Citation Nr: 18142790 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 10-41 618 DATE: October 17, 2018 ORDER Entitlement to service connection for diabetes mellitus type II (diabetes) is denied. Entitlement to secondary service connection for hypertension is denied. REMANDED Entitlement to an effective date prior to December 28, 2010 for the award of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has not been diagnosed with diabetes. 2. The Veteran’s hypertension is not proximately due to, nor aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to secondary service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1970 to April 1972, including service in the Republic of Vietnam. This matter comes before the (Board) from June 2009 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Board remanded the service connection claims for further development. Service Connection 1. Entitlement to service connection for diabetes. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including diabetes, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Upon review of the evidence in the record, the Board finds that service connection for diabetes is not warranted because the record fails to reflect that the Veteran has been diagnosed with diabetes at any point just prior to or during the appeal period beginning in August 2008. In this regard, the April 2018 VA examiner, who specifically reviewed the Veteran’s treatment records, including prior laboratory studies, as well as the totality of the pertinent evidence of record, and conducted a thorough physical examination and laboratory studies, determined that the Veteran did not meet the criteria for a diagnosis of diabetes. In reaching his conclusion, the examiner acknowledged the January 2009 report of excessive thirst/urination at times and significant family history of diabetes, as well as the April 2013 notation that a doctor advised the Veteran he had diabetes several years ago. The examiner explained that the Veteran’s report was uncorroborated by medical treatment records, emphasizing that his medical records neither document any treatment for nor do they identify diabetes among the Veteran’s established medical problems, but instead note a diagnosis of impaired fasting glucose. Thus, per the examiner, these findings fail to demonstrate conclusive evidence of a diagnosis of diabetes. Thus, the preponderance of the evidence is against the Veteran’s claim of service connection for diabetes. Moreover, as there is no current diagnosis of diabetes, to include within the one-year period following service separation, presumptive service connection and service connection based on continuity of symptomatology are not available. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). To the extent the Veteran asserts that he has diabetes, the Board finds that he is not competent to do so, as this requires laboratory testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, his report of a prior physician’s diagnosis of diabetes is not credible, given the examiner’s conclusion above. Thus, as the first element of service connection is not met at any point during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). 2. Entitlement to secondary service connection for hypertension. Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran does not indicate that his problems with hypertension began in service; instead, he asserts that his hypertension had its onset in 1998 and that it developed secondary to his PTSD. See August 2008 VA Form 21-526; see also May 2013 Decision Review Officer (DRO) Conference Report. Here, the Veteran has a current diagnosis of hypertension. See April 2018 VA examination report. Also, he is service-connected for PTSD. Therefore, the first two elements of secondary service connection are established. Regarding the last element, nexus, the only competent opinion of record is against the claim. Specifically, the April 2018 VA examiner opined that the Veteran’s hypertension was not caused or aggravated by his PTSD. In support of his opinion, the examiner explained that there was no objective data to establish a causal relationship between hypertension and PTSD based on medical literature and the Veteran’s medical treatment records. The examiner also found a lack of aggravation, noting that the Veteran’s hypertension was consistently stable and well-controlled. The Board affords this medical opinion great probative value, as it considers the Veteran’s entire relevant medical history, and provided a thorough rationale with supporting data, as well as reasoned medical explanations. There is no competent opinion to the contrary. To the extent that the Veteran asserts that his hypertension is the result of his service-connected PTSD, the Board finds that he is not competent to do so, as the determination as to the etiology of such a disease is a complex medical question that is beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim of secondary service connection for hypertension. As such, the benefit of the doubt doctrine is not for application, and secondary service connection must be denied. REASONS FOR REMAND 3. Entitlement to an effective date prior to December 28, 2010 for the award of a TDIU is remanded. Remand is necessary for consideration of whether an extraschedular TDIU is warranted prior to December 28, 2010, as the Veteran’s TDIU claim was first raised with respect to his dispute with the initial rating assigned to his PTSD effective in 2008 (see December 2013 VA Form 21-8490), and the competent evidence of record indicates an inability to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability prior to December 2010. This issue is accordingly remanded for the following: Refer to the Director of the Compensation Service the issue of whether the Veteran is entitled to TDIU on an extraschedular basis for the period from August 12, 2008, to December 28, 2010 under 38 C.F.R. § 4.16(b). The Director’s attention is drawn to the September 2008 VA examiner’s finding of “difficulty in the job area where he has been fired from jobs due to a bad attitude” and “very serious symptomatology,” and the July 2013 VA examiner’s finding of a “significant working impairment after September 11, 2001,” including “difficulty taking orders from people.” S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel