or disease. The Veteran’s attorney argues that the May 2016 VA examination is inadequate because it failed to consider September 1970 VA hospitalization records diagnosing psychosis. See Other (November 2018), Third Party Correspondence (April 2020). She argues that the diagnosis would meet the criteria for presumptive service connection under 38 C.F.R. §§ 3.307, 3.309(a). However, the September 1970 VA hospitalization records are not new and material evidence to reopen the previously denied claim for an acquired psychiatric disorder because they were before adjudicators previously and, moreover, do not link any disability to service. As such, it does not cure any prior evidentiary defect. The Board finds the evidence submitted since July 2008 is new but not material. Evidence that the Veteran’s acquired psychiatric disorder either had its onset in service or is otherwise related to in-service injury or disease is an element of service connection that was previously absent from the record. The evidence added since then provides no indication that the Veteran’s acquired psychiatric disability was incurred in or otherwise related to service or that the Veteran has a diagnosis of PTSD. Thus, the new evidence does not address a previously unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disability to include PTSD. Moreover, while the Veteran has more recently asserted that his psychiatric symptoms are related to various attacks on his military base in Dong Ha, he has not provided any medical evidence linking his symptoms to an in-service event. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008)(A claim for service connection based on a new or different theory of causation for the same disease or injury is still the subject of a previously denied claim and cannot be the basis of a new claim.) See also 38 C.F.R. § 3.304(f) (Service connection for PTSD requires medical evidence diagnosing the condition; a link established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred.) Neither he nor his representative are competent to link his symptoms to an in-service injury. Given the above, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for an acquired psychiatric disorder. Accordingly, the petition to reopen the claim for service connection for an acquired psychiatric disorder is denied. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected lower left extremity peripheral neuropathy The Veteran contends that he has arthritis due to diving for cover during service or alternatively as a complication of a left knee arthroscopy resulting from his service-connected left lower extremity peripheral neuropathy. Though the need for additional delay is regrettable, the Board finds that a remand is necessary for an addendum medical opinion. STRs include a January 1968 pre-induction examination that reflects normal clinical evaluation of the lower extremities although the Veteran reported a past history of “trick” or locked knee, and the examiner noted occasional left knee pain. STRs reflect no complaints or findings for abnormal left knee pathology or pain. A November 1969 service separation examination reflect normal clinical evaluation of the lower extremities, and the Veteran denied knee trouble. Left knee pain is first documented over 40 years after separation. An October 2010 x-ray documents minimal degenerative changes. The Veteran did not report left knee pain on 1970, 2003, 2010, or 2012 VA disability claims. The Veteran submitted buddy statements to support his claim along with a November 2018 private opinion linking his left knee condition to service (“though osteoarthritis is an age-related process, it can be accelerated by even a single injury incident”). The private physician found the Veteran’s reported diving for cover in Vietnam to be a triggering event for the development of arthritis. A March 2019 VA examination report found that the Veteran’s left knee disability was not caused by an injury or event in service or service-connected left lower extremity peripheral neuropathy. The report also stated that the claimed condition “clearly and unmistakably existed prior to service” and was not aggravated beyond its natural progression by an in-service event, injury or illness. An April 2019 addendum opinion reflected that a left knee condition did not pre-exist service; there was no evidence of an injury in service or on separation; private and VA treatment records reflected no continuity of treatment within 20 years of discharge with complaints first documented August 23, 2010; and the private opinion linking the Veteran’s knee disability to service lacked the objective elements of physical examination and review of medical records. Therefore, the report reflected that the claimed left knee condition was not related to the Veteran’s active duty. The Board finds that the March 2019 VA examination report is inadequate, because it did not apply the correct legal standard to address the aggravation prong for secondary service connection. In this case, the evidence, in the form of a subsequent April 2019 VA opinion, indicates that the Veteran’s left knee disability did not preexist service, because his STRs, including the induction and separation examinations, were silent for a left knee condition. Under these circumstances, the correct legal standard to apply for the aggravation prong of secondary service connection is whether the Veteran’s left knee disability was aggravated beyond its natural progression by his service-connected left lower extremity peripheral neuropathy. Accordingly, a remand is required to obtain an addendum opinion using the correct legal standard. 