Citation Nr: 21008932 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-33 526 DATE: February 18, 2021 ORDER Entitlement to service connection for left lower extremity peripheral vascular disease, to include as secondary to service-connected disability, is denied. Entitlement to service connection for right lower extremity peripheral vascular disease, to include as secondary to service-connected disability, is denied. Entitlement to service connection for carotid artery disease, to include as secondary to service-connected disability,y is denied. REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded.   FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) are unremarkable for complaints of peripheral vascular disease (PVD) and/or carotid artery disease; there also is no clinical evidence of these diseases with a year of his discharge from service or even for more than two decades after his separation from service. 2. The most probative (meaning most competent and credible) evidence is against finding that he had PVD and/or carotid artery disease in service, or within a year of separating from service, or that these disabilities are otherwise etiologically related to an injury, an event, or a disease during his service, or causally related to, or aggravated by, his service-connected coronary artery disease (CAD). CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for bilateral (left and right) lower extremity PVD. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria also are not met for entitlement to service connection for carotid artery disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1970 to July 1973. The Veteran was scheduled for an August 2018 hearing; however, he cancelled it. Thus, the Board will proceed to adjudicating his claims. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), if a “chronic” disease according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is in receipt of service connection for CAD. He contends that his PVD and carotid artery disease are “directly related to” his CAD. (See July 2013 VA Form 21-0958) According to 38 C.F.R. § 3.310, service connection may be granted as well, on a secondary basis, for disability that is proximately due to, the result of, or aggravated by a service-connected disability – although in the instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). However, as discussed below, the Board finds that the most probative evidence of record is against a finding that the Veteran’s claimed disabilities are causally related to, or aggravated by, a service-connected disability – namely, by his CAD.   1. Entitlement to service connection for left lower extremity PVD AND 2. Entitlement to service connection for right lower extremity PVD The Veteran has been diagnosed with peripheral arterial disease (PAD), a form of PVD. But, the most probative evidence is against finding that his PAD/PVD is causally related to, or aggravated by, his service-connected CAD. A March 1998 Columbia Memorial Hospital Jacksonville cardiac catheterization record shows that, at the time, the Veteran had normal coronary anatomy “without any coronary artery disease [(CAD)].” A September 2004 Memorial Hospital Jacksonville (Memorial) record reflects that the Veteran had a right femoral popliteal bypass graft. A November 2004 Memorial record notes that, in November 2004 (so that month), he had an exploration of the right femoral and external iliac arteries, thromboendarterectomy, and thromboembolectomy of the right femoral-popliteal bypass graft. The record is unremarkable for any diagnosis of CAD. January 2008 Memorial records indicate the Veteran had not had any then recent cardiac followup because he did not get along with his physician since the physician had tried to get the Veteran to quit smoking. It was noted that the Veteran had a known PAD, status femoral-popliteal vasculopathy, and that he continued to smoke 1.5 packs per day, had smoked since he was 14 years old, and was at an extremely high risk of a coronary event and/or stroke but continued to smoke nevertheless. Another January 2008 Memorial record shows he had PAD and CAD. An April 2011 private record notes that, if the Veteran developed further symptoms, his right carotid may need stenting; it also was noted that he had been encouraged to stop smoking.   A March 2008 Baptist Medical Center record notes the Veteran had a history of lower extremity bypass in the past, and that a left lower extremity balloon angioplasty was done. Subsequent records continue to show treatment, to include bypass surgery. A March 2011 Memorial record reflects the Veteran “smokes 2 packs of cigars a day, is well aware of the association with [PVD] as long as smoking.” Thus, the clinical records show the Veteran is a chronic smoker, that he repeatedly has been encouraged to quit smoking owing to the consequences of it, and in this regard that there is an association between chronic smoking and PVD. These records do not tend to establish an association between PVD and CAD. An April 2013 VA examination report contains the opinion of the examiner that, based on review of medical record, medical literature and clinical experience, it is less likely as not that the Veteran’s PVD is caused by, or aggravated by, his CAD. The examiner pointed out, in pertinent part, that “[m]edical record shows [PVD] to lower extremities onset prior to CAD. Also, there is no research showing that CAD causes or aggravates [PVD].” Precedent opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of certain disorders. See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). And indeed, for a claim, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Not only is the most probative evidence against finding that the Veteran’s PVD is causally related to, or aggravated by, his CAD, but there is no competent and credible evidence of record suggesting this his PVD is otherwise related or attributable to his service. His service treatment records (STRs) are grossly unremarkable for suggestion of PVD – either in the way of a relevant subjective complaint or objective clinical finding such as a diagnosis, and his March 1973 Report of Medical Examination notes all systems were normal upon evaluation.   In a July 1973 Statement of Medical Condition, he affirmed there had been no change in his medical condition since the March 1973 examination. There also is no evidence of PVD until more than two decades after his separation from service, so well beyond the one-year presumptive “grace period” following conclusion of his service allowing for presumption this disease was incurred during his service. For these reasons and bases, service connection is not warranted for PVD of either lower extremity. Moreover, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to service connection for carotid artery disease, including as secondary to the CAD The Veteran contends that his service-connected CAD is the cause of his additionally claimed carotid artery disease, so this claim also is predicated on the notion of secondary service connection. The Veteran had an endarterectomy in March 2008 and a stent inserted in March 2012. A June 2012 DBQ contains the opinion of the examiner that, based on medical record review, medical literature and clinical experience, there is no research showing that CAD causes carotid stenosis or aggravates it. Thus, it is less likely as not that the Veteran’s carotid artery disease is secondary to his CAD. The Board also points out that carotid artery disease is not a disease warranting presumptive service connection according to 38 C.F.R. § 3.309(e), also there is no evidence that it manifested to compensable degree within a year of the Veteran’s discharge from service to invoke consideration of other presumptive provisions found in § 3.309(a), and there is no probative evidence otherwise relating or attributing this disease to his service – even as contemplated by § 3.303(d) when, as here, the initial diagnosis was not until some later time after service.   The Veteran’s STRs are unremarkable for complaints or diagnosis of carotid artery disease, and his March 1973 Report of Medical Examination reflects that all pertinent systems were normal. Moreover, his July 1973 Statement of Medical Condition affirms there had been no change in his medical condition since the March 1973 examination. Conclusion of claims for service connection The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his PVD and/or carotid artery disease, including in terms of whether related or attributable to anything that occurred during his time in the military or to his service-connected CAD. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). There is no probative (i.e., competent and credible) opinion with adequate rationale and review of the clinical records indicating it is as likely as not the Veteran’s claimed disabilities are related to his CAD. The most probative evidence is against finding that his CAD, or his service, caused his PVD and carotid artery disease or aggravates them. Thus, service connection for the PVD and carotid artery disease is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   REASONS FOR REMAND 4. Entitlement to service connection for bilateral hearing loss disability AND 5. Entitlement to service connection for tinnitus The Veteran has a current hearing loss disability for VA compensation purposes, meaning sufficient hearing loss according to 38 C.F.R. § 3.385 to be considered a ratable disability. See 2012 DBQ. His DD Form 214 shows that his military occupational specialty (MOS) was in armor reconnaissance, that he served in Vietnam from September 1970 to September 1971, and that he was awarded the Combat Infantryman Badge (CIB). Thus, noise exposure in service is conceded. However, his STRs are unremarkable for complaints of hearing loss or tinnitus, and his March 1973 Report of Medical Examination (more than a year after his return from Vietnam) includes audiology evaluation findings that his hearing acuity was normal. On a July 1973 Statement of Medical Condition, he affirmed there had been no change in his medical condition since the March 1973 examination. He separated from service in July 1973. There is no evidence in the next four decades noting problems with hearing acuity or complaints of tinnitus. A June 2012 VA DBQ indicates the Veteran cited military noise exposure from bazookas without hearing protection, but he also reported the following additional noise exposure since his service: construction noise for 17 years without hearing protection, warehouse for 13 years with and without hearing protection, speedboat noise without hearing protection, hunting without hearing protection, and 4-wheeling without hearing protection. The examiner ultimately found that it is less likely than not the Veteran’s current hearing loss disability and/or tinnitus are causally related to his service. The examiner’s rationale was based, in part, on the Veteran’s normal hearing upon separation from service with no significant threshold shift in service, that he did not report the onset of hearing loss or tinnitus in service, that he reported a gradual onset of hearing loss but could not state when his hearing loss and tinnitus began, and that the Institute of Medicine (IOM) Report on Noise exposure concluded there is no scientific support for “delayed onset” noise induced hearing loss weeks, months, or years after the exposure event. The examiner also noted that “only seldom does noise cause a permanent tinnitus without also causing hearing loss”. Thus, the current evidence of record is against a finding that service connection is warranted on a direct incurrence basis. In a precedent case, however, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) highlighted the apparently contradictory findings regarding “delayed-onset” hearing loss in the IOM report. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Specifically, the IOM report concludes, in part, that there is not sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicates “[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure”, and that “definitive studies to address this issue have not been performed.” The Board, consequently, is directing further development of this claim to address the holdings in McCray. Moreover, the June 2012 VA examination report also notes that the Veteran “takes hydrochlorothiazide and aspirin, potentially ototoxic medications.” His CAD is a service-connected disability, and it has been noted he takes aspirin for his heart (see July 2015 VA clinical record noting that he takes 81mg a day). Thus, because the examiner noted that aspirin is potentially an ototoxic medication, an opinion is needed on whether it is as likely as not the Veteran’s hearing loss and/or tinnitus are caused or aggravated by taking aspirin for his CAD. The Board did not find hydrochlorothiazide as one of his prescribed medications, but if it is prescribed for his CAD, an opinion also would be needed concerning whether it is as likely as not that it, too, is causing or aggravating his hearing loss and/or tinnitus.   Accordingly, these claims are REMANDED for the following action: Obtain a supplemental opinion to the June 2012 examination report for the Veteran’s hearing loss disability and tinnitus. The examiner should answer the following questions: (A) Does the Veteran take hydrochlorothiazide for his CAD? (B) Is it as likely as not (50 percent or greater probability) that medication, including asprin and/or hydrochlorothiazide (if confirmed), which the Veteran takes for his CAD caused or aggravates his hearing loss and/or tinnitus? If the examiner finds that it is as likely as not that the Veteran’s medication for his CAD aggravates (worsens) his hearing loss and/or tinnitus, the examiner should discuss the baseline severity of the hearing loss and/or tinnitus prior to any aggravation as it compares to the severity after aggravation, if any. In rendering opinions, the examiner should consider the pertinent evidence of record, to include: a.) the 2012 VA examination report noting the Veteran’s extensive post-service noise exposure; b.) the Veteran’s onset of hearing loss and tinnitus as best as can be determined; c.) the VA clinical records noting that the Veteran takes 81 mg. a day for his CAD; and d.) the dosage, duration, and first use of medication to treat CAD. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.