Citation Nr: 18149462 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-38 463 DATE: November 9, 2018 ORDER Service connection for type 2 diabetes mellitus (DM) is denied. REMANDED Service connection for a lung disorder to include pleural plaque thickening due to asbestos exposure is remanded. Service connection for hepatitis C is remanded. FINDING OF FACT The Veteran’s DM did not manifest in service, or to a compensable degree within the applicable presumptive period, and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for DM are not met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1970 to July 1972. On his substantive appeal, the Veteran requested a Travel Board hearing. In a November 2016 statement, the Veteran withdrew his hearing request. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (e). Service Connection 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, 1131, 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). Certain chronic diseases will be presumed related to service if such diseases were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 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. 1. Entitlement to service connection for DM. The Veteran contends that his DM is related to his military service, including exposure to herbicides. The question for the Board is whether DM manifested in service, was manifest to a compensable degree within an applicable presumptive period, or is otherwise related to service. The Board concludes that, while the Veteran has a current diagnosis of DM, which is a chronic disease under 38 U.S.C. § 1101 (3);38 C.F.R. § 3.309 (a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker, supra; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). VA treatment records show the Veteran was not diagnosed with DM until October 2007, 35 years after his separation from service and 34 years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of diabetes since service, he is not competent to provide a diagnosis in this case or determine that any purported symptoms were manifestations of DM. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In a March 2012 statement, the Veteran’s representative asserted that the Veteran’s DM was secondary to herbicide exposure; however, the Veteran did not serve in the Republic of Vietnam and the Veteran has not asserted that he handled or was otherwise exposed to herbicides. Thus, to the extent that the Veteran’s DM is related to any herbicide exposure, there is no corroborative evidence of herbicide exposure during his military service. Service connection for DM may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s DM and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). In December 2013, the Veteran asserted that he was diagnosed with DM in service; however, service treatment records (STRs) are negative for any findings related to diabetes. None of the post-service evidence provides any probative medical findings relating the Veteran’s DM to service. While the Veteran believes his DM is related to an in-service injury, event, or disease, including exposure to herbicides, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Based on the foregoing, the Board finds that service connection for DM is not warranted. REASONS FOR REMAND 2. Entitlement to service connection for a lung disorder to include pleural plaque thickening due to exposure to asbestos is remanded. In a December 2013 statement, the Veteran contended that he was exposed to asbestos in service. He stated that he was tasked with cleaning barracks that had asbestos covered pipes and asbestos flooring, which the Veteran believed caused his pleural plaque thickening. In February 2012, the Veteran was diagnosed with left pleural calcifications that may be secondary to asbestos exposure. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the appellant’s claim of entitlement to service connection for pleural plaque thickening under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). The DVB Circular does not create a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). The only evidence of record regarding asbestos exposure are the Veteran’s statements, which have not been objectively corroborated. Efforts should be made to determine whether there is any objective evidence that the Veteran was exposed to asbestos during his service. 3. Entitlement to service connection for hepatitis C is remanded. In a December 2013 statement, the Veteran contended that he contracted hepatitis C by sharing razors, drinking cups, and cigarettes in-service. STRs are silent of treatment or diagnoses of hepatitis C, but showed that the Veteran had numerous immunizations during his active duty service. In 2006, the Veteran noted that he stopped taking all street drugs in the late 1970s and that he used many common street drugs. In August 2008, the Veteran was diagnosed with hepatitis C. The Board cannot make a fully-informed decision on the issue of a hepatitis because no VA examiner has opined whether the conditions are attributable to the Veteran’s active duty service. The matters are REMANDED for the following action: 1. Contact the National Personnel Records Center and any other appropriate repository of records, and request that they provide any available information about the types of hazardous chemicals that the Veteran would have been exposed to, including asbestos, as a corrections specialist in the United States Army at Fort Ord and Fort Gordon from December 1970 to July 1972. If the service department is unable to furnish such records, ask the service department to identify any other resource for such information. 2. Schedule a VA examination to determine the nature and etiology of the Veteran’s lung disorder characterized as pleural plaque thickening, with respect to the claimed asbestos exposure. The file must be reviewed by the examiner in conjunction with the opinion provided. After reviewing the claims folder including lay statements, service treatment records and treatment medical records, notation to the effect that this record review took place should be included in the report, and the VA examiner is requested to provide an opinion for the Veteran’s pleural plaque thickening, specifically whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset during the Veteran’s active service or is otherwise causally related to his service, to include the claimed asbestos exposure. A complete rationale for all conclusions expressed should be set forth in the report of examination. If the examiner is unable to provide the requested opinions without resort to undue speculation, he or she should explain why this is the case. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his hepatitis C. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that his hepatitis C had its clinical onset during service or is related to any in-service disease, event, or injury, including his in-service immunizations and sharing of utensils. In answering the question, the examiner should consider and weigh any hepatitis C risk factors shown by the record, including the Veteran’s reported history of drug use. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel