Citation Nr: 21032372 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-00 367 DATE: May 26, 2021 ORDER Entitlement to service connection for peripheral vascular disease of the right upper extremity is denied. Entitlement to service connection for peripheral vascular disease of the left upper extremity is denied. Entitlement to service connection for peripheral vascular disease of the right lower extremity is denied. Entitlement to service connection for peripheral vascular disease of the left lower extremity is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for chronic kidney disease, to include acute kidney failure, is remanded. FINDINGS OF FACT 1. The probative evidence of record is against a finding that the Veteran has a current diagnosis for peripheral vascular disease of the right and left upper extremities. 2. The probative evidence of record reflects that the Veteran's peripheral vascular disease of the right and left lower extremities did not manifest in service, within the one-year presumptive period or for many years thereafter and is not otherwise related to service, to include the Veteran's exposure to herbicide agents therein. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral vascular disease of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for peripheral vascular disease of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for peripheral vascular disease of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for peripheral vascular disease of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from July 1965 to July 1967, to include service in the Republic of Vietnam from November 1965 to November 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). These claims have previously been before the Board in November 2015 and in October 2018 when they were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a), 3.309(e). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The enumerated diseases which are associated with herbicide exposure do not include peripheral vascular disease. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. & 2. Entitlement to service connection for peripheral vascular disease of the right upper extremity and left upper extremity is denied. The Veteran contends he has peripheral vascular disease of the right and left upper extremities that is related to his exposure to herbicide agents during his service in the Republic of Vietnam. In this case, the Board emphasizes that there is simply no evidence of a current disability for peripheral vascular disease of the right and left upper extremities to sustain a claim for service connection for such. See, e.g., February 2021 VA examination (finding the Veteran did not have peripheral vascular disease of the right or left upper extremity). In pertinent part, the Veteran's service treatment records are silent for any complaints, treatment, or diagnosis for upper extremity peripheral vascular disease and his June 1967 separation examination indicated that he had a clinically normal vascular system. Post-service treatment records reflect treatment for peripheral vascular disease in both the right and left lower extremities, but no documentation or complaints of peripheral vascular disease in the upper extremities. Hence, service connection for peripheral vascular disease of the right and left upper extremities are denied as there is no evidence of such disabilities. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim for service connection for peripheral vascular disease of the right and left upper extremities must be denied. 3. & 4. Entitlement to service connection for peripheral vascular disease of the right lower extremity and left lower extremity is denied. The Veteran also seeks service connection for peripheral vascular disease of the bilateral lower extremities. Turning to the evidence of record, his service treatment records, to include his June 1967 separation examination are silent for any complaints, findings, treatment, or diagnosis related to peripheral vascular disease of the bilateral lower extremities. Moreover, his post-service treatment records show that peripheral vascular disease of the right and left lower extremities was not diagnosed until many years after separation from service. Specifically, the Veteran reported during his February 2021 VA examination that he was first diagnosed with peripheral vascular disease of the right and left lower extremities in September 2003, more than 30 years after his separation from active duty service. See also March 2009 VA peripheral nerves examination (noting the Veteran was diagnosed with peripheral vascular disease in 2004). Additionally, the Veteran reported that he had been experiencing symptoms of the condition "for at least 15 to 16 years." Thus, based on the foregoing information, there is no evidence that the Veteran's bilateral lower extremity peripheral vascular disease manifested in service or to a compensable degree in the first year following his separation from active duty service. See 38 C.F.R. § 3.309(a). Consequently, service connection for peripheral vascular disease of the bilateral lower extremities on the basis that such became manifest in service and persisted, or on a presumptive basis (for peripheral vascular disease as a chronic disease under 38 U.S.C. § 1112), is not warranted. Rather, it is the Veteran's contention that he has peripheral vascular disease of the right and left lower extremities as a result of exposure to herbicide agents in service. The Veteran has verified service in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents. However, peripheral vascular disease is not on the list of presumptive diseases entitled to service connection due to herbicide exposure. See 38 C.F.R. § 3.309(e). The Veteran is not precluded from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Nevertheless, aside from his bare assertions that his bilateral lower extremity peripheral vascular disease is associated with in-service exposure to herbicide agents, there is no competent evidence establishing or even indicating that an etiological connection exists between the Veteran's diagnosis of peripheral vascular disease of the right and left lower extremities and his in-service herbicide agent exposure. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Notably, the Veteran's VA treatment records attribute his current peripheral vascular disease of the bilateral lower extremities to his previous history of tobacco abuse. See e.g., April 23, 2019 VA primary care note. The Veteran's VA primary care physician stated that the Veteran has peripheral vascular disease related to prior tobacco abuse, for over years, and that his "30 pk-year smoking history more likely than not caused his PVD." See December 2014 VA diabetes mellitus examination. Further, the February 2021 VA examiner also provided a negative nexus opinion for the Veteran's peripheral vascular disease, opining that the Veteran's condition was less likely than not incurred in or caused by an in-service injury, event, or illness, to include exposure to herbicide agents in the Republic of Vietnam. The February 2021 VA examiner stated that "[a]fter reviewing the medical literature, and noting that even though the Veteran has ample documentation to support agent orange exposure and that this point is conceded, I am unable to find any peer-reviewed documentation and/or studies that support the assertion that PVD of the lower extremities is directly and/or indirectly related to/of agent orange exposure." Cumulatively, the Board finds the medical evidence, including the February 2021 VA examination as well as the April 2019 VA treatment record, to be highly probative on the issue of whether there is a nexus between the Veteran's current peripheral vascular disease of the bilateral lower extremities and his active duty service. Based on the large lapse in time between the Veteran's active duty service and his diagnosis of peripheral vascular disease of the bilateral lower extremities, as well as his history of tobacco use, the Board finds that the preponderance of the evidence is against a finding that service connection is warranted in this case. The Board also finds significant that the Veteran has presented no objective medical opinion in support of his claim. The Board acknowledges that, generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may also speak to etiology in some limited circumstances in which nexus is obvious merely through observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, a lay person, such as the Veteran, is not competent to provide evidence as to more complex medical questions as he has not shown he has the requisite medical training and experience (i.e., those which are not capable of lay observation and are not competent regarding the etiology of the Veteran's peripheral vascular disease of the right and left lower extremities). See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In sum, the competent and probative evidence of record fails to indicate that the Veteran's peripheral vascular disease of the right and left lower extremities had onset in, or is otherwise related to service including as a result of presumed exposure to herbicide agents. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service connection for peripheral vascular disease of the bilateral lower extremities must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 5. Entitlement to service connection for hypertension is remanded. The Veteran contends that his current hypertension either had its onset in service, or alternatively, is related to his exposure to herbicide agents during his service in the Republic of Vietnam. Pursuant to the October 2018 Board remand, a VA examination and addendum medical opinion was obtained in October 2019 and February 2021 addressing the etiology of the Veteran's current hypertension. The February 2021 VA examiner provided opinions addressing the Veteran's theory of entitlement regarding the onset of hypertension and its chronic nature. However, the Board finds that the February 2021 VA opinion is unresponsive to the October 2018 Board remand directives such that there has not been substantial compliance. Specifically, the February 2021 VA opinion did not address the Board's requests for opinions from the VA examiner addressing direct service connection, to include whether the Veteran's hypertension was related to the Veteran's in-service herbicide agent exposure, considering the National Academy of Sciences Institute of Medicine (NAS) Veterans and Agent Orange report from 2012 which indicates that NAS found that there is "limited or suggestive evidence" of an association between hypertension and Agent Orange exposure. See 79 Fed. Reg. 20,308, 20,309-20,310 (Apr. 11, 2014). In this regard, the February 2021 VA opinion is conclusory and inadequate, as the VA examiner simply stated that "the condition has not been shown, documented, or added to VA's presumptive diagnosis list and thus the condition is not directly or indirectly related to his time in service and/or agent orange exposure." The Board notes that additionally, since then, the NAS has published the Veterans and Agent Orange: Update 11 (2018), which moved hypertension from the "limited or suggestive" category to the "sufficient" category, indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See https://www.nationalacademies.org/news/2018/11/vietnam-veterans-and-agent-orange-exposure-new-report. An article in the November 2016 Journal of Occupational and Environmental Medicine entitled Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans suggests that herbicide exposure history and Vietnam service status were significantly associated with hypertension risk. See https://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. In light of the above, an additional medical opinion should be obtained on remand. Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). 6. Entitlement to service connection for chronic kidney disease, to include acute kidney failure, is remanded. The Veteran has asserted that his chronic kidney disease is caused by or related to his hypertension, to include medications he takes for hypertension. Further, VA treatment records indicate a relationship between hypertension, including his hypertension medications, and the Veteran's current chronic kidney disease. As addressed above, the Veteran's claim for service connection for hypertension is pending and will be remanded to the AOJ for further evidentiary development as a result of this decision. As the chronic kidney disease claim is inextricably intertwined with the pending hypertension appeal, adjudicating it prior to a determination in the hypertension appeal would be a waste of judicial resources. The chronic kidney disease claim is therefore remanded until a determination is made regarding service connection for hypertension. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA clinician regarding the etiology of the Veteran's current hypertension. After review of the Veteran's claims file, the examiner is asked to opine on the following: Whether it is at least as likely as not that the Veteran's hypertension is related to an in-service injury, event, or disease, including conceded exposure to herbicide agents in the Republic of Vietnam. In addressing this question, the examiner should discuss the National Academy of Sciences 2006 and 2008 updates that concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide agent exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,33 (Dec. 27, 2010). The examiner should also discuss the most recent Veterans and Agent Orange: Update 11 (2018), released on November 15, 2018, in which hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. A complete rationale should be given for all opinions and conclusions expressed. 2. Take any steps deemed necessary to develop the Veteran's claim for service connection for chronic kidney disease, to include as secondary to hypertension. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.