Citation Nr: 21021616 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-30 548 DATE: April 13, 2021 ORDER Entitlement to service connection for peripheral vascular disease, to include as secondary to hypertension is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s peripheral vascular disease is not secondary to service-connected hypertension or hypertensive heart disease, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for peripheral vascular disease to include as due to service or service-connected hypertension or hypertensive heart disease are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1985 to January 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board. In an August 2018 decision, the Board denied service connection for sleep apnea and remanded the claim of service connection for peripheral vascular disease for further development. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Order, the Court granted a Joint Motion for Remand (JMR) of the parties and vacated the Board’s denial of the issue identified above and remanded it to the Board for action consistent with the Joint Motion. Pursuant to the JMR, the Board remanded the claim of service connection for sleep apnea in a February 2020 decision. Service Connection Service connection may be established for a disability resulting from diseases or injuries that are clearly present in service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for a disability diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303. In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for peripheral vascular disease, as secondary to hypertension and hypertensive heart disease The Veteran contends that his peripheral vascular disease was caused or permanently aggravated beyond its natural progression by his service-connected hypertension and hypertensive heart disease. See April 2013 claim letter. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. 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. The question for the Board is whether the Veteran has peripheral vascular disease that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected hypertension or hypertensive heart disease. The Board concludes that, while the Veteran has a diagnosis of bilateral lower extremity peripheral vascular disease, the preponderance of the evidence is against finding that the Veteran’s peripheral vascular disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected hypertension or hypertensive heart disease. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The November 2013 VA examiner opined that the Veteran’s peripheral vascular disease is less likely than not due to or the result of hypertension. The examiner reasoned that the risk factors for the development of chronic venous disease include advancing age, family history of venous disease, ligamentous laxity (hernia, flat feet), prolonged standing, increased body mass index, smoking, sedentary lifestyle, lower extremity trauma, prior venous thrombosis (superficial or deep), the presence of an arteriovenous shunt, some hereditary conditions, high estrogen states. The examiner further explained that this Veteran’s risk factors include increased body mass index and sedentary lifestyle, and that he denied limb aching, heaviness and swelling, itching or significant edema, skin changes or ulceration. The examiner noted that on physical exam, the skin of the lower extremities was warm and pulses palpable and strong, normal skin turgor and texture. The Board remanded the Veteran’s claim in August 2018 for an addendum VA opinion, because the November 2013 VA examination did not include an opinion regarding aggravation. The Veteran was afforded another VA examination in October 2019. The examiner opined that the Veteran’s peripheral vascular disease is less likely than not caused or aggravated by hypertension or hypertensive heart disease. It was reasoned that there is no objective medical literature evidence to support such a causal relationship. Specifically, the examiner explained that there is no mechanism of action for cause or permanent aggravation beyond natural progression of the Veteran’s bilateral lower extremity varicose veins (peripheral vascular disease- venous) being proximately due to or the result of his hypertension and hypertensive heart disease. The examiner noted that the Veteran’s history of smoking would be considered a risk factor. The examiner also noted the list of risk factors for development of chronic venous disease, to illustrate that hypertension and hypertensive vascular disease are not risk factors. The Board finds the October 2019 VA examination to be probative because it is based on an accurate understanding of the Veteran’s medical history and current treatment, and because it is supported by an appropriate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The Board further notes that there is no competent contrary medical opinion of record. The Veteran believes his peripheral vascular disease is proximately due to or the result of or aggravated beyond its natural progression by service-connected hypertension or hypertensive heart disease. The Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed peripheral vascular disease etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). To the extent that the Veteran himself contends that a medical relationship exists between his claimed current peripheral vascular disease and a service-connected disability, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that peripheral vascular disease is not a disability subject to lay diagnosis as this diagnosis requires medical training. Consequently, the Board gives more probative weight to the October 2019 VA opinion. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for peripheral vascular disease as secondary to hypertension and/or hypertensive heart disease. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. In the February 2020 remand, the Board noted that the Veteran had reported that his body was covered in hazardous waste on August 27, 1992, which caused respiratory problems. The Board requested an opinion addressing whether it is at least as likely as not that any currently present obstructive sleep apnea is etiologically related to the Veteran’s active service, to specifically include in-service exposure to environmental hazards in August 1992. A VA opinion was obtained in July 2020. The VA examiner opined that the sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner stated that: Obstructive sleep apnea is an anatomical condition in which the structures of the upper airway relax/prolapse during sleep. This results in temporary occlusion of the airway. There is no credible medical evidence to support a causal link between the anatomical condition of OSA and exposure in the Gulf. The Veteran’s service treatment records reflect that in August 1992 he spilled diesel fuel, an environmental hazard exposure while he was stationed in Fort Polk, Louisiana. As the opinion rationale refers to “exposure in the Gulf,” the examiner did not specifically address the Veteran’s diesel fuel exposure at Fort Polk in August 1992, as requested in the February 2020 remand. Therefore, the opinion is inadequate and the claim must be remanded for a new opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an opinion whether it is at least as likely as not that (50 percent or better probability) that any currently present obstructive sleep apnea is etiologically related to the Veteran’s active service, to specifically include in-service exposure to environmental hazards (diesel fuel) in August 1992 in Fort Polk, Louisiana. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Comninos, Georgio 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.