Citation Nr: 21024106 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-34 738 DATE: April 22, 2021 ORDER Entitlement to service connection for bilateral lower extremities femoral artery occlusion, to include as secondary to diabetes is granted. FINDING OF FACT The evidence as to whether the Veteran's bilateral lower extremities femoral artery occlusion has been aggravated by his service-connected diabetes mellitus is, at least, in relative equipoise. CONCLUSION OF LAW The criteria for service connection for bilateral lower extremities femoral artery occlusion, to include as secondary to diabetes have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from February 1968 to February 1970, to include service in Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In an October 2019 Board hearing, the Veteran testified before the undersigned Veterans Law Judge via videoconference; a transcript of the hearing is of record. Entitlement to service connection for bilateral lower extremities femoral artery occlusion, to include as secondary to diabetes The Veteran contends that his bilateral lower extremities femoral artery occlusion was caused or aggravated by his service-connected diabetes mellitus type II. Alternatively, the Veteran has contended that his bilateral lower extremity disability is related to active service. As the grant herein is based on a secondary theory of service connection, the evidence of record related to direct service connection will not be addressed in detail herein. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The medical evidence of record, to include VA examinations conducted in March 2016 and November 2020, confirm that the Veteran has a current diagnosis of bilateral lower extremities femoral artery occlusion. Additionally, the Veteran is service connected for diabetes mellitus, type II. The remaining inquiry for the Board is whether the Veteran’s bilateral lower extremity disability is proximately caused or aggravated by his service-connected diabetes. As noted above, the Veteran was afforded a VA examination in March 2016. The examiner opined that the Veteran’s bilateral lower extremity disability was not caused by his service-connected diabetes; noting that the condition was likely caused by the Veteran’s heavy smoking for many years. The examiner indicated that while the Veteran’s heavy smoking was the primary cause, his diabetes, although well-controlled, was a risk factor and aggravating factor for peripheral vascular disease. The examiner went on to indicate that the baseline level of severity of the bilateral lower extremity condition could be determined based on medical evidence prior to the aggravation. However, the examiner failed to quantify the degree of additional disability resulting from the aggravation. Following the March 2016 examination, this matter came before the Board in September 2020. The matter was remanded, in pertinent part, to obtain an addendum medical opinion to quantify the degree of additional disability resulting from the aggravation. The Veteran was afforded a VA examination in November 2020. The examiner indicated that a baseline level of severity of the Veteran’s bilateral lower extremity disability could not be determined by the medical evidence. The examiner went on to opine that the Veteran’s bilateral lower extremity disability was not aggravated beyond natural progression by his service-connected diabetes. As rationale, the examiner indicated that while diabetes was known to increase risk for vascular atherosclerosis, the Veteran’s diabetes was well-controlled and unlikely to cause an aggravation of the condition. Given the two conflicting medical opinions, the Board finds that the probative evidence of record is at least in equipoise as to whether the Veteran’s bilateral lower extremity disability was aggravated by his service-connected diabetes. While the March 2016 examiner concluded that a baseline level of severity of the bilateral lower extremity condition could be determined based on medical evidence, the November 2020 examiner concluded that it could not be determined based on a review of the same. Likewise, while the March 2016 examiner clearly indicated that the Veteran’s well-controlled diabetes was an aggravating factor of his bilateral lower extremity disability, the November 2020 examiner concluded that the condition was not aggravated due to the Veteran’s diabetes being well controlled. When comparing the probative value of these opinions, neither of them is especially conclusive either way. It is clear that both medical examiners had an accurate understanding of the Veteran's medical history and provided an opinion based on their understanding of the medical science at issue in the context of this Veteran's case. Finally, although 38 C.F.R. § 3.310(b) indicates that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the AOJ’s determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the AOJ having the responsibility for determining the degree of aggravation in assigning the rating. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral lower extremity condition was aggravated by his service-connected diabetes. Accordingly, service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, Associate 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.