Citation Nr: 18144734 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-06 148 DATE: October 25, 2018 ORDER Entitlement to service connection for diabetes mellitus type 2 is denied. Entitlement to service connection for seizures is denied. Entitlement to non-service connected pension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that diabetes mellitus type 2 began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that seizures began during active service, or are otherwise related to an in-service injury, event, or disease. 3. The Veteran is not shown to be unemployable by reason of disability, age, education, and occupational history. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for seizures have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to non-service connected pension have not been met. 38 U.S.C. §§ 1502, 1521, 1523; 38 C.F.R. §§ 3.340, 3.342, 4.15, 4.16, 4.17, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; multiple myeloma; non- Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 1. Entitlement to service connection for diabetes mellitus type 2 The Veteran contends that his diabetes mellitus is due to service. 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 Board concludes that, while the Veteran has a diagnosis of diabetes mellitus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). At the Veteran’s June 2018 Board hearing (VACOLS), he testified that he was stationed aboard the U.S.S. Enterprise, as a store keeper. He stated that he never set foot in Vietnam or took a flight to Vietnam. He stated that he could not recall ever having been exposed to herbicides. He stated that none of his doctors have ever given him an idea as to how he got diabetes. He testified that he could not recall being exposed to any hazardous materials during service. He was asked whether he remembered any material dripping off of the planes that he was loading and offloading. He answered “yes.” He denied ever being covered in it; but suggested that some might have gotten on his clothes. He testified that he was diagnosed with diabetes in 2011. When asked why he should be service connected for diabetes, he testified that “no one in my family has ever had it…and I feel that I served my country, I think they could do something for me.” (VACOLS, Transcript, pgs. 3-5). Service treatment records, including separation examinations dated June 1976 and May 1984, fail to reflect any findings attributed to diabetes. Post service private treatment records dated December 2012 to December 2013 reflect that the Veteran has been diagnosed with diabetes mellitus type 2. There is no indication that it was due to service. The Veteran would be entitled to service connection for diabetes mellitus if he was exposed to herbicides. Additionally, he will have been presumed to have been exposed to herbicides if he set foot in Vietnam. However, in this case, there is no evidence that the Veteran set foot in Vietnam or was otherwise exposed to herbicides. To the contrary, he explicitly denied setting foot in Vietnam and he did not recall being exposed to herbicides or other hazardous materials. Moreover, he acknowledged that no medical professional has suggested that diabetes mellitus (which was diagnosed more than 25 years after discharge from service) is related to service. The Board finds that there is no evidence that the Veteran’s diabetes began during service. It is not noted in the service treatment records; and the Veteran explicitly stated that it was not diagnosed until 2011. Moreover, there is no evidence that the Veteran set foot in Vietnam or was exposed to herbicides or other hazardous materials. Consequently, the Board finds no theory of entitlement under which service connection could be granted. To the extent that the Veteran has suggested that diabetes mellitus might be due to a substance dripping off of the sides of planes or helicopters and getting onto his clothing, the Board finds that the testimony is so vague and unspecific that it could not possibly be verified; nor could any competent nexus opinion be rendered. While the Veteran may believe that his diabetes mellitus is related to service, the Board reiterates that the preponderance of the evidence weighs against a finding that diabetes mellitus began during or is causally linked to service. 2. Entitlement to service connection for seizures At the Veteran’s June 2018 Board hearing, he testified that he began having seizures in 2012; that he was placed on medications; and that he has not had any seizures since that time (VACOLS, Transcript, p. 9). He testified that he had a bunch of shots before he was deployed, but he did not remember which ones (VACOLS, Transcript, pgs. 9-10). He was asked if any doctors have told him that the seizures could have been caused by the shots he received or as a reaction to medication. The Veteran responded in the negative. He admitted that he really doesn’t know what caused the seizures (VACOLS, Transcript. P. 10). Service treatment records, including separation examinations dated June 1976 and May 1984, fail to reflect any findings attributable to seizures. Post-service private treatment records dated December 2012 to December 2013 reflect that the Veteran has been diagnosed with seizures. There is no indication that they were due to service. Once again, the Board finds that there is no evidence that the Veteran’s seizures began during service. They are not noted in the service treatment records and the Veteran explicitly stated that they began in 2012. He testified that he received shots during service, but he does not remember what medications he was given. Moreover, he admits that no medical professional has attributed his seizures to medications. In the absence of any in-service findings and in the absence of any medical evidence that the Veteran’s seizures are due to service, the Board finds no theory of entitlement under which service connection could be granted. While the Veteran may believe that his seizures are related to service, the Board reiterates that the preponderance of the evidence weighs against a finding that seizures began during or are causally linked to service. 3. Entitlement to non-service connected pension Basic entitlement to non-service-connected pension exists if a Veteran meets the service requirement and is permanently and totally disabled, not the result of the Veteran’s willful misconduct. In this instance, the Veteran served on active duty for at least 90 days during a period of war and therefore meets the service requirements for entitlement to non-service connected pension benefits. 38 U.S.C. § 1521; 38 C.F.R. § 3.3 (a)(3). A finding of permanent and total disability requires rating each disability under the appropriate diagnostic code of the Schedule for Rating Disabilities, to determine whether the Veteran has a combined 100 percent schedular rating for pension purposes. Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). Permanent and total disability evaluations for pension purposes will be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary, or familial conditions, as well as for disabilities that require indefinite periods of hospitalization. 38 C.F.R. § 3.342 (b). Alternatively, permanent and total disability for pension purposes may be established even absent a combined 100 percent schedular evaluation by showing that the Veteran is unemployable as a result of disability reasonably certain to continue throughout the life of the person; or suffering from a lifetime disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1502; 38 C.F.R. §§ 3.3, 3.340, 4.15. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the Veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the Veteran’s disabilities render him unemployable. See 38 C.F.R. § 4.17. As noted above, the Veteran testified that he has not had any seizures since 2012. At the Veteran’s June 2018 Board hearing, he was asked about how diabetes affects his life. He stated that he has to take pills every day and that he is on insulin (VACOLS, Transcript, p. 5). There was no indication that either the Veteran’s seizures or diabetes (or both taken together) render him permanently and totally disabled. To the contrary, the Veteran testified that he has been working at a transport company, as a pilot driver for mobile homes. He began working there in approximately 2014. The Veteran’s representative explicitly stated that “because you’re working, you would not be entitled to the non-service connected pension because that’s a dollar-for-dollar offset, unfortunately.” (VACOLS, Transcript, pgs. 11-12). (Continued on the next page)   After considering all the evidence of record, the Board finds that the criteria for entitlement to a non-service-connected pension have not been met. Specifically, the Veteran’s disabilities, which include diabetes mellitus and seizures have not prevented him from engaging in employment since 2014. As such, any impairment to employment that might have been shown prior to that time period cannot, by definition, have been permanent and total. As a result, the criteria of permanent and total disabilities which prevent employment have not been met and the benefit cannot be granted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel