Citation Nr: 1320761 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-13 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, based upon substitution of the appellant as the claimant. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure and secondary to diabetes mellitus, type II, based upon substitution of the appellant as the claimant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant, her son, and her daughter ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to December 1968. He died in April 2009. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. At the time of the Veteran's death, he had perfected an appeal as to the claims of entitlement to service connection for diabetes mellitus, type II, and for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus. Following the Veteran's death, in February 2010, the appellant filed a claim based upon her status as the Veteran's surviving spouse requesting to continue the Veteran's service connection claims. The law provides that, upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A (West 2002). In this case, the appellant's claim to continue the Veteran's service connection claims was accepted by the RO as a request for substitution as the claimant in the claim pending at the time of the Veteran's death and the appellant's request for substitution was granted. The diabetes and peripheral neuropathy of the bilateral lower extremities claims have been certified to the Board for adjudication based upon substitution of the appellant as the claimant. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a March 2013 hearing conducted via videoconference. A transcript of the hearing is of record. Additionally, evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The Board notes that a December 2009 RO decision denied the appellant's claims of entitlement to Dependency Indemnity Compensation (DIC), death pension, and accrued benefits by a surviving spouse. As evidenced by the claims folder, the appellant has not expressed disagreement with this decision. Accordingly, these issues are not in appellate status and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. There is no competent evidence that the Veteran was exposed to herbicides during his military service. 2. The Veteran's diagnosed diabetes mellitus was not related to his military service and may not be presumed as having been incurred therein. 3. The Veteran's diagnosed peripheral neuropathy of the bilateral lower extremities was not related to his military service and may not be presumed as having been incurred therein. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy of the bilateral lower extremities was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not related to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant seeks entitlement to service connection for a diabetes mellitus, type II, to include as due to herbicide exposure, as well as for peripheral neuropathy of the bilateral lower extremities to include as due to herbicide exposure and as secondary to the diabetes. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Duty to Notify The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the appellant with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in July 2008, prior to the initial adjudication of the claims. In short, the record indicates the appellant received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the appellant in obtaining evidence necessary to substantiate her claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes the appellant's statements, the Veteran's service treatment records, as well as VA and private treatment records. As noted above, the appellant was afforded a hearing before the undersigned VLJ during which she presented oral argument in support of her service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's diabetes and neuropathy, and suggested the submission of evidence that would be beneficial to the appellant's claims, namely evidence pertaining to the appellant's claim that the Veteran was exposed to herbicides during his military service. Significantly, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the criteria necessary to substantiate the claims, and the appellant, through her testimony, demonstrated that she had actual knowledge of the criteria necessary to substantiate her claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the appellant was not provided a VA nexus opinion with regard to her claims for diabetes and peripheral neuropathy of the bilateral lower extremities. Under 38 C.F.R. § 3.159(c)(4) (2012), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that there is sufficient evidence to decide these claims, and that further medical opinion is not necessary to decide the claims for service connection for diabetes and peripheral neuropathy to include as secondary to the diabetes. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, as discussed in further detail below, there is no competent evidence that the Veteran suffered an event, injury, or disease, in service resulting in his diabetes or peripheral neuropathy of the bilateral lower extremities. Specifically, the Board has found that the appellant's belief that the Veteran was exposed to herbicides in service is not supported by the record. Furthermore, there has been no competent evidence to suggest in-service onset of diabetes or peripheral neuropathy of the bilateral lower extremities. Accordingly, a VA nexus opinion need not be sought. The Board also notes that during the above-referenced hearing in March 2013, the appellant's son and daughter discussed the severity of the Veteran's diabetes mellitus and peripheral neuropathy of the bilateral lower extremities. They also testified that he began treatment for his diabetes in the late 1980s at a VA outpatient clinic in Nevada as well as in Cleveland. See the March 2013 Board hearing transcript, pgs. 6-7. In this regard, the Board notes that the Veteran's claims folder is absent any VA treatment records prior to October 2005. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In this case, however, the Board finds that remand is not necessary to obtain these records. Specifically, as will be discussed below, the competent and probative evidence of record demonstrates that the Veteran suffered from diabetes and peripheral neuropathy of the bilateral lower extremities during the course of the appeal. As such, the VA treatment records identified by the appellant's son and daughter would only replicate the finding that the Veteran suffered from diabetes and peripheral neuropathy. Pertinently, neither the appellant's son nor her daughter testified that these outstanding VA treatment records indicate that the Veteran's diabetes or neuropathy was related to his military service. Accordingly, the Board may proceed with adjudication of the appellant's claims without these potentially outstanding records, and that the appellant has not been prejudiced thereby. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the appellant's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The appellant has been accorded the opportunity to present evidence and argument in support of her claims. She has retained the services of an accredited representative. She was afforded a videoconference hearing in March 2013. Accordingly, the Board will proceed to a decision as to the issues on appeal. Service connection Because the outcome as to both issues involves the application of virtually similar law to identical facts, the Board will address the two issues together. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For certain chronic disorders, including diabetes mellitus and organic diseases of the nervous system, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection can also be established on a presumptive basis for certain diseases associated with exposure during service to herbicides. See 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Type II diabetes and acute and subacute peripheral neuropathy are such diseases. 38 C.F.R. §3.309(e). Presumptive service connection for type II diabetes and acute and subacute peripheral neuropathy as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met, which include a presumption of exposure to herbicides for Veterans with service in Vietnam during specific time periods, or service in specific areas of Korea during specific time periods. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The appellant seeks to establish service connection for diabetes mellitus and peripheral neuropathy of the bilateral lower extremities on a presumptive basis due to the Veteran's alleged exposure to herbicide agents during active service. In this case, the Veteran did not serve in Vietnam. However, the appellant contends that the Veteran's diagnosed type II diabetes mellitus and peripheral neuropathy of the bilateral lower extremities were related to exposure to herbicide agents during his service at Elmendorf Air Force Base in Alaska. She specifically contends that he was exposed to herbicide agents from refueling aircraft that had returned from Vietnam or were carrying supplies to Vietnam. The Veteran's personnel records confirm his military occupational specialty as a fuel specialist and that he was stationed at Elmendorf Air Force Base during his military service. Also in support of the appellant's claim is a copy of a document from the official Air Force record indicating that Elmendorf Air Force Base received about half of the aircraft traffic to and from Southeast Asia during the Veteran's military service there. However, in July 2008, the National Personnel Records Center searched its records based on the Veteran's military occupational specialty and years of service and found no evidence of exposure to herbicides. The Veteran's service, as reflected in the record, does not fall within the definition of "service in Vietnam" in that service records do not indicate foreign service, nor has the appellant contended. Thus, the presumption of exposure does not apply. In particular, it only applies to veterans who stepped foot in Vietnam. Moreover, it does not extend to those who, for whatever reason, were in contact with equipment or personnel returning from Vietnam. Pertinently, in a May 2009 memorandum to VA, the U.S. Army and Joint Services Records Research Center (JSRRC) indicated that they could not document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. See VA Adjudication Procedure Manual, M21-1MR Part IV.ii.2.C.10.m. Extrapolating from this the appellant's own claim of the Veteran's secondary exposure to herbicides via aircraft that were in Vietnam is too attenuated to establish actual herbicide exposure. Thus, there is no documentation that the Veteran was ever present in Vietnam or other direct proof of exposure. Accordingly, although he was diagnosed with diseases listed at § 3.309(e) (diabetes and peripheral neuropathy of the bilateral lower extremities), the appellant is not entitled to the presumption that it was incurred in or aggravated by the Veteran's service on the basis of exposure to an herbicide agent during service in the Republic of Vietnam. Nevertheless, even if the appellant is found not to be entitled to a regulatory presumption of service connection, the claims must still be reviewed to determine if service connection can be established on a direct basis. Stefl v. Nicholson, 21 Vet App 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As stated previously, the appellant alleges that the Veteran was exposed to herbicides primarily from aircraft that she believes were contaminated with Agent Orange. There is no official service department documentation, or any other objective evidence, to support her claim of herbicide exposure. Therefore, her assertion simply does not support the claim that the Veteran was, in fact, actually exposed to Agent Orange in service. With regard to whether the evidence establishes a direct connection between the Veteran's service and his development of diabetes and peripheral neuropathy of the bilateral lower extremities, the Board notes that the Veteran's service treatment records do not reveal any symptomatology suggestive of diabetes or neuropathy. Furthermore, post-service treatment records indicate that the Veteran did not complain of or receive treatment for either his diabetes or neuropathy until the late 1980s, which is more than 15 years after his separation from active duty, which makes it impossible to grant presumptive service connection for manifestation of a chronic disability (i.e., diabetes and neuropathy) within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309. Although not a dispositive factor, the significant lapse in time between service and post-service treatment for diabetes and peripheral neuropathy of the bilateral lower extremities may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no medical evidence linking the Veteran's diabetes mellitus or his peripheral neuropathy of the bilateral lower extremities to his military service decades earlier. The Board has no reason to disbelieve the appellant's statements that part of the Veteran's duties during his service at Elmendorf Air Force Base required him to refuel aircraft returning from Vietnam as such would be consistent with his duties as a fuel specialist. Furthermore, the appellant has submitted reports from the Office of History from the Elmendorf Air Force Base which document the landing of aircraft from Southeast Asia when the Veteran was stationed there. As such, the Board finds that the Veteran likely refueled this aircraft as part of his duties. Crucially, however, the Board is unable to find that the Veteran was exposed to herbicides in performing such duties, because there is no evidence in the record that would tend to show that this was the case. Although the Board acknowledges that the Veteran refueled aircraft that returned from Southeast Asia, there is no indication that he was specifically exposed to herbicides in performing these duties. The only explanation offered by the appellant is an assumption that the aircraft that the Veteran refueled were in fact contaminated with Agent Orange or any other herbicide. As such, the contention with respect to the Veteran's purported exposure to herbicides in performing his military duties amounts to speculation, on which benefits may not be granted. Because there is no evidence that the aircraft were contaminated with herbicide residue, the Board cannot find that the Veteran was exposed to herbicides in the discharge of his duties. Thus, the appellant's own opinion and theories about the Veteran's diabetes and peripheral neuropathy of the bilateral lower extremities, to the extent they are to be accorded some probative value, are far outweighed by the evidence of record, particularly the lack of official service department documentation, or any other objective evidence, to support her claim of herbicide exposure. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board observes that the appellant's son and daughter testified as to the Veteran's treatment for his diabetes and neuropathy at the March 2013 Board hearing. The Board notes that the appellant, her son, and her daughter, while entirely competent to report the Veteran's diabetes symptoms, have presented no probative clinical evidence of a nexus between the Veteran's diabetes or peripheral neuropathy of the bilateral lower extremities and his military service. Furthermore, as discussed above, the Board has found that their claim that the Veteran was exposed to herbicides is not supported by the objective evidence of record. The Board finds that the appellant, her son, and her daughter as lay people are not competent to associate any of the Veteran's symptoms to his military service. That is, the appellant, her son, and her daughter are not competent to opine on matters such as the etiology of the Veteran's diabetes and peripheral neuropathy of the bilateral lower extremities. Such opinion requires specific medical training relative to the endocrine and neurologic systems and is beyond the competency of a lay person. In the absence of evidence indicating that the appellant, her son, or her daughter have the medical training to render medical opinions, the Board must find that their contention with regard to a nexus between the Veteran's diabetes and neuropathy and his military service to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the appellant, her son, and her daughter in support of her own claim are not competent evidence of a nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. To the extent that the appellant contends that the Veteran had diabetes and peripheral neuropathy of the bilateral lower extremities continually since service, the Board notes that the first indication of complaint of or treatment for either of these disabilities was in the late 1980s. See the March 2013 Board hearing transcript, pgs. 6-7. This was more than 15 years after the Veteran left service in December 1968. While the appellant is competent to report the Veteran's diabetes and neurological symptoms over the years since his service, the Board notes that diabetes and peripheral neuropathy of the bilateral lower extremities were not reported at the time of his service discharge. The Board finds that the appellant's current statements regarding a continuity of the Veteran's diabetes and neuropathy following his discharge from service are not credible. His September 1968 separation examination from service contradicts any current assertion that his diabetes and peripheral neuropathy of the bilateral lower extremities were manifested during service. There is no competent medical evidence of a complaint of or treatment for diabetes or peripheral neuropathy of the bilateral lower extremities for many years after the Veteran's separation from service. See Maxson, supra; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. The Board accordingly places no probative value on the assertions of the appellant that there was a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the appellant's claims of entitlement to service connection for diabetes and peripheral neuropathy of the bilateral lower extremities on a direct basis. The benefits sought on appeal are accordingly denied. With regard to the appellant's contention that the Veteran's peripheral neuropathy of the bilateral lower extremities was related to his diabetes, the Board reiterates that in order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin, supra. Crucially, as discussed above, the evidence does not support a finding of service connection for diabetes. Thus, the appellant's claim fails on this basis, and service connection is therefore not warranted for peripheral neuropathy of the bilateral lower extremities as secondary to diabetes. As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt provision does not apply. ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, based upon substitution of the appellant as the claimant is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure and secondary to diabetes mellitus, type II, based upon substitution of the appellant as the claimant is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs