Citation Nr: 18141154 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-21 743 DATE: October 9, 2018 ORDER Entitlement to service connection for diabetes mellitus II (DM II) is denied. Entitlement to service connection for high cholesterol, to include as secondary to DM II is denied. Entitlement to service connection for hypertension, to include as secondary to DM II is denied. FINDINGS OF FACT 1. The Veteran’s exposure to herbicides during service has not been conceded; he was not presumptively or actually exposed to herbicides during active service. 2. The preponderance of the evidence is against finding that DM II began during active service, or is otherwise related to an in-service injury, event, or disease. 3. A high cholesterol level (or, hypercholesterolemia and/or hyperlipidemia) is not considered a disability for VA compensation purposes. 4. The preponderance of the evidence is against a finding that the Veteran’s hypertension was incurred in, caused by, or a result of his service, to include as secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for DM II have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for high cholesterol, to include as secondary to DM II have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for entitlement to service connection for hypertension, to include as secondary to DM II, have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to September 1966. Service Connection Generally, service connection will be granted if the evidence shows that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection is generally established where there is an evidentiary showing of three essential elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. 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 v. West, 11 Vet. App. 509, 512 (1998). Service connection for certain listed chronic diseases, such as diabetes mellitus and hypertension, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309(a) is through an evidentiary showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Also, 38 C.F.R. § 3.309(e) identifies specific diseases that shall be service-connected for those veterans who were exposed to an herbicide agent during active military, naval, or air service, even in the absence of any record of such disease occurring during service, provided that certain requirements under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed under 38 C.F.R. § 3.309(e) include diabetes mellitus. Service connection may also be granted for a disease that was first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or alternatively, whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). 1. Entitlement to service connection for DM II The Veteran contends that his DM II is due to his active duty service, to include as due to herbicide exposure. He stated that did not set foot on land in Vietnam; however, while stationed in Vietnam waters supporting the troops, he was exposed to Agent Orange when a cloud came from the shore and engulfed the entire ship. After the cloud passed, the crew was ordered to clean the entire ship. The Veteran, through his representative, described the cloud as “an unknown cloud of some sort of chemical.” The Veteran has a current diagnosis of DM II. As such, element one under Shedden is met. The Veteran stated that he encountered Agent Orange when he served on the USS St. Paul from September 1963 to September 1966. In June 2012, the Archives II Reference Section (RD-DC/2400) stated that the USS St. Paul was in the U.S. through May 1966. However, the Board notes that the Veteran was awarded the Vietnam Service Medal by virtue of service aboard USS St. Paul while operating in the Vietnam area of operations. The Board also notes that the agency of original jurisdiction did not concede herbicide exposure. As noted above, the Veteran stated that he did not set foot on land in Vietnam, and there is no evidence that the Veteran served on land in Vietnam. The Board notes that the Veteran alleges that he came in contact with “an unknown cloud of some sort of chemical” in Vietnam waters. Although the Veteran is competent to establish the details and circumstances surrounding his service in Vietnam waters, his assertion that the “unknown cloud of some sort of chemical” was an herbicide agent is far too speculative to constitute credible evidence of exposure. Additionally, no evidence has been submitted besides his statements to support this assertion. Therefore, the Board finds that the weight of the evidence establishes that the Veteran was not exposed to herbicide agents while on active duty. As such, presumptive service connection for DM II due to herbicide exposure is inapplicable. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing service connection for a disability with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) do not document treatments, complaints, or diagnosis of DM II. During his July 1962 Report of Medical History: Enlistment/USN examination, and September 1966 RAD examination, testing revealed no sugar or albumin in the Veteran’s urine. In September and October 2006, the Veteran was seen at the Palo Alto: Optometry Comprehensive. The Veteran’s past medical history noted a diabetes diagnosis in 1994. Based on the evidence of record, the Board finds that service connection for DM II is not warranted. The Veteran’s STRs do not show complaints, treatments, or diagnoses for DM II. The first medical evidence of DM II was in 1994, i.e., over 28 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran’s DM II for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). Regarding presumptive service connection, the Board finds that service connection for DM II on a presumptive basis is not warranted as the record does not show evidence of DM II within one year of the Veteran’s separation from active duty. As noted above, the first competent evidence suggestive of DM II was in 1994. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.303, 3.307, 3.309 cannot be applied. As such, the Board finds that elements two and three under Shedden have not been met. Therefore, service connection for DM II is not warranted on a direct or presumptive basis. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s DM II. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s DM II and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s DM II to his service. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his DM II; however, neither an examination nor an opinion is warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran’s current condition and his active service. The first medical evidence of the Veteran’s DM II was in 1994, i.e., 28 years after active service. The only evidence of a possible connection between the Veteran’s disability and his service are the Veteran and the representative’s own broad and conclusory statements that the condition is related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for DM II is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for high cholesterol, to include as secondary to DM II Hypercholesterolemia, in and of itself, is a laboratory finding. It is defined as an excess of cholesterol in the blood, and is not a disease, injury, or disability for VA compensation purposes. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (providing that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities and are not appropriate entities for the rating schedule). In this case, the Board acknowledges that the Veteran has a current diagnosis of high cholesterol/ hyperlipidemia. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that service connection is not warranted for the Veteran’s diagnosed hyperlipidemia (high cholesterol), to include as due to DM II. For VA compensation purposes, hyperlipidemia, in and of itself, is a laboratory finding and not considered a disease, injury, or disability. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (providing that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.). Accordingly, service connection for hyperlipidemia/high cholesterol must be denied for lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Entitlement to service connection for hypertension, to include as secondary to DM II For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, DC 7101. Under this code, service connection for pre-hypertension is not warranted when an examiner diagnoses pre-hypertension based on readings not recognized in DC 7101. See VA Adjudication Procedures Manual, M21-MR, III.iv.4.E.20.33. Analysis The Veteran contends that he is entitled to service connection for hypertension, to include as secondary to DM II. The Veteran’s STRs do not document treatments, complaints, or diagnosis of hypertension. During his July 1962 Report of Medical History: Enlistment and his September 1962 Recruit Training examinations, the Veteran’s blood pressure readings were 112/68 and 120/70, respectively. The Veteran noted that he did not have high or low blood pressure. In April 1963, the Veteran underwent a Submarine physical. His blood pressure reading was 114/70. During, the Veteran’s September 1966 RAD examination, his blood pressure reading was 114/72. The July 1962, April 1963, and September 1966 examiners noted that the Veteran’s vascular system was normal. In October 2006, the Veteran was seen at Palo Alto: Optometry Comprehensive. The Veteran’s past medical history noted hypertension in 1995. Based on the evidence of record, the Board finds that the preponderance of the evidence is against service connection on a presumptive, secondary, and/or direct basis. Regarding presumptive service connection, the Board finds that service connection for hypertension on a presumptive basis is not warranted as the record does not show evidence of hypertension within one year of the Veteran’s separation from active duty. As noted above, the first competent evidence suggestive of hypertension was in 1995. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.303, 3.307, 3.309 cannot be applied. As such, the Board finds that service connection on a presumptive basis is not warranted. Notwithstanding the foregoing presumptive provision, a claimant is not precluded from establishing entitlement to service connection on alternative bases. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has a diagnosis of hypertension. As such, element one under Shedden and Wallin is met. The Board notes that the Veteran is not service connected for DM II. As such, element two under Wallin is not met. Therefore, service connection on a secondary basis is not warranted. The Board finds that the weight of the evidence is against a finding that the Veteran’s hypertension is etiologically related to his military service on a direct basis. The record does not reflect, and the Veteran has not claimed, that he actually experienced hypertension while he was on active duty. Rather, he has related the hypertension to his nonservice-connected DM. Additionally, the first medical evidence of hypertension was in 1995, i.e., over 27 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran’s hypertension for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). As the preponderance of the evidence does not show that hypertension was incurred in service, or a medical nexus between the presently diagnosed hypertension and the Veteran’s service, service connection for hypertension cannot be granted on a direct basis. The Board acknowledges that there is no VA opinion regarding the Veteran’s theory of entitlement. However, as there is no credible lay evidence or competent medical evidence indicating that the Veteran’s hypertension was present in service or may be associated with his active service, a medical nexus opinion is not warranted, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (a conclusory lay nexus statement is not sufficient to trigger VA’s duty to provide an examination). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for hypertension is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel