Citation Nr: 21004269 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-00 951 DATE: January 26, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected HIV and HIV related medications, is denied. Entitlement to service connection for an artery disease of the bilateral legs, to include as secondary to service-connected HIV and HIV related medications, is denied. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected HIV and HIV related medications, is denied. Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to service-connected HIV and HIV related medications, is denied. REMANDED Entitlement to service connection for a psychiatric disorder, other than unspecified trauma and stressor related disorder, to include as secondary to service-connected HIV and HIV related medications, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected HIV and HIV related medications, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has hypertension due to an event, injury, or disease in service or secondary to a service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran has artery disease of the bilateral legs due to an event, injury, or disease in service or secondary to a service-connected disability. 3. The preponderance of the evidence is against finding that the Veteran has diabetes mellitus, due to an event, injury, or disease in service or secondary to a service-connected disability. 4. The preponderance of the evidence is against finding that the Veteran has bilateral lower extremity neuropathy, due to an event, injury, or disease in service or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 2. 3. The criteria for service connection for artery disease of the bilateral legs are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 4. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 5. The criteria for service connection for bilateral lower extremity neuropathy are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1989 to November 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2011, rating decision of the Saint Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Service Connection 1. Entitlement to service connection for hypertension, to include as secondary to service-connected HIV and HIV related medications 2. Entitlement to service connection for an artery disease of the bilateral legs, to include as secondary to service-connected HIV and HIV related medications 3. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected HIV and HIV related medications 4. Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to service-connected HIV and HIV related medications The Veteran contends that he suffers from hypertension, artery disease of the bilateral legs, diabetes, and bilateral lower extremity neuropathy related service. The Veteran is service connected for HIV, and has received treatment throughout the course of the appeal for HIV. The Veteran has asserted, in the alternative, that his conditions are secondary to his service-connected HIV, and/or the medications used to treat HIV. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence is against finding that the Veteran suffers from hypertension, artery disease of the bilateral legs, diabetes, and bilateral lower extremity neuropathy, directly related to his military service, or as secondary to his service-connected HIV and/or HIV medications. His STRs are void for indications of hypertension, artery disease of the bilateral legs, diabetes, or bilateral lower extremity neuropathy. According to a May 2011 visit at the Gainesville VAMC, the Veteran has a history of diabetes mellitus, that is controlled with diet. He also has a history of hypertension, and takes no medication. At this visit, he was also noted as having possible symptoms of restless leg syndrome, as well as obstructive sleep apnea. At the Board hearing, he reported a history of OSA and being treated with a CPAP. He stated he carries the diagnoses of hypertension and diabetes; however, he was not taking medication to treat either. He reported a history of tingling and pain in his legs. In May 2019, he underwent a peripheral nerve examination. He was diagnosed with peripheral neuropathy of the bilateral lower extremities; with a note he was diagnosed in 2009. He reported numbness, tingling, and burning sensations in his feet, as well as his left thigh. The Veteran has had HIV since 1989. He was started on AZT in 1990, and then in late-1990s changed to Epivir, followed by a change in 2018 to Biktarvy. He has had diabetes since 1999. He reported he began drinking alcohol heavily from 1984 until 2013, when he stopped drinking completely. The examiner concluded the Veteran’s neuropathy of the bilateral lower extremities is less likely than not incurred in or caused by military service. The examiner noted it would be with resort to speculation to opine regarding his lower extremity neuropathy being caused by or aggravated by his HIV and/or medications used to treat HIV. The opinion was provided based on evaluation of the Veteran and on reviewing the medical records. The examiner noted the exact etiology of the Veteran’s peripheral neuropathy is not clear as he also has diabetes, in addition to HIV, as well as a prior history of alcohol abuse which can also cause or aggravated peripheral neuropathy. In May 2019, the Veteran underwent a diabetes examination. He was diagnosed with diabetes in 2001, and treats with a prescribed oral hypoglycemic agent, and a restricted diet. The examiner concluded that diabetes is not due to service. The rationale was there is no evidence in the Veteran’s STRs of diabetes, and he was not diagnosed with diabetes until 2001, seven years post discharge. He has a family history of diabetes, and a personal history of alcohol and drug abuse. The examiner concluded the Veteran’s diabetes is less likely than not caused by or aggravated by his service-connected HIV and/or medications sued to treat HIV. The Veteran’s glucose intolerance occurred prior to starting indinavir, and the records indicate he had not taken medication since 1999. Given the evidence of record of the Veteran’s non-compliance with medications, and his significant risks for diabetes, the potential risk from HIV medications is less likely than not that the cause of his diabetes. Further, the examiner pointed out that the record does not show the Veteran was actually taking medication during the period of time his diabetes onset. Further the evidence reveals his diabetes improved once the Veteran regularly took his HIV medications. In May 2019, the Veteran underwent a hypertension examination. He reported that sometime in 2002, he discovered he had diabetes and hypertension. He reported he was drinking and using drugs heavily at the time. The examiner noted alcohol and cocaine use are strong etiologic risk factors for hypertension. The Veteran reported his hypertension came under control with medications and diet and exercise in 2002. He then remained off medication for several years. The examiner found the Veteran’s hypertension was not due to service. The Veteran’s hypertension was diagnosed over seven years post discharge, and his STRs are void for evidence of hypertension. The examiner concluded hypertension is less likely than not caused or aggravated by HIV and/or medications used to treat HIV. The Veteran was non-compliant, initially, with taking HIV medications. Given the Veteran’s non-compliance with medications and his other significant risks for hypertension, to include family history, high fat/salt/carbohydrate diet, alcohol intake and cocaine use, the potential risk from HIV medications is less likely than not the cause of his hypertension. Further, his blood pressure control actually improved once he was regularly taking his HIV medications. In May 2019, he underwent an artery and vein conditions examination. His STRs are void for any diagnosis of arterial disease of the legs. The examiner indicated the Veteran did not presently have a vascular disease. There were no signs or symptoms of an artery condition. The examiner concluded the objective evidence shows a complete absence of artery disease of the legs; and therefore, an opinion could not be rendered. Although the Veteran believes he suffers from hypertension, artery disease of the bilateral legs, diabetes, and bilateral lower extremity neuropathy due to service, or as secondary to HIV, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinions. The 2019 opinions establish the Veteran does not suffer from hypertension, artery disease of the bilateral legs, diabetes, and bilateral lower extremity neuropathy, due to service, to include as secondary to HIV/medications to treat HIV. The 2019 examiner concluded there is no indication his conditions are related to or aggravated by HIV, or his HIV medications. In so concluding, the examiners provided detailed rationale—including consideration of the medical evidence and lay reports. The examiners also pointed to improvement in his hypertension and diabetes mellitus following recommended use of his HIV medications. The examiner’s opinions are probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Unfortunately, there are no competent opinions to the contrary. The most probative evidence of record does not show that the Veteran suffers from hypertension, artery disease of the bilateral legs, diabetes, and bilateral lower extremity neuropathy directly due to service or secondary to HIV. Therefore, the claims must be denied. REASONS FOR REMAND 5. Entitlement to service connection for a psychiatric disorder, other than unspecified trauma and stressor related disorder, to include as secondary to service-connected HIV and HIV related medications The Veteran has filed a claim for service connection for posttraumatic stress disorder (PTSD), depression, and anxiety, which the Board recharacterized broadly to encompass all psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The RO in an October 2020 decision, granted the Veteran entitlement to service connection for unspecified trauma and stressor related disorder. Therefore, before the Board the issue is limited to entitlement to service connection for a psychiatric disorder, other than unspecified trauma and stressor related disorder. Service treatment records (STRs) document that in 1992 he was noted to be alcohol dependent, and in 1994 he was found to be agitated and nervous in response to alcohol dependence and withdrawal symptoms. A treatment note in 1994, also documents the Veteran as having borderline histrionic traits. The record reveals that the Veteran has also filed a claim for PTSD, which he reiterated at the Board hearing. The stressor has been identified as the following: while stationed in France he was sitting at a bus stop in Marseille, and a fellow soldier, while sitting next to him, was shot and killed. He indicated the incident occurred in December 1989, in Marseille, France. He was assigned to the USS Forrestal. He stated his shipmate was sitting at a bus stop and someone shot him in the face, and he died on the spot. The RO did not attempt to verify this stressor. In June 2018, the Board remanded the claim for the AOJ to attempt to verify the claimed in-service stressor. In the event the stressor could not be verified a formal finding of unavailability with notice to the Veteran was to be created. The AOJ sent the Veteran one letter in March 2019, and did nothing further. As there has not been substantial compliance with the Board’s previous remand directives another remand is required. Stegall v. West,11 Vet. App. 268, 271 (1998). 6. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected HIV and HIV related medications In June 2018, the Board remanded the claim for an examination to determine the etiology of the claimed OSA. The Veteran underwent a sleep apnea examination in May 2019. He was diagnosed with sleep apnea in 2011. He uses a CPAP device. The examiner concluded it would be with resort to mere speculation to opine regarding the onset of OSA. The examiner concluded OSA is at least as likely as not caused by HIV and or medications used to treat HIV. The rationale was there is no objective evidence of OSA being caused by or aggravated by HIV and/or medications used to treat HIV. An addendum opinion was rendered in November 2020, and the examiner clarified that OSA is less likely than not proximately due to or a result of HIV. There is no opinion as to direct service connection, and the opinion with regard to secondary service connection needs clarification. A remand is needed to obtain an addendum to the May 2019 examination. The matters are REMANDED for the following action: 1. In light of the grant of service connection for other stressor or trauma-related disorder, ask the Veteran whether he wishes to continue his PTSD claim. 2. If the Veteran indicates he wishes to continue his PTSD claim, please prepare a summary of the in-service stressor identified by the Veteran (involving a named fellow soldier shot to death in Marseille). The AOJ is asked to attempt to verify the reported stressor from any appropriate sources. Document all correspondence. If any portion of the records cannot be obtained, create a formal finding of unavailability with notice to the Veteran. Inform the Veteran that he may also submit any records in his possession. 3. Obtain an addendum opinion for the May 2019 OSA examination. The need to physically examine the Veteran is left to the discretion of the examiner. The examiner is asked to address the following: a) Is it at least as likely as not that OSA began in or was caused by or related to active military service or events therein? b) Is it at least as likely as not that OSA was caused or aggravated by his service-connected HIV, and/or medications used to treat HIV? (Continued on the next page)   Rationale should be provided for all findings and conclusions. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.