Citation Nr: 21067769 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-44 155 DATE: November 5, 2021 ORDER Entitlement to service connection for a right lower extremity peripheral arterial disorder, characterized as arteriosclerosis obliterans, to include as secondary to another service-connected disability, is granted. Entitlement to service connection for a left lower extremity peripheral arterial disorder, characterized as arteriosclerosis obliterans, to include as secondary to another service-connected disability, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran's right and left lower extremity peripheral arterial disorder, characterized as arteriosclerosis obliterans, is etiologically related to her active-duty service, including as secondary to another service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right lower extremity peripheral arterial disorder, characterized as arteriosclerosis obliterans, to include as secondary to another service-connected disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for a left lower extremity peripheral arterial disorder, characterized as arteriosclerosis obliterans, to include as secondary to another service-connected disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from February 1974 to October 1980. In December 2013, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer available. The Veteran was notified by letter in March 2021that the VLJ who conducted the December 2013 hearing is no longer available, and thus was offered the opportunity to have another hearing before a member of the Board. In March 2021, the Veteran noted she does not wish to appeal at another Board hearing. These matters return to the Board of Veterans' Appeals (Board) following the issuance of a June 2021 Board remand order which directed the Regional Office (RO) to undertake additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a right lower extremity peripheral arterial disorder, characterized as arteriosclerosis obliterans, to include as secondary to another service-connected disability 2. Entitlement to service connection for a left lower extremity peripheral arterial disorder, characterized as arteriosclerosis obliterans, to include as secondary to another service-connected disability The Veteran is seeking service connection for arteriosclerosis obliterans of the lower extremities. She asserts that these disorders began in service and/or were secondarily caused or aggravated by another service-connected disability. After a review of the evidence of record, the Board concludes that service connection should be granted. The Veteran's service treatment records are silent for any diagnoses of a peripheral disorder of either leg. While the Veteran's records do show that she was treated for swelling in her right foot in February 1977, the same records show that treatment providers believed that this was due to trauma from a training exercise. Other service records indicate that the Veteran experienced chronic foot pain and eventually had her right fifth toe amputated and was shortly after discharged. However, there are no further indications of swelling in either of her legs, nor are there any indications that she was treated or diagnosed for a bilateral leg disorder involving the flow of blood in her leg arteries, or another disorder manifesting in her legs at any point. Of note, are the Veteran's September 1980 separation examination and report of medical history, both of which are silent for any indication of a disorder of either leg found by the examiner or reported by the Veteran. Following her separation from service, the Veteran reports that she experienced intermittent foot swelling through 1988, there is no indication that treatment for the reported swelling was sought during this time. In April 1988, the Veteran experienced a fall which she described as her feet slipping out from under her while walking on gravel and with her landing painfully on her buttocks. Treatment notes from the same time from the Veteran's chiropractor notes that the Veteran was experiencing symptoms in her legs. The Veteran's medical records indicate that her treating physician noted that she was positive for "Leriche's Syndrome" which is a term for a group of symptoms caused by peripheral artery disease of the legs. In November 1988 the Veteran was referred to another physician from her chiropractor who suspected that the Veteran had a bilateral vascular disorder of her legs. Shortly after, the Veteran was first diagnosed with an occluded infrarenal aorta, and occlusive/peripheral vascular disease (OPVD) of both legs. The Veteran was afforded VA medical examinations in April 2016 and July 2021. Additionally, she has submitted medical opinions from the private physicians that have provided treatment for her lower extremity disorders, including during the 1980s. The April 2016 examiner provided an extensive opinion addressing the nature and etiology of the Veteran's bilateral lower extremity peripheral arterial disorders. The examiner performed an in-person examination and reviewed the Veteran's available medical and service records. The examiner opined that the Veteran's bilateral lower extremity peripheral arterial disorders were less likely than not related to her active-duty service either directly or on a secondary basis via another service-connected disability. The examiner noted the that the Veteran's service records showed treatment for swelling of her legs, however, the examiner wrote that this swelling was likely due to her foot disorders and did not represent signs of OPVD or any other vascular disorder of the lower extremities. The examiner stated that there was otherwise no evidence to support in-service onset of a vascular disorder of the legs. Next, the examiner discussed the Veteran's post-service medical records, noting that during the period prior to the Veteran's 1988 diagnosis of OPVD, that there was no evidence to counter their opinion that the Veteran's OPVD was less likely than not related to active-duty service. Th examiner also addressed the Veteran's 1988 fall, and opined that as an expert in trauma, her fall could not have contributed to or caused her bilateral lower extremity vascular disorder. The examiner further stated that the development of the Veteran's OPVD was due to routine arteriosclerosis and present comorbid factors, including high cholesterol, hypertension, and long-term tobacco use. Finally, the examiner opined that there was no evidence to support claims that the Veteran's OPVD was caused by or due to any potential exposure to herbicidal agents or contaminated water while she was stationed at Fort McClellan, noting that there is no confirmed basis for exposure there. The examiner did not provide an opinion regarding secondary service connection between the Veteran's bilateral feet disabilities and her OPVD. Additionally, the examiner did not discuss the proximity of the Veteran's 1988 fall to her diagnosis of bilateral lower extremity vascular disorders, which were only seven months apart. Next, the Veteran was provided with an examination in July 2021. The Veteran reported numbness in the bottom of both feet and into her toes with occasional sharp shooting pain in her feet and/or the feeling of pins and needles. The Veteran reported that her symptoms had gotten worse over time and that they had also become more constant. Finally, the Veteran stated that her bilateral lower extremity vascular disorder causes her to lose her balance because she cannot feel her feet. The examiner performed an in-person examination and reviewed the Veteran's claims file. The examiner opined that it was less likely than not that the Veteran's bilateral lower extremity vascular disorder was caused or aggravated by another service-connected disability including her right foot small toe removal, bilateral pes planus, bilateral hallux valgus, or left foot plantar warts. The examiner provided detailed opinions on why the Veteran's other service-connected disabilities would not cause her bilateral lower extremity vascular disorder discussing the separate etiologies of each disability in relation to bilateral lower extremity vascular disorder but did not provide similar opinions discussing aggravation. Moreover, the examiner did not discuss the previously raised theory that these disabilities could have caused the Veteran's 1988 fall which may have led to the development of her bilateral lower extremity vascular disorder. Finally, the examiner did not discuss the various private physician opinions that have been submitted on behalf of the Veteran's claims by several doctors. The Veteran submitted a private opinion from a doctor who performed a forensic examination of the Veteran's medical records. The physician noted that the Veteran likely had vascular problems while in service even though a specific diagnosis was not provided as evidenced by her unexplained foot swelling which is an early sign of vascular problems. Additionally, the physician noted that the Veteran's 1988 fall was likely due to her right foot disability, which was only recently addressed through a small toe amputation. The physician noted several articles and medical literature which supported their findings. In conclusion, the physician opined that the Veteran's 1988 fall was most likely the cause of her bilateral lower extremity vascular disorder and the evidence did not support any other cause. Two other private opinions are of record in the form of a medical opinion sought by the Colorado State Insurance Authority. In the first opinion, the examiner (Dr. V) noted that the Veteran's records indicate that she fell twice in 1988, first on ice, and the second on gravel (April fall). The examiner suggested that the fall did not have caused the Veteran's OPVD, and that it appeared that the Veteran's OPVD was in development for a long time. The next physician (Dr. Y) was the doctor who provided treatment for the Veteran's OPVD in 1988. The physician opined that the Veteran's fall likely exacerbated her OPVD. The physician further stated that they could not estimate the extent to which the fall caused or contributed to the development of her OPVD, however the physician also noted the relatively quick onset of the Veteran's symptoms following her fall in the same year. The Board has also considered the Veteran's statements regarding her bilateral lower extremity peripheral arterial disorder and finds them credible in making its determination. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). This includes the Veteran's recitation of her leg and foot swelling in service, as well as the subjective symptoms that she has sought treatment for since active-duty service and since her April 1988 fall. Taking all the evidence of record into account, the Board finds that the positive and negative evidence sits in relative equipoise and service connection for bilateral lower extremity peripheral arterial disorders are warranted. While the April 2016 and July 2021 VA examiners opined that the Veteran's bilateral lower extremity peripheral arterial disorders were less likely than not related to active-duty service, including on a secondary basis, the opinion did not adequately address the Veteran's 1988 fall or her in-service symptoms. On the other hand, the evidence in favor of the Veteran's claim includes statements from physicians who treated her at the time of her initial diagnosis and April 1988 fall. The Veteran's credible statements regarding her claimed disorders are persuasive in finding that despite the lack of documented in-service diagnosis, that she may have had the initial symptoms of the disorders she now claims. Additionally, the fact that the Veteran's April 1988 fall and her diagnoses of severe peripheral vascular leg disorders (OPVD) only seven months later support the finding in the alternative that her claimed disorders were caused by her fall which was likely due to her service-connected foot disabilities. Accordingly, service connection should be granted to the Veteran for bilateral lower extremity peripheral arterial disorders, characterized as arteriosclerosis obliterans. Under the benefit of the doubt standard established by Congress, when the evidence is in relative equipoise, the law dictates the Veteran prevails. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. As such, the claim is granted. 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. REASONS FOR REMAND 3. Entitlement to a total disability rating based on individual unemployability (TDIU) As is addressed above, the Board has granted the Veteran's claim for service connection for bilateral lower extremity peripheral arterial disorders, characterized as arteriosclerosis obliterans. Because ratings assigned the result of those grants may have a direct impact on the Veteran's schedular entitlement to TDIU, the Board cannot fully address that issue until such ratings are assigned. Therefore, the Board will remand this issue to allow the RO to assign ratings for the issues granted, as ordered above, and reconsider entitlement to TDIU. The matters are REMANDED for the following action: After the RO has assigned disability ratings for the above granted claims, the RO should readjudicate the Veteran's claim for TDIU. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor