Citation Nr: 21002305 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-22 428 DATE: January 13, 2021 REMANDED Entitlement to service connection for peripheral vascular disease, status-post angioplasty to bilateral lower extremities for venous obstruction (claimed as vascular condition/circulation in lower body) is remanded. REASONS FOR REMAND The Veteran had active service from June 1974 to December 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), the Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in March 2018 at which time it was remanded for further development. This matter was again before the Board in July 2020 at which time it was remanded for further development. Entitlement to service connection for peripheral vascular disease, status-post angioplasty to bilateral lower extremities for venous obstruction (claimed as vascular condition/circulation in lower body) is remanded. The Veteran was diagnosed with peripheral artery disease post angioplasty in the bilateral femoral arteries as confirmed in an August 2020 VA examination. The date of his diagnosis was noted as 2011. The Veteran has asserted that symptoms of peripheral artery disease began during service and continued and progressed since that time. His wife has stated that the Veteran told her that he experienced leg symptoms during service and he has had similar symptoms ever since. Complaints of leg cramps manifested by exercise are documented in the Veteran’s service treatment records. In addition, a mental health clinic reported “shaking” of his right leg. The Veteran also complained of, and was treated for, sudden onset acute headaches with dizziness, watering eyes, and double vision. He also complained of pressure in the back of his eyes and “pounding heart” in conjunction with headaches. The Veteran’s blood pressure during in his entrance exam, at which time he was 19 years old, was 136/80, classified as “pre-hypertension.” The Veteran filed a claim for hypertension and vascular disorder on October 24, 2012. In November 2012, VA contacted the Veteran and requested that he clarify his claimed vascular disorder. The Veteran stated that it is “the same as the poor circulation in lower body.” The Veteran also stated that he was “not sure of the exact condition related to his heart.” The Board notes that Social Security Administration records from August 2012 indicate that the Veteran reported diminishing circulation limited his ability to work by causing pain and other symptoms. The Veteran was afforded a VA examination in November 2012. He was diagnosed with hypertension, bilateral knee and ankle strain, and angioplasty to bilateral lower extremities for venous obstruction (2011). The examiner stated that the Veteran is unable to maintain substantially gainful employment in a physical position due to bilateral knee, ankle and venous conditions of the legs and these conditions are progressive conditions and likely to be permanently disabling. Functional limitations impacting work and activities of daily life were noted as an inability to walk more than one block and limited standing due to vascular disease. A February 2018 vascular laboratory lower arterial examination noted symptoms of claudication (pain or cramping caused by too little blood flow to legs or arms, usually a symptom of peripheral artery disease). Pulse volume recording was consistent with severe disease in the right and moderate disease in the left. In March 2018 the Board remanded, finding the 2012 examination was inadequate as the Veteran’s claims file was not available for review and the examiner did not provide a nexus opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). An August 2018 ultrasound indicated severe arterial hemodynamics disease at rest in both lower extremities. A tele-health examination confirmed a diagnosis of peripheral artery disease. In August 2018, a VA medical examiner found no diagnosis of vascular disease. He noted the medical history for arteriosclerosis obliterans with a date of onset of the symptoms as 2000. The Veteran reported that this disorder began spontaneously during physical training. The examiner found that the disorder has stayed the same. The examiner opined the claimed condition was less likely than not incurred in or caused by service. The rationale offered was – “After reviewing medical records dated 09/17/1974, 01/30/1975, 08/19/1975, 09/09/1975, 11/07/1975 and performing physical examination, there is no pathology to render a diagnosis of arteriosclerosis obliterans.” A July 2020 Board decision remanded for further development. The Board noted that the Veteran’s claim file was not available for review by the November 2012 VA examiner. The 2012 examiner diagnosed a vascular disorder, noting that the Veteran had undergone surgery for angioplasty to the lower extremities for obstruction in 2011 and that he was taking medication for the condition. During the August 2018 examination the Veteran reported that arteriosclerosis obliterans began spontaneously during physical training and has stayed the same. The 2018 VA examiner found that there was no pathology to render a vascular disorder diagnosis. In July 2020, the Board