Citation Nr: 18142887 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 09-34 089 DATE: October 17, 2018 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for erectile dysfunction, associated with diabetes mellitus, is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, associated with diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, associated with diabetes mellitus, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, is denied. FINDINGS OF FACT 1. The Veteran did not serve within the Republic of Vietnam, and has not been shown to have otherwise been exposed to Agent Orange or other tactical herbicide agents during his active military service. 2. The evidence does not demonstrate that the Veteran developed diabetes mellitus during or within one year of separation from active military service or that it is otherwise etiologically related to the Veteran’s service. 3. The Veteran’s erectile dysfunction is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 4. The Veteran’s peripheral neuropathy of the left upper extremity is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 5. The Veteran’s peripheral neuropathy of the right upper extremity is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 6. The Veteran’s peripheral neuropathy of the left lower extremity is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 7. The Veteran’s peripheral neuropathy of the right lower extremity is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for erectile dysfunction, including as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 3. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 4. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 5. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 6. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to October 1976. The Veteran died in January 2011; the appellant is his surviving spouse who has continued pursuing the Veteran’s claims as an appropriate substitute claimant. In June 2010, the Veteran presented testimony at a hearing before a Decision Review Officer (DRO). A transcript of the hearing is of record. Following the Veteran’s death, the appellant submitted an application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits in April 2011. These benefits were denied in a February 2013 rating decision, which the appellant then appealed in March 2013. A Statement of the Case (SOC) was issued in October 2017. The appellant did not submit a response or perfect an appeal to the Board within 60 days of receiving the SOC; therefore, these issues are not before the Board at this time. The Board remanded the six issues currently on appeal in October 2013. The case has since been returned to the Board for further appellate review. Pursuant to the October 2013 remand instructions, VA treatment records and medical records from the Social Security Administration (SSA) submitted or created as part of the Veteran’s claim for SSA disability benefits were obtained and associated with the claims file. Additionally, VA contacted the Compensation Service Agent Orange mailbox in June 2016 to seek to verify the presence of Agent Orange in Guam while the Veteran was present. A negative response, discussed in further detail below, was provided in August 2016, and in June 2017, VA associated a Formal Finding of insufficient information to send to the Joint Services Records Research Center (JSRRC) to attempt to verify herbicide exposure in Guam. Such action is found to substantially comply with the Board’s October 2013 remand instructions. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to service connection for diabetes mellitus, on a substitute basis VA treatment records and the August 2010 VA examination report document that the Veteran had a current diagnosis of diabetes mellitus, type II during the relevant appeal period. The contention is that the Veteran’s diabetes mellitus should be granted service connection on a presumptive basis either as related to alleged exposure to tactical herbicide agents during his service in Guam or as having arisen during or within one year of his separation from active military service. Service connection for diabetes mellitus, type II is presumptive for veterans who were exposed to certain tactical herbicide agents during active military, naval, or air service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran’s service personnel records document that he served as a base plumbing specialist at the Andersen Air Force Base in Guam between August 1972 and December 1973. The record does not indicate and it has never been asserted that the Veteran served in the Republic of Vietnam or the Korean Demilitarized Zone. VA does not recognize a presumption of exposure to herbicide agents based on service in Guam. The August 2016 AO mailbox response noted that Department of Defense had not identified any location on the island of Guam, including Andersen AFB, where AO was used, tested, stored, or transported. Where the evidence does not warrant presumptive service connection, however, an appellant is not precluded from establishing service connection with proof of direct causation to the extent that any exposure can be substantiated. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In a March 2013 statement, the appellant asserted that while serving at Andersen AFB, the Veteran cleaned out clogged drainage pipes after rains along the perimeter of the base, which was sprayed every three months with Agent Orange. The assertion is that the dead foliage sprayed with Agent Orange would wash down the drainage pipes and become lodged causing a clog, and that the Veteran was exposed to Agent Orange when he went in to clean out the pipes. She also requested that a prior 2005 Board decision which granted service connection for diabetes mellitus secondary to herbicide exposure in Guam be applied to the present case. By law, Board decisions are non-precedential and are only binding as to the case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided based on the individual facts of the case in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303. The Board notes that the 2005 decision in question involved service in Guam between 1966 and 1968, prior to AO use by the military being terminated in 1971, whereas the Veteran’s service in Guam did not begin until 1972. The facts of the 2005 decision are therefore found to be inapplicable in the present case. In June 2017, the RO determined that the claimant had not submitted sufficient evidence to allow meaningful research of records at JSRRC to verify if herbicide agents were used at Andersen Air Force Base in Guam during the time the Veteran served on active duty. In the August 2016 response, the Compensation Service noted that Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971, and that there were no combat operations on Guam during those years and therefore no need for Agent Orange usage there. It continued that Guam was not on the Agent Orange shipping supply line, and stated that all use of Agent Orange by the United States military was terminated in 1971, one year before the Veteran’s claimed exposure. Compensation Service concluded that it could provide no evidence to support the claimed exposure. While lay statements may be competent on a number of matters, neither the appellant nor the Veteran is competent to establish that the vegetation sprayed at the perimeter of Andersen AFB was an "herbicide agent" as defined by VA. The ability to identify an herbicide agent on sight or smell is not within the ordinary knowledge of a lay person. The Veteran had not previously demonstrated any experience with herbicides or chemicals that would have allowed him to recognize it in service. See Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event occurred during service). While the Veteran may very well have been exposed to commercial herbicides through his duties clearing dead foliage from drain pipes in Guam, the Board notes that an herbicide agent differs from a commercial herbicide. 38 C.F.R. § 3.307(a)(6)(i) (an herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 6, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram). Commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. §3.307(a)(6)(i). The preponderance of the competent evidence is against a finding that the Veteran was exposed to an herbicide agent such as Agent Orange during his service in Guam, and no other means of exposure has been asserted. Service connection for diabetes mellitus, type II on a presumptive basis as related to exposure to an herbicide agent is therefore unwarranted. There is also a contention that service connection for the Veteran’s diabetes mellitus, type II should be granted as having arisen during or within one year of separation from active military service. At the June 2010 DRO hearing, the Veteran testified that his separation physical in 1976 showed abnormal blood sugar, but that he was not told that he had a diagnosis of chemical diabetes mellitus, very mild. He reported that he was diagnosed with diabetes mellitus in 1984, and that in the intervening eight years since service, he had “always had some sort of problem,” such as having to frequently use the bathroom, being pasty, and feeling poorly. The Veteran was provided with a VA examination in August 2010. The examiner noted the findings of fasting, 2-hour, and 3-hour blood sugar testing documented in June 1976, as well as the statement of the physician in the service treatment records that “I do think that the diagnosis of chemical diabetes can be made and therefore I have instructed him that he should have periodic checkups on his blood sugar as he may be one prone to develop diabetes mellitus.” The August 2010 examiner stated that “chemical diabetes” is equivalent to pre- or borderline diabetes, but is not the same condition as diabetes mellitus, type II. He also commented that “chemical diabetes” is not an incipient stage of diabetes mellitus type II, but merely identifies a patient at risk of the later development of diabetes mellitus, type II, so that appropriate lifestyle modifications can be instituted. He noted that the Veteran was not officially diagnosed with diabetes mellitus, type II until years after service, and concluded that the Veteran’s diabetes mellitus, type II did not arise and was not diagnosed during service. A supplemental Veteran’s Health Administration expert medical opinion was obtained in January 2018. The endocrine specialist also explained that “chemical diabetes mellitus” is an antiquated term that was used when serum glucose concentrations following oral or iv glucose change were abnormal but did not meet the criteria for diabetes mellitus. He continued that it is generally referred to as impaired glucose tolerance (IGT) or impaired fasting glucose (IFG) in present terms, and that IGT is diagnosed if fasting glucose is 100-125 mg/dL and/or 2-hour glucose is between 140 and 199 mg/dL, while diabetes mellitus is diagnosed if fasting glucose is greater than 125 mg/dL and/or 2-hour glucose is greater than 199 mg/dL. A June 28, 1976 service treatment record (incorrectly identified as a January 28, 1976 record by the examiner) documented several fasting glucoses (122, 115, 118, and 103) which were abnormal but below the diagnostic level for diabetes mellitus, as well as 2-hour blood sugars (142, 137, and 118) which showed IFG/IGT but not diabetes mellitus. The examining physician in service noted that the glucose metabolism was “clearly abnormal although it is somewhat borderline” and provided a diagnosis of “chemical diabetes mellitus, very mild” as well as “mild to moderate obesity.” The Veteran was noted to be 195 lbs. in June 1976. The January 2018 VA endocrine specialist stated that patients with IFG/IGT are at increased risk for the eventual development of diabetes mellitus, with an estimated 25 percent of people with either IFG or IGT developing diabetes mellitus within 3 years of testing (per treatise). The specialist stated that he could not comment with any certainty on the Veteran’s glucose status within the first year after discharge from military service, but stated that if the Veteran had gained more weight after discharge, he very possibly could have had diabetes mellitus within a year after discharge. He also stated, however, that calorie restriction with resulting weight loss at that time very likely could have improved and possibly normalized the Veteran’s glucose control. Finally, he stated that the Veteran’s testimony that he had increased urination is consistent with blood glucose frequently being considerably greater than 200 mg/dL, but that it is not clear when the polyuria began. The Board finds that a preponderance of the competent and credible evidence of record weighs against a finding that the Veteran developed diabetes mellitus during service, or that it manifested to a degree of 10 percent or more within one year following separation from service. As to the question of whether diabetes mellitus arose during service, the opinions of the VA examiner and VA medical expert are found to be both competent and persuasive concerning the conclusion that the Veteran’s service treatment records did not show that the Veteran had diabetes mellitus, during his military service. The January 2018 medical expert opinion, in particular, provided clear explanations concerning the diagnostic criteria and differences between “chemical diabetes mellitus” and diabetes mellitus, type II, citing to treatise evidence and findings of blood sugar testing documented in the Veteran’s service treatment records. While the medical expert stated that the Veteran very possibly could have had diabetes mellitus within a year after discharge if he had gained more weight after discharge, he also stated that calorie restriction with resulting weight loss very likely could have improved or normalized the Veteran’s glucose control. While the Veteran was documented as weighing 196 lbs. at the June 1976 consult, his separation examination from August 1976 documented a weight of 188 lbs., a weight loss of 12 lbs., and there is no evidence indicating that the Veteran gained significant weight during the year following service. Further, although the Veteran stated that he experienced symptoms ever since service that he later thought were related to diabetes mellitus, the Board notes that the Veteran was actually seen for other medical concerns during and slightly following the year after service. The treatment records from shortly following separation from service did not document any complaints of increased urinary frequency or the other symptoms which the Veteran later attributed to diabetes mellitus, type II. Outpatient clinic records provided to VA by SSA document treatment for a small scrotal abcess (in December 1976) and abdominal pain (in September 1977). Of particular note, one of the September 1977 treatment notes indicates that the Veteran was scheduled for labs including SMA-6 and urinalysis. The Board takes judicial notice of the fact that the SMA-6 blood test evaluates serum concentrations including for glucose. See Laboratory tests recommended by pharmacists…, National Center for Biotechnology Information, U.S. NATIONAL LIBRARY OF MEDICINE. While the follow-up results of such testing are not of record, the Veteran’s assertion that he was not diagnosed with diabetes mellitus until 1984 would seem to indicate that the results of earlier bloodwork were not diagnostic for diabetes mellitus, type II. Thus, since there is no competent evidence that the Veteran was exposed to herbicide agents in service, and no probative medical evidence that he manifested the disability to a degree of 10 percent or more within a year of separation from active duty, the claim for service connection for diabetes mellitus, type II on a presumptive basis must be denied. Further, the most probative evidence of record indicates that the Veteran did not develop diabetes mellitus, type II during his period of active duty, and that “chemical diabetes” is not an incipient stage or cause of diabetes mellitus, type II, but is rather an indicator of a patient being at risk of later developing diabetes mellitus, type II. Service connection is therefore also not found warranted on a direct basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2.-6. Entitlement to service connection for erectile dysfunction, peripheral neuropathy of the bilateral upper and lower extremities as secondary to diabetes mellitus. Neither the Veteran nor the appellant has asserted, and the evidence does not otherwise indicate, that the claimed erectile dysfunction or peripheral neuropathy of the bilateral upper or bilateral lower extremities either arose during or are otherwise directly related to his military service on a direct basis. Rather, the assertion is that these disabilities represent complications of, or are secondary to, the Veteran’s diabetes mellitus, type II. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Because service connection for diabetes mellitus, type II has been denied, the claims for service connection of any residuals or disabilities on a secondary basis must also be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel