Citation Nr: 18147595 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-39 418 DATE: November 5, 2018 ORDER Entitlement to service connection to diabetes mellitus, type II (diabetes) is denied. Entitlement to service connection for hypertension, to include as secondary to service connected disability is denied. FINDINGS OF FACT 1. The Veteran did not serve in country or in the inland waterways of the Republic of the Vietnam during the Vietnam era, and the preponderance of the evidence is against finding that he was exposed to herbicide agents in active service. 2. The preponderance of the evidence is against a finding that diabetes began during active service; diabetes did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and it is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that hypertension began during active service or that it was manifest to a compensable degree within a year of service; continuity of symptomatology is not established; is neither proximately due to nor aggravated beyond its natural progression by his service-connected disabilities, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection to diabetes have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1983 to October 1991, including 3 years of foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Air Force Achievement Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as diabetes and hypertension (as a manifestation of a cardiovascular- renal disease). See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3). In addition, a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. As discussed below, the Veteran asserts he was exposed to herbicide agents commonly referred to as Agent Orange. He was stationed on Guam from July 1989 to July 1991. He also asserts he was exposed to Agent Orange or other herbicides while on temporary duty at Eglin Air Force Base, Florida, and Okinawa. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to an herbicide agent (e.g., Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. In the instant case, the Veteran did not serve in Vietnam between January 1962 to May 1975 and therefore, the presumption of exposure to Agent Orange does not apply. As noted, however, the Veteran asserts his exposure occurred elsewhere. While the Veteran is not entitled to a regulatory presumption of service connection, the Board will also review his claim to determine if service connection can be established for diabetes on a direct basis, including evidence of herbicide exposure. Diabetes is a disability subject to the presumption granting service connection for Veterans found to have been exposed to herbicide agents. 38 C.F.R. § 3.309(e). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran’s Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994). Service connection may be granted for a 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). 1. Entitlement to service connection to diabetes As discussed above, service connection for a disability requires competent evidence of a disease contracted, an injury suffered, or an event experienced in active service. The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service treatment records include no findings related to either treatment for, or diagnoses of, diabetes (or diabetes mellitus). The records establish service in Guam. The Veteran believes his exposure to Agent Orange occurred when he was assigned in Guam to clean up a diesel fuel spill which included digging and removing soil. He also contends he was in a swampy area at Eglin Air Force Base (AFB) in Florida on a temporary duty assignment, where he believes Agent Orange was used. He also believes Agent Orange was present in Okinawa, which is another place he had a temporary assignment. In October 2012, the RO made a formal finding that there was insufficient information to verify Agent Orange exposure from the Joint Services Records Research Center (JSRRC) or any other appropriate source after obtaining the Veteran’s personnel file and sending letters to the Veteran requesting more information. The medical evidence establishes that the Veteran has been diagnosed with diabetes. The date of onset or diagnosis, however, is not reported by those records. The earliest record is dated in June 2010 when the Veteran started treatment at the VA Medical Center (VAMC). At that time, testing established the Veteran was diabetic but he reported he had already been told he had diabetes. He did not report when he was first diagnosed with diabetes. The Board finds that the evidence of record establishes that the Veteran’s diabetes did not manifest in service, was first diagnosed many years after service separation, were not caused by an in-service event or injury, including exposure to herbicides such as Agent Orange, and is not related to active service. First, there was no evidence of exposure of the Veteran to herbicides (Agent Orange) while serving in Guam, Eglin AFB, or Okinawa. The RO stated that in this case, the evidence was insufficient for VA to acknowledge Agent Orange exposure on either a presumptive or direct facts-found basis in the October 2012 memorandum. The Veteran has not submitted any competent evidence to support his assertions or provided the information for VA to ascertain exposure to herbicides such as Agent Orange. The evidence does not show that the Veteran’s service both by time and location exposed him to herbicides such as Agent Orange. Thus, the Board finds that the evidence is insufficient to acknowledge Agent Orange exposure on either a presumptive or direct facts-found basis for the service in Guam, Okinawa, or Eglin AFB at the times he was stationed at each location. Furthermore, the records do not document the use, storage, spraying, or transportation of tactical herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the Veteran or his unit involving Agent Orange. The Board finds that the claim of service connection for diabetes on a presumptive basis as due to Agent Orange exposure must fail because the herbicide presumption set forth in 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 does not apply. Service connection could still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the Board has considered whether there is otherwise a direct link between the Veteran’s diabetes mellitus and service. His service treatment records make no mention of diabetes and he has also not alleged that his diabetes mellitus had an onset in service. The record first notes a diagnosis of diabetes mellitus in 2010 – almost 20 years after his separation from service and well outside of the period for presumptive service connection for diabetes mellitus as a chronic disease manifested to a compensable degree within the first post-service year. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no probative medical evidence or medical opinion suggesting that there may be an association between diabetes and any incident of the Veteran’s service. The Veteran’s VAMC treatment records reflecting a diagnosis of diabetes include no comment or opinion relating the diagnosis to diabetes to service or its cause. The Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is no duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The record in this case is negative for any indication that the Veteran’s disability is associated to service. There is no evidence of diabetes in active service or any association to service. There is probative evidence establishing that diabetes manifested many years after service and there is sufficient competent evidence on file for the Board to decide on the claim. As such, the Board finds VA’s duty to provide an examination with an opinion is not triggered. See Waters, 601 F.3d 1274; McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The Board recognizes the Veteran has cited other Board decisions, asserting any finding of Agent Orange exposure in those decisions are precedent to finding the Veteran was exposed to Agent Orange while stationed in Guam. Other Board decisions, favorable or unfavorable, are not binding upon the Board in this decision, see 38 C.F.R. § 20.1303, The Veteran himself has asserted that his current diabetes is related to active service and is related to the exposure to herbicides in active service. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). 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, an opinion as to a medical diagnosis or medical causation falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions. The evidence does not establish that the Veteran has medical expertise. Thus, the Board finds that Veteran is not competent to render a medical diagnosis or provide an opinion as to the cause for diabetes. This includes the Veteran stating that he was exposed to Agent Orange during service. Therefore, while the Board acknowledges that the Veteran is currently diagnosed with diabetes, there is no indication of any diagnosis during service or within the one-year period thereafter. In addition, after considering the length of time between service and post-service diagnosis and determining that the Veteran does not meet the requirements for any relevant presumptions, including Agent Orange exposure, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for diabetes. 2. Entitlement to service connection to hypertension The Veteran has been diagnosed with hypertension, which he asserts is caused by diabetes. The Board, is expanding the scope of the claim to encompass causation by any service connected disability raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (scope of a claim cannot be limited to a lay Veteran’s assertions of his conditions) According to VA Training Letter 00-07 (July 17, 2000), hypertension is present if the diastolic blood pressure is 90 mm Hg or more or the systolic pressure is 140 mm Hg or more, or if both are present. In isolated systolic hypertension, the systolic pressure is 140 mm Hg or more, but the diastolic pressure is less than 90 mm Hg. See also Duenas v. Principi, 18 Vet. App. 512, 520 (2004) (citing Dorland’s Illustrated Medical Dictionary 801 (28th ed. 1994).) Under VA rating criteria, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101. Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds that the weight of the competent and credible evidence establishes that the Veteran’s hypertension did not manifest in service, was first diagnosed many years after service separation, was not caused by an in-service event or injury, and is not related to active service, and were not caused or aggravated by a service-connected disability. As just discussed, the Board has determined that the Veteran’s diabetes is not a service connected disability. As such, the Veteran is not entitled to service connection for hypertension because it may be caused or aggravated by the Veteran’s diabetes. As to any of his service connected disabilities such as his various service connected joint disabilities, there is no probative medical evidence or medical opinion suggesting that there may be an association between hypertension and any of the Veteran’s service connected disabilities. The Veteran’s VAMC treatment records reflecting a diagnosis of hypertension include no comment or opinion relating the diagnosis to its cause. In a similar manner, for the reasons discussed above, the probative weight is against finding herbicide exposure played a role in the Veteran’s hypertension. Service connection for hypertension could still be granted on a direct basis; however, the preponderance of the evidence is against finding that a nexus exists between the Veteran’s hypertension and an in-service injury, event or disease. Again, there is no probative medical evidence or opinion suggesting an association between hypertension and service, including VAMC records. The Board notes that over the Veteran’s eight years in service, there were a few elevated blood pressure readings: 139/70 (December 1987), 130/90 (June 1986), 146/94 (September 1991), 140/88 (January 1990), 142/82 (August 1987). The Board notes on one occasion, in September 1988, the Veteran’s initial blood pressure reading was 132/94 but two subsequent readings that same day were 120/78 and 120/82. The Board also notes that the blood pressure readings were normal after any other elevated blood pressure reading noted. Service treatment records do not reflect any complaints, report of symptoms, treatment, or diagnosis of hypertension in service even at the treatments with the elevated blood pressure readings. In this case, while the Veteran had an occasional elevated blood pressure reading during service, he was not diagnosed with hypertension during service and the blood pressure readings during service do not show diastolic blood pressure predominately 90 or more or systolic blood pressure predominately 160 or more or otherwise meet the definition of hypertension as prescribed in the relevant regulation. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Thus, the evidence is against a finding of in-service incurrence. The first post-service indication of hypertension is a VAMC note in June 2010 with the Veteran reporting he had already been diagnosed with hypertension but did not report the date of onset or diagnosis. As June 2010 is more than one year after separation, hypertension is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). The Board recognizes that documentation of hypertension is not required, Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006), but rather, the Board has weighed the negative evidence of the service treating medical records and subsequent treating records against the Veteran’s statements that an injury, disease, or event in service resulted in the onset or has caused him hypertension problems since separation to the present. The Veteran’s post-service medical records are negative for complaints, symptoms, treatment, findings, or diagnoses for nearly 20 years following separation. Moreover, there is no probative medical evidence or medical opinion suggesting that there may be an association between hypertension and any incident of the Veteran’s service. The Veteran’s VAMC treatment records reflecting a diagnosis of hypertension include no comment or opinion relating the diagnosis to diabetes to service or its cause. For the same reasons discussed above regarding diabetes, the Board finds VA’s duty to provide an examination with an opinion is not triggered. See Waters, 601 F.3d 1274; McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). Furthermore, as also discussed above, although a veteran is competent to describe symptoms that he can perceive through the use of his senses and to give evidence about what he has experienced, Jandreau, supra; Layno, supra, whether the symptoms the Veteran experienced in service or following service are in any way related to his current hypertension requires medical expertise to determine. Clyburn, supra. Thus, the Veteran’s own opinion regarding the etiology of his current hypertension is not competent medical evidence. In summary, the preponderance of the evidence is against a finding that the Veteran has hypertension that was caused or aggravated by service. Thus, the claim for service connection is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel