Citation Nr: 21006951 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-53 061 DATE: February 8, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for residuals of a below-the-knee amputation on the right is remanded. Entitlement to a rating greater than 10 percent for residuals of a cerebrovascular accident (CVA) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The competent, probative evidence of record does not show that the Veteran’s hypertension began in service, within one year of service, or is otherwise related to service. 2. Peripheral neuropathy of the left lower extremity was not present during the Veteran’s period of active service, or for more than a year thereafter; and the preponderance of the evidence is against finding that it is related to active service. 3. The preponderance of the evidence weighs against finding a current diagnosis of peripheral neuropathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 2. The criteria for service connection for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 3. The criteria for service connection for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1965 to December 1968, November 1974 to February 1977, and February 1977 to November 1991. See DD Forms 214 Certificate of Release or Discharge From Active Duty. In April 2019, the Veteran was afforded a hearing before the Board, and a transcript has been associated with the record. See April 2019 Hearing Transcript. This appeal was advanced on the docket (AOD) based on financial hardship, as requested at the hearing. 38 U.S.C. § 7107(a)(2). In August 2019, the Board remanded the appeal in order to obtain VA examinations, which were obtained in December 2019 such that there has been substantial compliance with the remand directives for the issues decided herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board’s remand instructions); see August 2019 BVA Decision; see December 2019 VA Examination Medical Opinion Disability Benefits Questionnaire. Notably, in the August 2019 decision, which findings are incorporated herein, it was determined that the Veteran was not exposed to herbicide agents in service. See August 2019 BVA Decision. As an initial matter, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). The Veteran’s acquired psychiatric disorder, Schmorl’s nodes of disc spaces of the lumbosacral spine, and CVA with mild left hemiparesis are service connected. See September 2020 Rating Decision-Codesheet. Evidence of record indicates that the Veteran’s service-connected disabilities may have impacted his ability to work. Specifically, in a January 2020 VA examination report, the Veteran reported that he had not worked since 2010, and received disability for having his leg amputated. See January 2020 VA Examination Mental Disorders (other than PTSD and Eating Disorders) - DSM V Disability Benefits Questionnaire. The examiner concluded that due to service-connected medical ailments, to include from his CVA, the Veteran was no longer able to perform social and occupational activities in a manner that he once was able to. Id. As such, entitlement to a TDIU is before the Board on appeal. The Board notes that since the issuance of a September 2020 supplemental statement of the case (SSOC), additional VA treatment records have been added to the Veteran’s claims file. See December 2020 CAPRI. However, these records are not relevant to the issues on appeal. Thus, the Board has concluded that it may proceed with appellate consideration of these issues without prejudice to the Veteran. See 38 C.F.R. § 19.31. Service Connection 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 be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), to include hypertension, and other organic diseases of the nervous system (such as peripheral neuropathy), if manifested to a compensable degree within one year from the date of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for hypertension The Veteran contends that he is entitled to service connection for hypertension. See January 2012 VA 21-526b, Veteran’s Supplemental Claim. In order to substantiate his claim, the Veteran can demonstrate his entitlement if he satisfies the provisions for either direct, presumptive, or secondary service connection. Direct Service Connection The claim for service connection for hypertension on a direct basis is denied. The evidence of record does not establish the nexus element for service connection for this disability. The Veteran has a current disability of hypertension. Specifically, the December 2019 VA examiner noted that the Veteran developed hypertension, and VA and private treatment records include recommendations for managing hypertension. See December 2019 VA Medical Opinion Disability Benefits Questionnaire; see November 2009 Medical Treatment Record-Non-Government Facility; see August 2018 VA Medical Treatment Record-Government Facility. As to the second prong of service connection, it appears that the Veteran had elevated blood pressure readings while in service. Given such, the second prong of service connection has been satisfied. As to the nexus element of service connection, the Board finds that it has not been established. Specifically, VA and private treatment records do not include etiological opinions. See November 2009 Medical Treatment Record-Non-Government Facility; see August 2018 VA Medical Treatment Record-Government Facility. In December 2019, based on record review and examination, the VA examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. The examiner discussed the Veteran’s reports of elevated blood pressures while in service, but noted there were no persistent elevations of blood pressures in service. Id. The examiner observed that the Veteran developed hypertension later, but based on record review, the Veteran’s current hypertension did not develop while in service, or manifest within one year after discharge from service, and was not noted during service with continuity of symptomatology since service, even considering the elevated blood pressure reading in the service treatment records. Id. The Veteran believes his hypertension is related to service. See January 2012 VA 21-526b, Veteran’s Supplemental Claim. To the extent the Veteran contends that his disability is related to service, he is not competent to determine the etiology of his hypertension, which requires the interpretation of complicated diagnostic medical testing, and in this case the Veteran has not shown he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2019 VA examiner’s opinion. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. There is no competent evidence that shows or suggests that the hypertension may be etiologically related to the Veteran’s service. Specifically, the VA examiner did not provide a diagnosis of hypertension in 2012, and the 2019 VA examiner indicated that the Veteran had current hypertension that did not manifest within one year after discharge from service, such that the weight of the medical evidence shows that the Veteran’s hypertension manifested more than a year after his separation from service. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. Notably, the Veteran is competent to report his elevated blood pressure readings in service, which have been considered by a VA examiner who is competent to opine as to the medical import of such readings in determining the etiology of the Veteran’s hypertension. See September 2010 Medical Treatment Record Orlando Health received January 2010 in Caseflow Queue; see December 2019 VA Medical Opinion Disability Benefits Questionnaire. However, in 2019 the VA examiner found that there were no persistent elevations of blood pressure while in service, and opined that even with elevated blood pressure in service it was not at least as likely as not the Veteran’s current hypertension was related to service. See December 2019 VA Medical Opinion Disability Benefits Questionnaire (emphasis added by BVA). The Board acknowledges the Veteran’s contentions that all his service-connected disabilities are due to his service in Okinawa, but as referenced below, the Board has determined that the competent, credible evidence of record is against a finding that the Veteran was exposed to herbicide agents in service. See August 2019 BVA Decision. As such, his service in Okinawa is adequately contemplated by the December 2019 VA examiner’s opinion regarding direct service connection. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. Presumptive Service Connection Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303 (b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, hypertension is a chronic disease listed in 38 C.F.R. § 3.309 (a). See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Here, presumptive service connection is also denied. The Veteran reported that he was diagnosed as having hypertension in 1990; however, the Veteran’s report is undermined by the December 2019 VA examination report, which shows elevated blood pressure in service, yet differentiates this from persistent elevated blood pressure readings, or a diagnosis of hypertension. See September 2010 Medical Treatment Record Orlando Health received January 2010 in Caseflow Queue; see December 2019 VA Medical Opinion Disability Benefits Questionnaire. This differentiation is important for consideration of entitlement to service connection; and, the Board finds the Veteran’s recall of his health history is inaccurate. As such, the Board finds the credibility of the statement that he had hypertension in service is undermined by the lack of corroborative evidence, in combination with the medical determination that his heightened blood pressure did not amount to hypertension. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Although the Veteran broadly claimed that his hypertension began in service, despite his prolific medical record, the Veteran has not reported that he has experienced observable symptoms related to hypertension in or since service. See September 2010 Medical Treatment Record Orlando Health, received January 2010. Even if he had, he is not competent to determine the medical etiology of his hypertension, when as here, such an etiology determination requires medical expertise, which the record does not show he has. Thus, chronicity and continuity of hypertension have not been established. See 38 C.F.R. § 3.159(a)(1) versus (a)(2); see King v. Shinseki, 700 F.3d 1339, 1345 (2012). There is no competent evidence that shows or suggests that the hypertension existed in service, had continuity of symptomatology since service, or manifested to a compensable degree within one year of service separation. Specifically, the VA examiner did not include a diagnosis of hypertension in 2012, and the 2019 VA examiner indicated that the Veteran had current hypertension that did not manifest within one year after discharge from service, such that the weight of the medical evidence shows that the Veteran’s hypertension manifested more than a year after his separation from service. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. The Veteran is competent to report his elevated blood pressure readings in service, which have been considered by a VA examiner who is competent to opine as to the medical import of such readings in determining etiology of the Veteran’s hypertension. See September 2010 Medical Treatment Record Orlando Health received January 2010 in Caseflow Queue; see December 2019 VA Medical Opinion Disability Benefits Questionnaire. Here, in 2019 the VA examiner found that there were no persistent elevations of blood pressure while in service. As such, the Veteran’s hypertension did not manifest during or within the year after his separation from service, and the evidence of record does not establish continuous symptomatology associated with his hypertension. He is therefore not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. Secondary Service Connection Insofar as the Veteran asserts that his hypertension is related to his nonservice-connected diabetes mellitus, the Board concludes that such assertion is without legal merit, as entitlement to secondary service connection presupposes the existence of an established service-connected disability. 38 C.F.R. § 3.310; see January 2012 VA 21-526b, Veteran’s Supplemental Claim. In its August 2019 decision, the Board denied service connection for diabetes mellitus, and service connection for hypertension is not warranted on a secondary basis without an underlying established service-connected disability. See August 2019 BVA Decision. Finally, as the Veteran’s representative suggests that the hypertension is related to his service-connected disabilities, and related confinement to a wheelchair, the Board concludes that such assertion is too general and conclusory, and is not sufficient to provide the requisite indication of an etiological or aggravating relationship to trigger VA’s duty to assist to provide an examination. See November 2020 Appellate Brief; 38 U.S.C. § 5103A(d)(2)(B) (2020), 38 C.F.R. § 3.159(c)(4)(i)(C) (2020); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). There is no competent evidence to support a claim of entitlement to service connection for hypertension under the provisions of 38 C.F.R. § 3.310 (2020). In reaching the conclusions stated above, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102 (2019); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity Direct Service Connection The Veteran contends that he is entitled to service connection for peripheral neuropathy of the left lower extremity. See January 2012 VA 21-526b, Veteran’s Supplemental Claim. In order to substantiate his claim, the Veteran can demonstrate his entitlement if he satisfies provisions for direct, presumptive, or secondary service connection. The claim for service connection for peripheral neuropathy on a direct basis is denied. The evidence of record does not establish the nexus element for service connection for this disability. VA examinations show the Veteran has a current disability of peripheral neuropathy of the left lower extremity. See April 2012 VA Examination, Artery and Vein Conditions (Vascular Disease including Varicose Veins) Disability Benefits Questionnaire; see December 2019 VA Medical Opinion Disability Benefits Questionnaire. Given such, the first element of service connection has been satisfied. As to the second element of service connection, at an April 2012 VA examination, the Veteran reported that he had elevated blood sugar and diabetes in approximately 1991, with numbness and tingling in both feet and legs beginning soon after. See April 2012 VA Examination, Artery and Vein Conditions (Vascular Disease including Varicose Veins) Disability Benefits Questionnaire. May 2013 VA examiner noted service treatment records were silent for objective findings consistent with peripheral neuropathy. See May 2013 VA Compensation and Pension Examination Report. In May 2013, following record review to include the April 2012 examination, a VA examiner opined that the etiology for the Veteran’s peripheral neuropathy was most likely his diabetes, noting that the service treatment records were silent for objective findings consistent with peripheral neuropathy. See May 2013 VA Compensation and Pension Examination Report. The examiner concluded that the sensory disturbance following the Veteran’s CVA resolved by the time of his August 1991 examination, and the current pattern of distribution did not correspond to that expected from a CVA. Id. As such, the examiner opined that there was no current objective evidence that the Veteran’s current peripheral neuropathy was caused or aggravated to any degree by either his service, or his CVA. Id. The December 2019 VA examiner opined that diabetic neuropathy in the left lower leg developed in 2014, and the Veteran’s diabetic peripheral neuropathy was related to the diabetes he developed in 2003, such that it was not related to anything from service. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. The examiner concluded that the Veteran’s diabetic peripheral neuropathy of the left lower extremity was less likely than not incurred in or caused by in-service illness, event or injury, even considering the Veteran’s reports of in-service numbness and tingling in his lower extremities. Id. There is no competent evidence that shows or suggests that the left lower extremity peripheral neuropathy may be etiologically related to his service. The Veteran is competent to report his numbness and tingling in service, which have been considered by a VA examiner who is competent to opine as to the medical import of such symptoms in determining the etiology of the Veteran’s left lower extremity peripheral neuropathy. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Here, the 2019 VA examiner found that the left lower extremity peripheral neuropathy resulted from the Veteran’s diabetes, and was diabetic peripheral neuropathy, not related to anything from service. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. To the extent the Veteran contends that his disability is related to service, he is not competent to determine the etiology of his peripheral neuropathy, because it is medically complex requiring expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Additionally, there is no objective medical evidence of record suggesting that this disability had its onset in, or is otherwise related to his military service. Because the nexus element of direct service connection has not been demonstrated, the claim for entitlement to service connection for peripheral neuropathy on a direct basis is denied. ‘ The Board acknowledges the Veteran’s contentions that all his service-connected disabilities are due to his service in Okinawa, but as referenced in the introduction, the Board has already determined that the competent, credible evidence of record is against a finding that the Veteran was exposed to herbicide agents in service. See August 2019 BVA Decision. As such, his service in Okinawa is adequately contemplated by the December 2019 VA examiner’s opinion regarding direct service connection. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. Presumptive Service Connection Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303 (b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, peripheral neuropathy is a chronic disease listed in 38 C.F.R. § 3.309 (a). See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Here, presumptive service connection is also denied. The April 2012 VA examiner opined, based on the Veteran’s reported history without record review, that the peripheral neuropathy of the lower extremities began in 1992. See April 2012 VA Examination, Artery and Vein Conditions (Vascular Disease including Varicose Veins) Disability Benefits Questionnaire. This opinion is discounted where a May 2013 VA opinion was provided following record review, and wherein it was concluded that the Veteran’s service treatment records were silent for objective findings consistent with peripheral neuropathy. See May 2013 VA Compensation and Pension Examination Report. Further, in the December 2019 VA examination report the Veteran only had a four to five-year history of paresthesia and numbness involving his left foot, which was consistent with diabetic neuropathy. See December 2019 VA Examination Peripheral Nerves Conditions (Not Including Diabetic Sensory Motor Peripheral Neuropathy) Disability Benefits Questionnaire. It was noted that he used a wheelchair, cane and walker. Id. The examiner opined that diabetic neuropathy in the left lower leg developed in 2014, and the Veteran’s diabetic peripheral neuropathy was related to the diabetes he developed in 2003. The examiner concluded that the Veteran’s diabetic peripheral neuropathy of the left lower extremity was less likely than not manifested within one year after discharge from service, or noted during service with continuity of the same symptomatology since service, even considering the Veteran’s reports of in-service numbness and tingling in his lower extremities. Id. The weight of the medical evidence, particularly the December 2019 VA examination report, shows that the Veteran’s left lower extremity peripheral neuropathy manifest many years after his separation from service. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. Based on the record, even with reported numbness and tingling, peripheral neuropathy was not noted in service, and the Veteran’s peripheral neuropathy did not manifest during or within the year after his separation from service, and the evidence of record does not establish continuous symptomatology associated with his peripheral neuropathy. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. He is therefore not entitled to service connection on a presumptive basis. Secondary Service Connection Insofar as the Veteran asserts that his peripheral neuropathy is related to his nonservice-connected diabetes mellitus, the Board concludes that such assertion is without legal merit, as entitlement to secondary service connection presupposes the existence of an established service-connected disability. 38 C.F.R. § 3.310; see January 2012 VA 21-526b, Veteran’s Supplemental Claim. In its August 2019 decision, the Board denied service connection for diabetes mellitus, and service connection for peripheral neuropathy is not warranted on a secondary basis. See August 2019 BVA Decision. Finally, the Veteran’s representative suggests that the peripheral neuropathy is related to the Veteran’s service-connected disabilities, and related confinement to a wheelchair; however, the Board concludes that such assertion is too general and conclusory, and is not sufficient to provide the requisite indication of an etiological or aggravating relationship to trigger VA’s duty to assist to provide an examination. See November 2020 Appellate Brief; 38 U.S.C. § 5103A(d)(2)(B) (2020), 38 C.F.R. § 3.159(c)(4)(i)(C) (2020); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). There is no competent evidence to support a claim of entitlement to service connection for peripheral neuropathy of the left lower extremity under the provisions of 38 C.F.R. § 3.310 (2020). In reaching the conclusions stated above, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102 (2019); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity The Veteran contends that he is entitled to service connection for right lower extremity peripheral neuropathy. See January 2012 VA 21-526b, Veteran’s Supplemental Claim. In order to substantiate his claim, the Veteran can demonstrate his entitlement if he satisfies provisions for direct, presumptive, or secondary service connection. Direct Service Connection The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current disability of right lower extremity peripheral neuropathy, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The April 2012 VA examiner discussed right phantom limb pain and diabetic distal sensory peripheral neuropathy to the right lower extremity, opining that the Veteran’s distal sensory peripheral neuropathy resulted from his diabetes. See VA Examination, Diabetic Sensory Motor Peripheral Neuropathy Disability Benefits Questionnaire. The examiner indicated that it would be mere speculation to opine as to the precise decree of contribution from each of the Veteran’s phantom lumb neurogenic pain status-post right lower leg amputation, and his current right leg lower extremity neurogenic peripheral neuropathy pain. Id. This examiner did not have access to the claims folder, such that an addendum opinion was sought based on record review, to include the April 2012 VA examination. As such, this examiner’s opinion is not provided probative value as to establishing a current disability. Following remand, in December 2019 the VA examiner noted the Veteran had a right below-the-knee amputation in November 2010 because of peripheral arterial disease, and experienced mild phantom pain in his right stump, which was stable. See December 2019 VA Examination Peripheral Nerves Conditions (Not Including Diabetic Sensory Motor Peripheral Neuropathy) Disability Benefits Questionnaire. The Board observes that the amputation was in fact in September 2010, with additional debridement of the wound in November 2010 although this date differentiation does not undermine the examiner’s reasoning, which depends on the existence of the below-the-knee amputation. See September 2010 Medical Treatment Record-Non-Government Facility, Orlando Health, received January 2010 in Caseflow; see November 2010 Medical treatment Record-Non-Government Facility, Orlando Health VNA Branch, received November 2010 in Caseflow. The VA examiner determined that the Veteran did not have a diagnosis of peripheral neuropathy of the right lower limb due to his right below-the-knee amputation. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. The examiner observed that the Veteran had reported mild phantom pain in his stump; however, this was stable, and considered to be fully encompassed within the diagnosis of right below-the-knee amputation, for which, the Board notes the Veteran is requesting separate service connection. Id. While the Veteran believes he has a current diagnosis of right lower extremity peripheral neuropathy, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret diagnostic tests. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, finding the December 2019 VA examination report, which clarified the earlier 2012 opinion, by differentiating mild phantom pain in the stump as opposed to actual peripheral neuropathy to be most probative. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. As such, the Veteran does not have a current disability of right lower extremity peripheral neuropathy, and his claim for entitlement to service connection for peripheral neuropathy of the right lower extremity must be denied. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board does not reach the prongs of in-service incurrence or nexus, causal relationship because the claim for direct service connection fails without a current disability. Similarly, the theories of presumptive service connection and secondary service connection presuppose the existence of an established disability, and without a current disability, are without legal merit. 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310. In reaching the conclusions stated above, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102 (2019); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea Pursuant to the August 2019 Board remand, the Veteran was provided a December 2019 VA examination for his sleep apnea. See August 2019 BVA Decision. The VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event of illness. See December 2019 VA Examination Sleep Apnea Disability Benefits Questionnaire; see April 2019 Hearing Transcript; see August 1991 STR Report of Medical History. The examiner discussed the Veteran’s in-service history of snoring and apnea, yet noted that the Veteran was not diagnosed as having sleep apnea until he had a positive sleep study in 2003. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. Based on the twelve-year time gap between discharge and positive sleep study, the examiner concluded he could not correlate the documented sleep apnea to the Veteran’s time in the service. Id. As such, the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by his service, to include his reported in-service symptomatology of snoring and pauses in breathing during sleep. Id. The Board observes however, that the examiner’s rationale is inadequate in that it relied solely on the passage of time between in-service symptoms and diagnosis of sleep apnea, but the mere passage of time without medical evidence of a disorder is not in these circumstances itself a valid basis for a negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Here, the import of the Veteran’s reports of difficulty sleeping, and his wife’s reports that the Veteran snored and stopped breathing during sleep continue to need discussion. See April 2019 Hearing Transcript; see August 1991 STR Report of Medical History. Although the examiner listed this information in the evidence, the analysis failed to discuss whether these were symptoms of his later diagnosed sleep apnea, rather the examiner concluded he could not “correlate” the sleep apnea to the Veteran’s time in service on the basis of the twelve-year gap between service and diagnosis. While the VA examiner could have discounted the lay statements for other reasons, simply citing the passage of time without further explanation is an inadequate reason. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, another opinion needs to be obtained for the examiner to accurately consider and address the Veteran’s medical history and render an opinion supported by adequate rationale regarding whether the Veteran’s sleep apnea is related to service, or caused or worsened by a service-connected disability. 2. Entitlement to service connection for residuals of below-the-knee amputation on the right In August 2019 the Board remanded the Veteran’s claim for entitlement to service connection for residuals of below-the-knee amputation on the right for a VA examination to consider whether his disability was secondary to service-connected disabilities. See August 2019 BVA Decision. In December 2019 the VA examiner opined that the Veteran’s right below-the-knee amputation was performed in 2010, due to arterial insufficiency, and had nothing to do with any numbness or tingling in his legs, or anything else, from service. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. The Veteran’s right blow-the-knee amputation was less likely than not incurred in or caused by the in-service illness, event or injury. Id. The examiner opined that it was also less likely than not manifest within a year from service, or noted during service with continuity of the same symptomatology since service, even considering the Veteran’s reports of numbness and tingling in his lower extremities during service. Id. The examiner then considered the secondary claim to the Veteran’s service-connected lumbar spine disability, and noted that the right-below-the-knee amputation was caused by arterial insufficiency that began around 2000, and this arterial insufficiency simply could not be related to Schmorl’s nodes of the lumbosacral spine because there was no correlation. See December 2019 VA Medical Opinion Disability Benefits Questionnaire. The examiner explained that arterial insufficiency is caused by the Veteran’s smoking and hyperlipidemia. Id. The examiner then opined that it was less likely than not the Veteran’s right below-the-knee amputation, with reported phantom limb pain since 2010 was aggravated beyond its natural progression by the Schmorl’s nodes in the disc spaces of the lumbosacral spine. Id. The examiner provided the same reasoning to support his conclusions that it was less likely than not the below-the knee amputation with phantom limb pain was related to, or aggravated beyond its natural progression by service-connected residuals of CVA and service-connected anxiety disorder. Id. Here, the Board specifically requested a secondary service-connected opinion in the August 2019 remand, and as such there is a duty to ensure the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner did not provide reasoning to support the aggravation prong of his opinion, and as such remand to obtain an adequate opinion is necessary. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Veteran’s representative has specifically brought up the contention that being wheelchair bound as a result of service-connected lumbar spine and residuals of CVA disabilities has deteriorated the Veteran’s health, and the Board would find it beneficial for an examiner to discuss this in providing the secondary opinion, particularly in the aggravation prong. See 38 C.F.R. § 3.310. The Board notes that secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233 (2019). 3. Entitlement to an increased rating for residuals of CVA The Veteran’s CVA residuals are rated under 38 C.F.R. § 4.124a, DC 8008. DC 8008 provides for a 100 percent disability rating for 6 months from the onset of the disability, with residuals of the disability thereafter rated at a minimum of 10 percent disabled. For the minimum ratings for residuals under diagnostic codes 8000-8025, there must be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. 38 C.F.R. § 4.124a, Diagnostic Code 8008, Note. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. Id. Here, the Veteran filed a claim in November 2011 and listed vascular disease, which he then clarified in January 2012 was a claim for increase for CVA with mild left hemiparesis claimed as vascular disease. See November 2011 VA 21-526b,Veteran’s Supplemental Claim for Compensation; see January 2012 VA 21-0820 Report of General Information. As such, the appeal period is from November 2010, one year prior to the increased rating claim. Here, the Board notes that medical records show that the Veteran suffered a new stroke in December 2016. See December 2016 Florida Hospital. Additionally, in January 2019 the Veteran sought treatment for left brachial arterial embolus requiring vascular embolectomy, and the vascular surgeon concluded that CVA still could not be completely ruled out, but was not supported by studies. See January 2019 Medical Treatment Records- Government Facility. Pursuant to the Board remand, the Veteran was afforded a VA examination for residuals of CVA in December 2019; however, the examiner noted only that the Veteran claimed to have had a stroke in 2016, without further discussing the impact of this more recent stroke, and did not conclude whether the Veteran had a CVA in 2019. See August 2019 BVA Decision; see December 2019 VA Examination Peripheral Nerves Conditions (Not Including Diabetic Sensory Motor Peripheral Neuropathy) Disability Benefits Questionnaire; see December 2016 Florida Hospital. Further, although the April 2012 VA examination showed decreased left-hand grip strength as a CVA residual, the 2019 VA examiner did not comment on its import. See April 2012 VA Examination Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaire. As such, the Board finds the December 2019 VA opinion is based on an incomplete factual basis, and therefore inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, remand for another VA opinion is necessary. Id. The RO should consider whether the Veteran has suffered a new embolism, thrombosis, or hemorrhage during the appeal period from November 2010, warranting another six-month total rating. Specifically, the RO’s attention is brought to the Veteran’s December 2016 CVA. See December 2016 Florida Hospital. 4. Entitlement to a TDIU Remand is warranted to allow the AOJ to conduct additional development as, to date, the AOJ has not conducted any development to obtain information about the details and duration of the Veteran’s most recent employment, his earnings history, his qualifications for other employment opportunities, or his education and prior work experience. Further, as the matter of TDIU is inextricably intertwined with the increased rating claim being remanded, a remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any unassociated pertinent medical records, whether VA or private, including records from: Orlando VAMC since December 2020; Vascular Specialists of Central Florida since November 2010; Orlando Health since September 2010; and Genesis Medical Records since January 2007. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. Send the Veteran the appropriate notice as to how to substantiate a claim for TDIU, and provide him with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. Specifically, request information about the details and duration of his most recent employment, his earnings history, his qualifications for other employment opportunities, or his education and prior work experiences. 3. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an examination. After completing the above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician. The entire claims file must be provided to, and reviewed by, the examiner. Any indicated studies or evaluations should be performed. The examiner is requested to opine as to: I. whether the Veteran’s sleep apnea is at least as likely as not (50 percent or greater): (A) related to service, to include his in-service reported difficulty sleeping, snoring and apneic episodes (B) proximately due to service-connected lumbar spine disability (C) underwent any incremental increase in disability, regardless of its permanence, due to service-connected lumbar spine disability (D) proximately due to service-connected residuals of CVA (E) underwent any incremental increase in disability, regardless of its permanence, due to service-connected residuals of CVA (F) proximately due to service-connected psychiatric disability (G) underwent any incremental increase in disability, regardless of its permanence, due to any service-connected psychiatric disability. The examiner must provide a complete rationale for each opinion proffered. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner should consider the Veteran’s wheelchair confinement resulting from service-connected disabilities in determining to what extent, if any, this causes or aggravates the Veteran’s sleep apnea. II. Whether the Veteran’s below-the-knee amputation on the right with phantom limb pain is at least as likely as not: (A) proximately due to service-connected lumbar spine disability (B) underwent any incremental increase in disability, regardless of its permanence, due to service-connected lumbar spine disability (C) proximately due to service-connected residuals of CVA (D) underwent any incremental increase in disability, regardless of its permanence, due to service-connected residuals of CVA (E) proximately due to service-connected psychiatric disability (F) underwent any incremental increase in disability, regardless of its permanence, due to service-connected psychiatric disability. The examiner must provide a complete rationale for each opinion proffered. The examiner should consider the Veteran’s wheelchair confinement resulting from service-connected disabilities in determining to what extent, if any, this causes or aggravates the Veteran’s residuals of below-the-knee amputation on the right. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. III. The current severity of residuals of the Veteran’s CVA. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should describe the nature and severity of all manifestations from the CVA(s), and related functional impairment resulting from such disability. (A) the examiner should review all medical records pertaining to the Veteran’s CVA and residuals, especially noting the Veteran’s more recent CVA in 2016, and considering whether there was a CVA in 2019. (B) the examiner is specifically requested to comment on the Veteran’s reported and documented decreased left- hand grip strength. The examiner must provide a complete rationale for each opinion proffered. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.