Citation Nr: 1540459 Decision Date: 09/21/15 Archive Date: 10/02/15 DOCKET NO. 13-28 149A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus type II (DM II), to include as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2015, the Veteran testified at a video conference Board hearing at the RO before the undersigned. A transcript of that hearing has been associated with his claims folder. Additional evidence was submitted with a waiver of RO review of that evidence. See 38 C.F.R. § 20.1304(c) (2015). FINDING OF FACT The Veteran does not have DM II. CONCLUSION OF LAW The criteria for service connection for DM II have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). A standard August 2011 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service VA treatment records have also been obtained, as well as a transcript of his May 2015 personal hearing. The Veteran was provided VA medical examinations in September 2011 and January 2014. The examinations, along with the expert medical opinions, are sufficient evidence for deciding the claim. The reports are adequate in aggregate as they are based upon both an examination of the Veteran as well as a review of all available records, including laboratory testing for DM II. The examiners also provided rationale for the opinions rendered. Thus, VA's duty to assist has been met for this claim. Legal Standards Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war and manifests DM to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). For chronic diseases listed, such as DM, service connection may also be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only those chronic diseases listed in § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b)). VA regulations provide that, if a veteran served in Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides during such service. Further, certain diseases, including DM II, will be presumed service-connected due to such exposure, even if there is no record of the disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Analysis The Veteran seeks service connection for DM II, which he believes is related to herbicide exposure during service in the Republic of Vietnam. Service personnel records confirm that the Veteran served in the Republic of Vietnam. Thus, in-service herbicide exposure is presumed as there is no affirmative evidence to the contrary. The claim turns on whether the Veteran has a current disability; that is whether he has had DM II at any time during the pendency of the claim, which was filed in June 2011. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Post-service VA treatment records show the Veteran was diagnosed with diabetes, type II or unspecified type, and was started on Metformin as early as April 2008. Subsequent VA treatment records show ongoing diagnoses of diabetes. However, the Veteran underwent two VA examinations in September 2011 and January 2014 to determine whether he currently has a diagnosis of DM II. Both VA examiners, after examining the Veteran and reviewing his claims file, determined that the criteria for a diagnosis of DM II had not been met. Both examiners opined that VA lab results consistently did not support a diagnosis. The January 2014 examiner noted that lab results from 1997 to the present were reviewed and that those values did not support a diagnosis of DM II. The examiner further opined that the Veteran has been prescribed Metformin for impaired fasting glucose to prevent DM in compliance with the American Diabetes Association's guidelines. The Board finds the examiners opinions, particularly the January 2014 opinion, more probative than the VA treatment records because they provide rationale for their opinions that the criteria for a diagnosis of DM had not been met, while the treatment records provide no rationale for a DM diagnosis. Moreover, the VA examiners' opinions are further supported by a subsequent March 2014 VA treatment record which notes that the Veteran had been inaccurately diagnosed with DM, and that he still took Metformin for prevention. The assessment was impaired fasting blood sugar and the Veteran was instructed to stop taking Metformin at that time. During his May 2015 hearing before the undersigned, the Veteran testified that he was first diagnosed with DM in 2008 and that he had taken Metformin for over 7 years to treat DM. He had recently discontinued taking medication and believed his glucose levels were lower because of his lifestyle changes. He testified that he had an appointment in the next month at VA for further treatment of his DM. The Veteran stated that he would attempt to get and submit a written statement from his treating physician indicating that he has a current diagnosis of DM II. The record was held open an additional 30 days to afford him the opportunity to do so. The Veteran did not subsequently submit any evidence. The Board has considered the Veteran's assertion that he suffers from DM II. However, DM II is not a simple medical condition the Veteran is competent to self-diagnose, because the diagnosis must be confirmed by laboratory testing and cannot be made based on mere personal observation, which comes through sensory perception. See Mattke v. Deschamps, 374 F.3d 667, 670 (8th Cir. 2004) (a diagnosis by laboratory testing is distinctly not within the realm of common lay knowledge); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran has not shown that he is qualified through education, training, or experience to offer medical diagnoses on complex medical conditions such as DM II. Accordingly, he is not competent to self-diagnose DM II and his opinion in this regard is of no probative value. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). After reviewing the record, the Board concludes that the most probative evidence establishes that the Veteran does not have DM II, nor has he had DM II during any period of the claim. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, service connection for DM II is not warranted. ORDER Service connection for DM II is denied. ____________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs