Citation Nr: 18148802 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-13 069 DATE: November 8, 2018 ORDER Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertension is remanded. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus is remanded. FINDING OF FACT There is no probative evidence of record indicating that the Veteran has a diagnosis of diabetes mellitus, to include type II diabetes mellitus; thus, there is no current disability to attribute to his active military service, to include any presumed exposure to Agent Orange in Vietnam. CONCLUSION OF LAW Diabetes mellitus, to include type II diabetes mellitus, was not incurred or aggravated inservice, and it may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from October 1966 to October 1969, to include service in the Republic of Vietnam. This comes before the board from a January 2013 rating decision by the regional office located in St. Petersburg Florida. With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Service Connection Generally, to provide service connection, a Veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a). Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as "chronic." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Diabetes mellitus is a "chronic" disease for VA purposes. 38 U.S.C. § 1101. Chronic diseases that become manifest to a degree of 10 percent within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam War. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if 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; those diseases include type II diabetes mellitus. 38 C.F.R. § 3.309 (e). A key element in establishing service connection is evidence showing that the Veteran currently has a diagnosis or symptoms of the disability for which service connection is sought. 38 U.S.C. § 1110; 38 C.F.R. 3.303. In this case, there is no clinical evidence in the claims file diagnosing diabetes mellitus, to include type II diabetes, in accordance with applicable law. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Diabetes mellitus The Veteran asserts that he has type II diabetes mellitus as result of his presumed exposure to herbicides during active duty service in the Republic of Vietnam. As the Veteran served in Vietnam his exposure to an herbicide agent is presumed. The Veteran has reported that he was diagnosed with peripheral neuropathy secondary to type II diabetes mellitus, and should therefore be service connected for type II diabetes mellitus, due to that disorder being a presumptive disease. 38 C.F.R. § 3.307. The basis of the claim appears to be incidents of high blood sugar, a history of pre-diabetes, and a note about the Veteran having peripheral sensory neuropathy likely due to glucose intolerance. The Veteran was provided VA examination in December 2012, however, that examination found that the Veteran did not have type II diabetes mellitus. The examination noted slightly elevated sugar levels. VA treatment notes from October 2015 note that the Veteran has a history of pre-diabetes, but no diagnosis of type II diabetes mellitus is found anywhere in the available medical records. While the Veteran is competent to report what comes to him through his senses (see Layno v. Brown, 6 Vet. App. 465 (1994)), he is not competent to diagnose type II diabetes mellitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (“Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.”). Additionally, the Board finds that the Veteran has not demonstrated the medical knowledge or skill to diagnosis himself with a disorder as complex and as type II diabetes mellitus. Id. The Board may not grant the Veteran service connection when a disability is not demonstrated. Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C. § 1110. The evidence reflects that the Veteran does not have diagnosis of type II diabetes mellitus, and thus does not have a disability for VA purposes. In the absence of proof of current disability, this claim of service connection cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim and the doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran is advised that should he be diagnosed with type II diabetes mellitus at any time in the future he should submit medical evidence of that diagnosis to VA, and request that his claim be reopened. The claim would then be reevaluated based on the evidence available at that time. REASONS FOR REMAND Hypertension VA has not conceded a relationship between hypertension and herbicide agents, and prior to 2006 the National Academy of Sciences (NAS) placed hypertension in the “inadequate or insufficient evidence” category. However, in its 2006 Update, NAS elevated hypertension to the “limited or suggestive evidence” category. The 2012 Update provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). The NAS updates are published in the Federal Register by VA, and thus VA is on notice as to the information contained therein. The 2012 Update notes that NAS has defined this category of limited or suggestive evidence to mean that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Id. at 20,309. The suggestive evidence of an association can arguably be sufficient to establish an “indication” that the current disability “may be related” to herbicide agent exposure during service, as contemplated by 38 U.S.C. § 5103a(d)(2)(b). The United States Court of Appeals for Veterans Claims has stated that there is a “low threshold” when assessing the need for a medical examination. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Furthermore, the Court has held in multiple memorandum decisions that VA’s acknowledgment in the Federal Register that there is “limited or suggestive evidence,” of an association between herbicide agent exposure and hypertension was relevant to the question of whether a VA examination was warranted in connection with a claim for service connection for this disability and the failure to discuss the Federal Register NAS findings made the Board’s reasons or bases inadequate, warranting vacatur and remand. 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014); Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12-2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013); Allsopp v. Shinseki, No. 12-1847 (Vet. App. Aug. 27, 2013). The medical evidence of record does not include an opinion as to the etiology of the Veteran’s hypertension, to whether it may be due to herbicide agent or other chemical exposure. As the Veteran has a current diagnosis of hypertension, and as Court has acknowledged that there is limited or suggestive evidence of an association between herbicide agent exposure and hypertension, a remand for a medical nexus opinion is warranted to decide the claim. Tinnitus Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Prior to March 24, 2015, a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result constituted a notice of disagreement. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written must be considered in determining whether it constitutes a notice of disagreement. Jarvis v. West, 12 Vet. App. 559, 561 (1999). All communications should be liberally construed. See id. at 561-62. A March 2015 rating decision denied entitlement to service connection for tinnitus. The Veteran responded to this rating decision in a statement from April 2015. Liberally construing the document in the Veteran’s favor, the Board finds that it constitutes a notice of disagreement with the service connection denial. As VA has not issued a statement of the case on this claim, it must be remanded for this development. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Request an opinion from an appropriate specialist physician addressing the etiology of the Veteran’s hypertension. The Veteran’s VBMS and Virtual VA/Legacy files, and a copy of this remand, must be provided to and reviewed by the examiner. In providing the requested opinion, the examiner must specifically consider and discuss all pertinent medical and lay assertions and the service treatment records. All finding results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. The physician must opine whether it is at least as likely as not (50 percent probability or greater) that hypertension had its onset in service or within the one year following service, or is otherwise related to the Veteran’s service. The physician must further specifically address appropriate medical literature, to include, but not limited to, the findings by VA and the Institute of Medicine that there is “limited or suggestive evidence” of a relationship between herbicide agent exposure and hypertension. The fact that hypertension is not on the list of diseases presumed service connected in veterans exposed to herbicide agents should not be the basis for a negative opinion, as the Veteran may still establish that hypertension was actually caused by his exposure to herbicide agents. The examiner is asked to opine whether it is at least as likely as not (at least a 50 percent probability) in this specific case that the Veteran’s hypertension is related to herbicide agent exposure. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. Issue the Veteran a statement of the case addressing whether new and material evidence has been presented sufficient to reopen a claim of entitlement to service connection for tinnitus. The Veteran is advised that the   Board will not exercise appellate jurisdiction over any claim that has not been timely perfected. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel