Citation Nr: 21003450 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-27 633A DATE: January 21, 2021 ORDER Entitlement to service connection for a bilateral lower extremity disorder (other than diabetic peripheral neuropathy) to include peripheral vascular disease, as secondary to service-connected diabetic neuropathy, is granted. FINDING OF FACT Resolving all doubt in favor of the appellant, the Veteran suffered from peripheral vascular disease that was caused by his service-connected diabetic neuropathy. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral lower extremity disorder (other than diabetic peripheral neuropathy) to include peripheral vascular disease, secondary to service-connected diabetic neuropathy, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1968 to January 1970. In October 2017, the Veteran died. In December 2018, the appellant, his surviving spouse, was substituted as the claimant for the purpose of processing this appeal to completion. This matter comes before the Board of Veterans’ Appeal (Board) on appeal of an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the matter for further development. 1. Entitlement to service connection for a bilateral lower extremity disorder (other than diabetic peripheral neuropathy) to include peripheral vascular disease, as secondary to service-connected diabetes mellitus The appellant contends that the Veteran’s bilateral peripheral vascular disease was caused by his service-connected diabetes mellitus and/or diabetic neuropathy. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) 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 may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. First, regarding evidence the first element of service connection, the evidence conflicts. In August 2010, a VA examiner reported positive hair distribution on both legs, warm 3+ pedal pulse in the right leg, and 2+ pedal pulse in his left leg with dry and flaky skin. See Aug. 2010 VA Examination, p. 2. The examiner opined that there was no history of clear evidence of peripheral vascular disease. Id. at 3. However, multiple private treatment records indicate a history of lower extremity issues. A March 2010 electromyographic (EMG) study revealed abnormal results and the examiner noted that other conditions could not be assessed, as the interpretation was complicated by overlying polyneuropathy. See Jan. 2011 Medical Treatment Record – Non-Government Facility #2, p. 43. A note from an October 2010 follow up appointment noted that the Veteran had a stroke that left him with weakness in the lower left extremity. See Jan. 2011 Medical Treatment Record – Non-Government Facility #1, p. 21. In October 2012, the Veteran stated that he had constant pain and aching in his legs after his two strokes and two transient ischemic attacks. See Oct. 2012 VA Form 9. In March 2016, the Veteran submitted an Artery and Vein Conditions Disability Benefit Questionnaire (DBQ) by Dr. K.Q. Dr. K.Q. diagnosed the Veteran with peripheral vascular disease and bilateral diabetic neuropathy. Dr. K.Q. further noted that the Veteran experienced bilateral claudication on walking more than 100 yards and bilateral diminished peripheral pulses. Also, Dr. K.Q. noted that the patient had impaired motor skills and could not walk long distances without assistance and that he needed help with gait and balance. In April 2016, the Veteran underwent a VA examination for peripheral neuropathy, in connection with a claim for an increased rating for that condition. The examiner indicated at the Veteran had experienced symptoms such as moderate numbness and intermittent mild pain in his lower extremities bilaterally, decreased sense on his great toes bilaterally, and bilateral moderate incomplete sciatic nerve paralysis. In May 2020, a VA examiner opined that the Veteran did not have a diagnosis of a bilateral lower extremity disorder separate and distinct from his diabetic/peripheral neuropathy, including peripheral vascular disease. The examiner referenced “a C&P in 2016,” in which the Veteran was diagnosed with peripheral vascular disease, however the examiner simply noted that no diagnostic testing was performed that supported this diagnosis. There was no further discussion regarding the 2016 examination. It appears that the examiner was referring to the DBQ by Dr. K.Q. that the Veteran submitted in March 2016. The March 2020 examiner effectively dismissed the findings of Dr. K.Q. because no diagnostic testing was performed. Apart from the diagnosis itself, the May 2020 examiner failed to discuss the other findings by the DBQ provider that favored the Veteran’s claim, including symptomatology. The Board notes that a lack of apparent diagnostic testing does not automatically invalidate findings by a medical provider. Accordingly, the Board assigns no probative value to the May 2020 VA examination, as it failed to consider and address conflicting medical evidence of record. The Board finds that the evidence is at least in equipoise as to whether the Veteran had a current disability of peripheral vascular disease. While the August 2010 VA examiner did not diagnose the Veteran with peripheral vascular disease, a private provider in a more recent examination found that such a diagnosis was appropriate. The Board finds no reason to afford the opinion of the VA examiner more weight than the opinion of the Veteran’s private provider, especially considering that the private provider’s opinion was more recent. The Board also finds persuasive the Veteran’s long history of complaints regarding his legs and the March 2010 EMG examiner’s opinion that interpretation of other conditions was complicated by overlying polyneuropathy. Accordingly, as the evidence regarding a current disability is in equipoise, the first element of secondary service connection is met. See Shedden, supra. With regard to direct service connection, a review of the Veteran’s service treatment records does not reveal any complaints or diagnoses of peripheral vascular disease. The appellant does not argue to the contrary. Rather, the appellant believes that the Veteran’s peripheral vascular disease was caused by a service-connected condition. As the competent and credible evidence of record is against a finding that the Veteran had an in-service event or injury relating to peripheral vascular disease, the second element of direct service connection is not met, and the Board will not further address direct service connection. See Shedden, supra. Regarding secondary service connection, the Board notes that the Veteran was service-connected for diabetic neuropathy. See Feb. 2017 Rating Decision – Codesheet. Thus, the second element of secondary service connection is met. See Wallin, supra. The remaining question is whether there is a medical nexus between the Veteran’s bilateral peripheral vascular disease and his service-connected diabetic neuropathy. As to this element, the evidence conflicts. In the 2016 DBQ, Dr. K.Q. opined that the cause of the Veteran’s current peripheral vascular disease was the Veteran’s service-connected diabetic neuropathy. In the May 2020 VA opinion, the examiner opined that it was less likely than not that the Veteran was diagnosed with a bilateral extremity disorder, other than diabetic peripheral neuropathy, that was caused or aggravated by any of the Veteran’s service-connected disabilities. However, as previously mentioned, the Board has assigned no probative value to the May 2020 opinion, as the examiner failed to adequately address the conflicting findings of Dr. K.Q.’s 2016 DBQ. Accordingly, after careful consideration, the Board finds that the evidence is at least in equipoise as to whether there is a connection between the Veteran’s peripheral vascular disease and his service-connected diabetic neuropathy. See Wallin, supra. The Board notes that this matter has been pending for nearly twelve years, an exceptionally long period of time. The issue was remanded most recently in July 2019 to obtain clarification as to whether the Veteran had a current disability of peripheral vascular disease. As previously stated, the examination obtained upon remand was inadequate and the Board accordingly assigned it no probative value. The Board considered remanded once again in an attempt to obtain an adequate VA opinion that considered all relevant evidence of record and clarified the Veteran’s diagnosis; however, as the Veteran is deceased, the Board notes that the likelihood of discovering new diagnostic evidence that would assist in clarifying the diagnosis in order to provide a more thorough etiology opinion is unlikely. Importantly, there is no probative nexus opinion of record that conflicts with Dr. K.Q.’s determination that the Veteran suffered from peripheral vascular disease that was caused by his diabetic neuropathy; given the favorable evidence of record, the Board finds that the evidence is at least in equipoise, and remand is not required. Accordingly, the Board finds that, upon resolving all reasonable doubt in favor of the appellant, service connection for a bilateral lower extremity disorder (other than diabetic peripheral neuropathy) to include peripheral vascular disease, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.