2. Entitlement to a rating higher than 20 percent for left lower extremity peripheral neuropathy 3. Entitlement to a rating higher than 20 percent for right lower extremity peripheral neuropathy The Veteran seeks a higher rating for his BLE peripheral neuropathy. His representative argues that the rating criteria provides a rating for incomplete paralysis of the sciatic nerve alone, and his other symptoms are not contemplated by the rating criteria. In addition to BLE peripheral neuropathy, the Veteran is diagnosed with BLE venous insufficiency, which is reported to cause BLE venous insufficiency, and restless leg syndrome, which is reported to cause the urge to move limbs with or without sensations of burning and itching, leg jerks, twitches, aching, tingling, and creeping. See C&P Exam (September 2017); CAPRI at 30 (February 2017). After careful consideration, the Board finds that the medical evidence is inadequate to decide the appeal. The medical record requires clarification and a retrospective medical opinion in this matter. An October 2014 VA examination reflects the Veteran had mild intermittent pain and moderate paresthesias and/or dysesthesias and numbness of the bilateral lower extremities. Objectively, the Veteran had normal strength, reflexes, and position sense. Sensation was diminished from his lower leg to his toes, bilaterally, with decreased vibration sensation and trophic changes (loss of hair distribution). On examination, the Veteran had moderate, incomplete paralysis of the bilateral sciatic nerve. A February 2016 VA examination documents the Veteran’s reports of bilateral calf numbness and fatigue. On examination, the Veteran had moderate, incomplete paralysis of the bilateral sciatic nerve characterized by symptoms of moderate constant pain, paresthesias and/or dysesthesias, and numbness and severe intermittent pain in the bilateral lower extremities with less than normal strength on ankle plantar flexion and dorsiflexion, decreased ankle reflexes, decreased light touch/monofilament testing in the ankle/lower leg and foot/toes, and decreased vibration sensation with trophic changes but no atrophy. At a May 2016 VA exam, the Veteran reported increased numbness in his upper thighs. On examination, the Veteran had mild, incomplete paralysis of the bilateral sciatic, external and internal popliteal, musculocutaneous, and femoral nerve and the left posterior tibial nerve characterized by symptoms of mild numbness in the bilateral lower extremities with normal strength, reflexes, senses, no atrophy, and no trophic changes. On examination in September 2017, the Veteran was diagnosed with BLE venous insufficiency characterized by varicose veins. He reported numbness and swelling in his calves with associated heaviness sensation in his legs. On examination, symptoms included aching and fatigue in the legs after prolonged standing and walking which were relieved by elevation and compression hosiery. A November 2015 noninvasive venous study of the BLE reflected “mild venous insufficiency of the right PTV [posterior tibial vein] and of the left CFA [common femoral artery] respectively.” The examination report opined that venous insufficiency was not proximately due to or caused by the Veteran’s service or service-connected diabetes mellitus. An October 2019 VA examination report documented the Veteran’s report of pain and tingling sensation in the lower extremities. On examination, the Veteran had moderate, incomplete paralysis of the bilateral sciatic and mild, incomplete paralysis of the bilateral femoral nerve characterized by symptoms of mild numbness and moderate paresthesias and/or dysesthesias in the bilateral lower extremities with normal strength, reflexes, and light touch/monofilament testing and decreased vibration sensation with trophic changes but no atrophy. A medical opinion as to the severity of the Veteran’s symptoms due to his service- connected BLE peripheral neuropathy alone, and apart from that associated with BLE venous insufficiency and restless leg syndrome has not been obtained. Therefore, the Board cannot make a fully informed decision on the issue of a rating higher than 20 percent for bilateral lower extremity peripheral neuropathy. Hence, a remand is necessary for a retrospective opinion on the severity of the Veteran’s service-connected BLE peripheral neuropathy associated with diabetes mellitus during the appeal period. 4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus, type II, with erectile dysfunction The Veteran contends that he has obstructive sleep apnea due to his psychiatric disorder. Alternatively, he contends that obstructive sleep apnea is caused by service-connected diabetes mellitus, type II. See VA 21-526b, Veteran Supplemental Claim (August 2017); Form 9 (August 2019). The Veteran does not contend, and the record does not support finding that obstructive sleep apnea began in service. The Veteran’s service treatment records fail to establish that his current obstructive sleep apnea, was incurred in or is otherwise etiologically related to his active duty service because his service treatment records do not reflect that he sought treatment for, reported signs or symptoms of, or was diagnosed with sleep apnea or any other respiratory condition. The post-service clinical evidence also fails to establish a relationship between the Veteran’s obstructive sleep apnea and his active duty service. Specifically, the post-service clinical evidence does not reflect a diagnosis of, that he sought treatment for, or that he reported signs or symptoms of sleep apnea until January 2017, almost 48 years after his separation from service. Regarding the Veteran’s claim that his obstructive sleep apnea is caused by acquired psychiatric disorder, the Board finds that service connection is not warranted as the Veteran does not have a service-connected acquired psychiatric disability as noted above. However, the question of whether obstructive sleep apnea is caused or aggravated by the Veteran’s service-connected diabetes mellitus, type II, remains. Post-service treatment records do not link service connection for sleep apnea to diabetes mellitus. An August 2019 opinion submitted by the Veteran’s attorney concludes, after review of the Veteran’s claims file, that obstructive sleep apnea (OSA) is caused by service-connected diabetes mellitus. See Medical Treatment Record (August 2019). The opinion reflects that “excess weight is a fourfold risk factor for developing sleep apnea,” and “[e]pidemiologic studies from around the world have consistently identified excess; body weight as the strongest risk factor for OSA.” Id at 2. The opinion continues by finding that diabetes mellitus and metabolic syndrome are frequently associated with obesity and, therefore, have a strong correlation with obstructive sleep apnea. Id. The Board finds this opinion lacks probative value for the following reasons: (1) the author of the medical opinion is not a licensed medical professional (Id at 8-10); (2) the opinion is formed without examining the Veteran; (3) the opinion does not indicate how correlation – a mutual relationship or connection between two or more things, in this case obesity, obstructive sleep apnea, and diabetes mellitus – is equal to causation - the act or agency which produces an effect. Additionally, it is questionable whether the opining professional is competent to give a medical opinion; but even if she is competent, the lack of a medical license of the “expert” reduces the probative value of the opinion. A September 2019 VA examination documented the Veteran’s reports of persistent daytime hypersomnolence and inadequate compliance with use of his CPAP machine. See C&P Exam (September 2019). Relying on medical research in Fishman’s Pulmonary Diseases and Disorders, 5th edition; UpToDate; and Harrison's Principles of Internal Medicine, 20th edition, the examination report found that diabetes mellitus type II is not a cause of, or a risk factor to develop, or aggravation of obstructive sleep apnea. Id. The Board finds that the VA medical opinion is inadequate as to the question of secondary service connection. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the medical opinion is bereft of any meaningful explanation on the question of etiology, although medical literature is referenced. Therefore, an addendum opinion is needed. 5. Entitlement service connection for BLE venous insufficiency, to include as secondary to service-connected BLE peripheral neuropathy The Veteran seeks service connection for BLE venous insufficiency. He contends BLE venous insufficiency is caused or aggravated by his service-connected diabetes mellitus, type II, with erectile dysfunction. The August 2019 medical opinion submitted by the Veteran’s attorney also links BLE venous insufficiency to service-connected diabetes mellitus, type II, with erectile dysfunction, because peripheral neuropathy caused by diabetes mellitus significantly limits his mobility and ambulation. See Medical Treatment Record at 6 (August 2019). As noted above, it is questionable whether the opining professional is competent to give a medical opinion. A September 2017 VA examination report found the “medical literature does not show increased incidence of varicose veins or venous insufficiency related to diabetes mellitus.” See C&P Exam. The Board finds that the VA medical opinion is inadequate as to the question of secondary service connection. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Further, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the medical opinion is bereft of any meaningful explanation on the question of etiology, although medical literature is vaguely referenced, and does not address whether the Veteran’s BLE venous insufficiency is aggravated beyond its natural progression by service-connected diabetes mellitus, type II, with erectile dysfunction. Additionally, the Board cannot make a fully informed decision on the issue of entitlement to service connection for BLE venous insufficiency, because no VA examiner has opined whether his BLE venous insufficiency is caused or aggravated by his service-connected BLE peripheral neuropathy. Therefore, a remand to obtain an addendum opinion is needed. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee disability, diagnosed as status post left knee surgery and degenerative arthritis, is at least as likely as not aggravated beyond its natural progression by his service-connected left lower extremity peripheral neuropathy. The examiner is asked to include a discussion of the documented history and lay assertions in the claims file and any information necessary to allow the Board to properly understand the causal relationship, or lack thereof, between the Veteran’s left knee disability and left lower extremity peripheral neuropathy. 2. Deliver the Veteran’s claims file to an appropriate clinician to determine the severity of his service-connected BLE peripheral neuropathy. The examiner is asked to determine whether a new examination is necessary to address the Board’s directives. The Board seeks a retrospective medical opinion as to the severity of the Veteran’s service-connected BLE peripheral neuropathy. The examiner is reminded that, while the Veteran may have been diagnosed with disorders other than BLE peripheral neuropathy, he is only currently service connected for BLE peripheral neuropathy and only symptoms attributable to that diagnosis are for consideration here. As to service-connected BLE peripheral neuropathy alone, provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria based on past and current medical history, clinical findings, and treatment records. The claims file reflects that the Veteran has been diagnosed with BLE venous insufficiency and restless leg syndrome. If any symptoms associated with any nonservice-connected disorder(s) cannot be distinguished from the Veteran’s service-connected BLE peripheral neuropathy, these should be clearly identified and a complete explanation for such provided. 3. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran’s obstructive sleep apnea. The examiner should provide an opinion addressing the following: (a.) Is it at least as likely as not that the Veteran’s obstructive sleep apnea is caused by his service-connected diabetes mellitus, type II, with erectile dysfunction? (b.) Is it at least as likely as not that the Veteran’s obstructive sleep apnea is aggravated beyond its natural progression by his service-connected diabetes mellitus, type II, with erectile dysfunction? A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran’s BLE venous insufficiency. The examiner should provide an opinion addressing the following: (a.) Is it at least as likely as not that the Veteran’s BLE venous insufficiency is caused by his service-connected diabetes mellitus, type II, with erectile dysfunction? (b.) Is it at least as likely as not that the Veteran’s BLE venous insufficiency is aggravated beyond its natural progression by his service-connected diabetes mellitus, type II, with erectile dysfunction? (c.) Is it at least as likely as not that the Veteran’s BLE venous insufficiency is caused by his service-connected BLE peripheral neuropathy? (Continued on the next page)   (d.) Is it at least as likely as not that the Veteran’s BLE venous insufficiency is aggravated beyond its natural progression by his service-connected BLE peripheral neuropathy? A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. Journet Shaw Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.E., Associate Counsel 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.