found that the August 2018 VA opinion was insufficient for deciding the claim as the examiner did not provide an etiological opinion regarding the previously diagnosed disability. During the pendency of the appeal, the Veteran has been diagnosed with angioplasty to bilateral lower extremities for venous obstruction. The Veteran is eligible for benefits even if the disability resolved during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board remanded the matter for an addendum opinion. In August 2020, a VA examiner provided an addendum opinion. The examiner noted the diagnosis of peripheral vascular disease status post angioplasty. He noted the onset as 2011 with bilateral lower leg pain and difficulty walking short distances. Symptoms of bilateral lower extremity pain, claudication, and fatigue were noted. Bilateral claudication was noted on walking 25 and 100 yards on a level grade at 2 miles per hour. The examiner stated the disorder improved after angioplasty and stents. He noted that claudication, or cramping pain in the leg, is typically caused by obstruction of the arteries. He noted brachial index testing indicated severe right arterial disease and mild left arterial disease. The examiner found that the Veteran’s vascular disorder impacts his ability to work as pain in the bilateral lower legs occurred with work-related prolonged standing and walking short distances. The examiner opined that it is less likely than not that the diagnosed bilateral peripheral artery disease status-post angioplasty is related to service. He offered the rationale that this disorder began decades after service and service treatment records are negative for peripheral artery disease or symptoms that would be consistent with that diagnosis. The Board finds that the August 2020 addendum opinion, and the 2012 and 2018 VA opinions are still not in substantial compliance with the Board’s prior remands. The VA examinations of record dismissed, without adequately addressing, the Veteran’s documented in-service symptoms and treatment of leg cramps, the Veteran’s headaches, and eye pressure, and his documented in-service pre-hypertension in the context of his later-diagnosed peripheral vascular disorder. The examiners failed to address evidence of continuing symptomatology, including an August 2017 primary care note indicating complaints of cramping in legs, and a March 2019 primary care note indicating complaints of right calf pain with exercise. The examiners also relied heavily on the passage of time between service and diagnosis. The Board notes that the passage of time between the Veteran's service and diagnosis for the claimed disorder is only one factor to weigh in resolving the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the examiners failed to adequately address the Veteran’s lay statements regarding his symptoms during service and continuing thereafter to the present. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). In Jandreau v. Nicholson, 492 F.3d 1372 (2007), the Federal Circuit held that lay evidence can be considered competent and sufficient to establish a diagnosis of a condition when: (1) A layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. A lay person is considered competent to testify in regard to the onset and continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (the Court) held that it was prejudicial error to disregard the Veteran’s lay assertions as incompetent, by not adequately considering material evidence favorable to the Veteran’s claim. Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after it has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). A lay statement that retroactively asserts symptoms during service that continued post-service is competent evidence that the Board must weigh in relation to other record evidence. Savage v. Gober 10 Vet. App. 488 (1997). The failure of the VA examiners to adequately weigh all of the evidence favorable to the Veteran requires remand for a new examination and opinion. The matters are REMANDED for the following action: The AOJ should schedule the Veteran for an examination with an appropriate clinician, different than the prior examiners, to ascertain the etiology of his peripheral vascular disease. The Veteran's file must be reviewed by the examiner in conjunction with the examination. The VA examiner is asked to provide an opinion concerning whether the Veteran's in-service symptoms, including leg cramps, headaches, eye pressure, and pre-hypertension at least as likely as not represented the early onset of his diagnosis of peripheral vascular disease of the lower extremities. The examiner must specifically address the Veteran’s lay statements as to his symptoms and onset of symptoms. If the opinion is to the effect that the diagnosed disability is not related to the Veteran’s service, the examiner should identify the etiology considered more likely. The examiner must explain the rationale for all opinions, citing to supporting factual data as deemed appropriate. If a requested opinion cannot be provided without resort to mere speculation, it should be so stated (with explanation). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.