Citation Nr: 21071868 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 20-07 682 DATE: December 1, 2021 ORDER Entitlement to service connection for vascular disease, to include abdominal aortic aneurysm and bilateral lower extremity aneurysm is denied. FINDING OF FACT The Veteran's vascular disease, to include abdominal aortic aneurysm and bilateral lower extremity aneurysm was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology has not been shown; and the disability is not otherwise etiologically related to an in-service injury, event or disease, to include as due to Agent Orange exposure. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for vascular disease, to include abdominal aortic aneurysm and bilateral lower extremity aneurysm have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1959 to August 1985, with service in Vietnam from July 1970 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been previously remanded on multiple occasions, to include most recently in May 2021. At that time, an updated VA examination was deemed necessary as the January 2021 examiner failed to address the specific questions posed in the previous Board remand; namely, whether it is at least as likely as not the Veteran's peripheral vascular disease had its onset in service or is otherwise related to service, or whether the condition is presumptively related to herbicide exposure. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Presumptive Service Connection - Herbicide Exposure Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309 (e) shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). For early-onset peripheral neuropathy, the presumptive service connection is warranted if the disorder manifested to a degree of 10 percent or more within one year after the Veteran's last exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is to say, the Agent Orange presumption does not preclude a veteran from establishing direct service connection with proof of actual direct causation. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (a), 3.304 (2020). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2020). 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. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for vascular disease, to include abdominal aortic aneurysm and bilateral lower extremity aneurysm The Veteran contends that his vascular disease is causally related to active service, to include as due to exposure to herbicides or herbicide agents. As discussed in more detail below, the preponderance of the evidence is against his claim. According to military personnel records, the Veteran's period of service included tours of duty in the Republic of Vietnam, Korea, and Germany. His official military occupation included an Electronics Mechanic and Air Defense Artillery Senior Sergeant. For his exemplary service, the Veteran received multiple awards to include the National Defense Service Medal, Vietnam Service Medal, and the Purple Heart. As such, Agent Orange exposure is conceded. See 38 U.S.C. §§ 1116, 1154 (2012). While exposure to herbicides is conceded, the Board concludes that the Veteran's current diagnosis abdominal aortic aneurysm status post (s/p) repair and peripheral vascular disease in the bilateral legs did not have its onset in-service, within the one-year presumptive period, and is not otherwise casually related to active service, to include as due to in-service Agent Orange exposure. Service treatment records indicate that no disqualifying defects were observed on physical examination at enlistment in August 1959. One month later, in September 1959, the Veteran was treated for leg cramps. Years later, he was evaluated following a non-poisonous snake bite in January 1971. In a statement of medical examination, bearing the same date, the injury was deemed unlikely to result in a claim for future medical care. At separation, no disqualifying defects were identified on physical examination in August 1985. However, the Veteran endorsed leg cramps and foot trouble in a report of medical history bearing the same date. In an attachment, he reported an onset of lower extremity cramping when the legs were held in one position for extended periods and bouts with jungle root on the bilateral feet, while stationed in Vietnam. Post-service treatment records confirm a current diagnosis of bilateral lower extremity vascular disease. In July 2015, a vascular study revealed mild peripheral vascular disease in the bilateral legs. The Veteran was advised to discontinue smoking. One month later, in August 2015, a nursing note indicated that the Veteran underwent surgical repair of two aneurysms at Huntsville Hospital. A Computed Tomography (CT) angiography, dated the same month, revealed extensive peripheral vascular disease of both lower extremities with occlusion of segments of the anterior and posterior tibial arteries on the right and the posterior tibial and dorsalis pedis arteries on the left. Other findings include atherosclerotic plaque throughout the abdominal aorta, bilateral popliteal artery aneurysms, and small bilateral common femoral artery aneurysms. In his substantive appeal, dated February 2020, the Veteran reported an onset of vascular problems upon completion of a tour in the Republic of Vietnam. He contends that he was exposure to Agent Orange and received multiple profiles until separation. On examination in March 2020, a current diagnosis of arteriosclerotic heart disease was indicated. Following the clinical interview, the examiner opined that the Veteran's current diagnosis of arteriosclerotic heart disease was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, to include as due to AO exposure. In support of the stated conclusion, the examiner indicated the Veteran had not been diagnosed with ischemic heart disease. His condition was caused by atherosclerosis which is not presumptive for herbicide agent exposure. Further, there is no clinical evidence of a cardiac condition or related complaints of symptoms during active duty. Pursuant to a September 2020 Board decision, the Veteran's claim was remanded to obtain an additional etiology opinion. The Veteran underwent another VA examination in January 2021. The examiner noted a diagnosis of abdominal aortic aneurysm s/p (status post) repair and indicated it is likely developed due to multiple factors to include his hypertension, history of smoking, and genetic factors. Additionally, the examiner concluded that there is no medical evidence that the Veteran's abdominal aortic aneurysm was causally related to active service, to include as due to Agent Orange exposure. In an addendum opinion, the examiner also noted there is no objective evidence that the Veteran has a heart condition. During the clinical interview, he denied any history of related treatment. Thus, a nexus has not been established. Again, in May 2021, the Veteran's claim was remanded for an addendum opinion. Specifically, the Board decision noted that the specific questions posed in the previous Board remand, namely, whether it is at least as likely as not the Veteran's peripheral vascular disease had its onset in service or is otherwise related to service, or whether the condition is presumptively related to herbicide exposure. On subsequent examination in September 2021, current diagnoses included abdominal aortic aneurysm s/p repair, right lower extremity peripheral vascular disease s/p bypass graft and left lower extremity peripheral vascular disease. During the clinical interview, the Veteran reported symptom worsening. Due to his current symptoms, he experiences claudication on walking up to 100 yards on a level grade at 2 miles per hour, with persistent coldness of the bilateral lower extremities. No post-surgical residuals were identified. Occasional use of a cane was acknowledged. The Veteran listed a functional impact as difficulty with prolonged standing and walking. Following the clinical evaluation, the examiner opined that it is less likely as not (less than a 50 percent probability) that the Veteran's vascular disease had its onset in or is otherwise casually related to active service, to include as due to herbicide agent exposure therein. In support of the stated conclusion, the examiner noted that the Veteran's conditions are not considered presumptive diseases associated with Agent Orange exposure. Moreover, no current diagnosis of ischemic heart disease has been rendered at any time during the appeal period. The Veteran's vascular conditions were likely caused by atherosclerosis. Atherosclerosis is not associated with Agent Orange. Thus, it is also less likely than not (less than 50 percent probability) that these conditions were incurred in or causally related to active service. In support of the stated conclusion, the examiner acknowledged the Veteran's subjective belief that his abdominal aortic aneurysm s/p repair and peripheral vascular disease of the bilateral lower extremities are casually related to a heart condition. However, service treatment records are silent for a cardiac condition in service, immediately after separation or prior to the initial diagnosis of abdominal aortic aneurysm. In fact, the Veteran has not been diagnosed with ischemic heart disease or any other heart condition. Similarly, while the Veteran contends that he experienced symptoms of vascular disease upon his return for Vietnam, no complaints of symptoms were documented in service treatment records or for many years thereafter. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Generally, the Veteran is presumed competent to report on the onset of current symptoms, their impact on daily living and employment, and such reporting is deemed credible. However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the instant case, there is no evidence that Veteran possesses the required training to render a diagnosis or opine as to the etiological origins of such a diagnosis. To the extent his statements may be competent, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Here, the Veteran has been afforded multiple VA examinations. At no time has his abdominal aortic aneurysm s/p repair and peripheral vascular disease of the bilateral lower extremities been associated with active service, to include as to Agent Orange exposure. Moreover, while the Veteran has suggested a correlation to a heart condition, no such diagnosis as ever been rendered. As the preponderance of the evidence weighs against a nexus between the Veteran's vascular disease, to include abdominal aortic aneurysm and bilateral lower extremity aneurysm and active service, to include as due to Agent Orange exposure, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.