Citation Nr: 18147821 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-15 420A DATE: November 6, 2018 ORDER Entitlement to service connection for polymyositis is denied. Entitlement to service connection for scar of the left lung is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for any acquired psychiatric disorder, to include major depressive disorder with alcohol and drug abuse disorder is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hepatitis B and C is remanded. FINDINGS OF FACT 1. The Veteran’s polymyositis did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service. 2. The Veteran’s scar of the left lung did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service. 3. The Veteran was not exposed to an herbicide agent, including Agent Orange, during his service. 4. The Veteran’s diabetes mellitus did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for polymyositis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for service connection for a scar of the left lung have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). 3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1975. This matter is before the Board of Veterans’ Appeal (Board) on appeal from rating decisions issued in May 2013 and June 2015 by the Department of Veteran Affairs (VA) Regional Office (RO). Since the RO last considered the Veteran’s claims, in April 2016, additional evidence has been added to the Veteran’s claims file. The additional evidence includes VA treatment records. A waiver is not required with respect to the VA treatment records received in June and April 2017, as those records are merely cumulative of other records previously considered, and only reflect notations of medical history with respect to the claimed polymyositis, diabetes mellitus, and scar of the left lung. In other words, the recently received VA treatment records are not pertinent. Accordingly, the provisions of 38 C.F.R. § 20.1304 do not apply. Neither the Veteran nor his representative has raised any issues with respect to VA’s duty to notify or assist. The Board finds that no deficiencies in the duty to notify or assist are otherwise apparent from the record. In this regard the Board points out that VA examinations are not necessary for the issues decided herein, as the record does not establish that the Veteran suffered any in-service event that led to his diabetes mellitus, polymyositis, and a scar of the left lung, for reasons discussed in greater detail below. Absent competent evidence of an in-service event, or that the Veteran’s current disabilities are otherwise related to service, there is no obligation to provide the Veteran with VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also VAPOGCPREC 27-97, 72 Fed. Reg. 63604 (1997); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Service Connection The Veteran is seeking service connection for polymyositis, scar of the left lung, Hepatitis, and PTSD. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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). Establishing service connection generally requires medical or, in certain circumstances, lay 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, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption for certain chronic diseases, to include diabetes mellitus, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” If there is not sufficient evidence that the currently diagnosed chronic disease was chronic in service or within a presumptive period, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is demonstrated. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a). 1. Entitlement to service connection for polymyositis The Veteran contends that his polymyositis is related to his active military service. As to the first element of service connection, current disability, the Veteran’s medical treatment records indicate that the Veteran has a 2007 diagnosis of a polymyositis. Therefore, this element is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran’s polymyositis was incurred or aggravated during service. The objective medical evidence of record fully supports that conclusion. Review of the Veteran’s service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to polymyositis while on active duty. The first evidence of polymyositis is 32 years after service. The Veteran’s medical treatment records revealed that the Veteran’s claimed polymyositis could be likely related to diabetic neuropathy and fibromyalgia. The Board acknowledges the Veteran’s statements regarding his polymyositis. All of which the Veteran is competent and credible to report and entitled to a degree of probative weight, however all the Veteran’s statements regarding symptomology pertain to the determination of whether a current disability exists. The Board acknowledges that the Veteran has polymyositis, but whether the Veteran has a current disability is not at issue here. The question for the Board is whether there is a nexus between his claimed polymyositis and his military service. The Veteran, however, has not provided details alleging any in-service event or diagnosis that could be related to his claimed polymyositis. As discussed above, the service treatment records do not support the Veteran’s claim of onset of his disability during service. In fact, the Veteran was not diagnosed until many years after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran’s polymyositis is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for polymyositis is denied. 2. Entitlement to service connection for scar of the left lung. The Veteran contends that his scar of the left lung is related to his active service. When seeking service connection, the threshold requirement is that the Veteran demonstrates a current disability at some point during the pendency of the appeal. In the absence of competent evidence showing a current disability, service-connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Preliminarily, the Board notes that the Veteran’s treatment records throughout the period on appeal reflect no definitive diagnosis or treatment of scar of left lung. The Veteran’s service treatment records do not contain any notation, treatment, or diagnosis related to scar of left lung. The Veteran’s VA treatment records indicated that evidence showed evidence of prior granulomatous exposure with a small granuloma, left lower lobe, however no pulmonary disease was shown in the records. Moreover, the Board notes that the Veteran has not alleged or provided any evidence as to the connection between his claimed scar of left lung and his military service. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim. Brammer, 3 Vet. App. At 225; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes), 8 Vet. App. 517, 521 (1996). Thus, in the absence of competent evidence showing a current diagnosis of a scar of the left lung, it is unnecessary to address the remaining elements of the claim for service connection. See Brammer, 3 Vet. App. at 225. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that there is a current scar of the left lung, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for scar of the left lung is not warranted. 3. Entitlement to service connection for diabetes mellitus The Veteran contends that his diabetes mellitus is related to his military service. Moreover, the Veteran contends that he was exposed to an herbicide agent during service. VA has also established a presumption of service connection for certain diseases found to be associated with exposure to an herbicide agent. See 38 U.S.C. § 1116, 38 C.F.R. § 3.309 (e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307 (d). The term “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 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307 (a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). The Board notes that the Veteran did serve in during the presumptive period of January 9, 1962 to May 7, 1975, however, the Veteran did not serve in Vietnam, thus the Veteran is not presumed to have been exposed to an herbicide agent during his service in Vietnam. 38 C.F.R. § 3.307. Accordingly, as herbicide exposure is not established, service connection may not be established for diabetes mellitus on the basis that it is linked to such exposure, presumptively or otherwise. The record does not otherwise support service connection for diabetes mellitus. Review of the Veteran’s service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to diabetes mellitus while on active duty. The first evidence of diabetes mellitus is years after service. The Board acknowledges the Veteran’s statements regarding his diabetes mellitus. All of which the Veteran is competent and credible to report and entitled to a degree of probative weight, however all the Veteran’s statements regarding symptomology pertain to the determination of whether a current disability exists. The Board acknowledges that the Veteran has diabetes mellitus, but whether the Veteran has a current disability is not at issue here. The question for the Board is whether there is a nexus between his claimed diabetes mellitus and his military service. The Veteran, however, has not provided details alleging any in-service event or diagnosis that could be related to his claimed diabetes mellitus. As discussed above, the service treatment records do not support the Veteran’s claim of onset of his disability during service. In fact, the Veteran was not diagnosed until many years after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. Regarding the presumption in favor of chronic diseases and the continuity of symptomatology, the Board notes that the Veteran has been diagnosed with diabetes mellitus. For VA purposes, diagnosis of diabetes mellitus is a chronic disease, thus warranting consideration under 38 C.F.R. § 3.309(a). However, in order for the presumption under 38 C.F.R. § 3.309 to apply the disability must manifest to a compensable degree within one year of discharge from service. However, in this case it does not appears that the Veteran’s diabetes mellitus was diagnosed within a year of the Veteran’s discharge from service. The objective medical evidence indicates that the Veteran’s diabetes mellitus was diagnosed many years after service and did not manifest to a compensable degree within one year of discharge from service. Since the Veteran’s diabetes mellitus did not manifest to a compensable degree within one year of discharge from service and there is no evidence of a chronic disability in service, the presumption in favor of chronic diseases is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran’s diabetes mellitus is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for diabetes mellitus is denied. REASONS FOR REMAND 1. Entitlement to service connection for any acquired psychiatric disorder, to include major depressive disorder with alcohol and drug abuse disorder is remanded. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). The Veteran contends that an acquired psychiatric disorder was incurred or aggravated by his military service. The Veteran was afforded a VA examination in March 2014 to determine the nature and etiology of any claimed acquired psychiatric disorder. The examiner found that the Veteran had diagnoses of depressive disorder, alcohol use disorder, and stimulant use disorder. However, the examiner opined that the Veteran did not have a diagnosis of PTSD. The examiner provided that the Veteran’s depressive disorder was less likely than not due to his military service, but provided no rationale for his medical opinion. Additionally, the examiner found that the Veteran did not have a diagnosis of PTSD, however the examiner did not address the Veteran’s diagnosis of PTSD in his medical treatment records and failed to provide reasoning as to why the veteran does not suffer from PTSD. As such, the Board finds the March 2014 VA examination is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, a supplemental addendum opinion—based on full review of the record and supported by stated rationale—is needed to fairly decide the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 3. Entitlement to service connection for Hepatitis (B and C), to include as secondary to a depressive disorder with alcohol use disorder and stimulant use disorder is remanded. The Veteran also contends that his current hepatitis is related to his military service or secondary to his claimed acquired psychiatric disorder. The Veteran has asserted that his high-risk sexual activity and intravenous drug use contributed to his current hepatitis. The Veteran was diagnosed with a stimulant-abuse disorder in connection with his diagnosed depressive disorder. The Board notes that the Veteran has not been provided a VA examination in to determine the nature and etiology of his claimed hepatitis. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran’s claimed disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Due to the need for a remand in this matter, the Board will also provide the opportunity for the procurement of any outstanding VA or private medical records. The matter is REMANDED for the following actions: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain any additional evidence from all VA and non-VA health care providers who have treated him for his any acquired psychiatric disorder and hepatitis that is not currently of record, including any private treatment records related to ongoing treatment for the aforementioned disabilities. If the Veteran responds, assist him in obtaining any additional evidence identified, following current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After all records and/or responses received from each contacted entity have been associated with the claim (to the extent possible), forward the record and a copy of this remand to the VA clinician who performed the March 2014 VA mental disability examination or, if that clinician is not available, to another similarly qualified VA clinician for preparation of an addendum opinion. Further in-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination necessary to provide the information requested below, then such an examination should be scheduled. Following a review of the record, the examiner must address the following: (a) Provide diagnoses for any acquired psychiatric disorder, to include those noted during the appeal period. (b) The examiner should provide whether the Veteran has a diagnosis of PTSD and shall provide a complete rationale if the examiner finds that a diagnosis of PTSD is inappropriate in this case. The examiner must address the Veteran’s diagnosis of PTSD in his medical treatment records. (c) Is it at least likely as not (a fifty percent probability or greater) that the Veteran’s depressive disorder is related to his active duty service? (d) Is it at least likely as not (a fifty percent probability or greater) that any other acquired psychiatric disorder is related to his active duty service? The examiner should consider the lay testimony aand medical evidence of record. A detailed rationale supporting the examiner’s opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of his claimed hepatitis. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Is it at least likely as not (a fifty percent probability or greater) that the Veteran’s hepatitis is related to his active duty service, to include in-service sexual behavior and drug-use? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis was caused by any claimed acquired psychiatric disorder, to include a depressive disorder with alcohol and drug abuse? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis was chronically worsened (aggravated) by any claimed acquired psychiatric disorder, to include a depressive disorder with alcohol and drug abuse? The examiner should consider the lay testimony of record. A detailed rationale supporting the examiner’s opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel