Citation Nr: 18151244 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-45 040 DATE: November 16, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II (DM), to include as due to exposure to herbicide agents, i.e., Agent Orange (AO) is denied. REMANDED Entitlement to service connection for peptic ulcers, to include as due to AO exposure is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremity (BLE), to include as due to AO exposure is remanded. Entitlement to a total disability rating by reason of individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran does not have a clinical diagnosis of DM. CONCLUSION OF LAW The criteria for service connection for DM have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to November 1970, including service in the Republic of Vietnam (Vietnam). These matters come before the Board of Veterans’ Appeals (Board) on appeal from an September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 1. Entitlement to service connection for DM, to include as due to exposure to herbicide agents, i.e., AO Legal Principles Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Because “Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a veteran “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). “In the absence of proof of a present disability there can be no valid claim.” Brammer, supra. Discussion Based on a review of the evidence, the Board finds that service connection is not warranted for the Veteran’s claimed DM. The medical evidence simply does not show the condition is present. To that extent, the Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury in service. See 38 U.S.C. § 1131. In the absence of a current disability, the analysis ends, and the claim for service connection for a foot disability cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In making this finding, the Board notes that medical treatment records dated in June 2011 reflect slightly elevated blood glucose levels characterized as pre-diabetes. Similarly, medical treatment records dated in June 2014 reflect, in pertinent part, slightly elevated blood glucose levels characterized as pre-diabetes. At that time, the Veteran was advised to continue compliance with diet and exercise regiments and continue to monitor glucose levels. Pre-diabetes is defined as state of latent impairment of carbohydrate metabolism, in which the criteria for DM are not all satisfied; often controllable by diet alone. Dorland’s Illustrated Medical Dictionary, 1509 (32nd ed. 2012). Pre-diabetes is not considered a disability for VA purposes. This is echoed by the VA examination provided in October 2017. Report of the October 2017 VA examination reflects, in pertinent part, the examiner’s assessment that the Veteran does not meet the medical criteria for a clinical diagnosis of DM. The Board accords significant probative weight to the October 2017 VA examination. The Board finds that the findings of the October 2017 VA examiner, in conjunction with the medical evidence of record, to be the most probative evidence of record as to whether the Veteran presently has the claimed disability. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for DM. 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 claims for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for peptic ulcers, to include as due to AO exposure is remanded. As a preliminary matter, the Board notes that the RO did not provide the Veteran with an examination with respect to this claim. VA’s duty to assist includes providing a medical examination when such is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). As indicated above, the Veteran served on active duty from April 1969 to November 1970, including verified in-country service in Vietnam from September 1969 to November 1970. As such, VA has conceded exposure to AO. 38 C.F.R. § 3.307(a)(6)(iii). Certain listed medical conditions, e.g., peptic ulcers, may be granted service connection on a presumptive basis due to such exposure if it manifested to a compensable degree within the applicable time limits under 38 C.F.R. § 3.307. Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (“The presumptive provisions of the statute and [VA] regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.”). The Veteran’s service treatment records (STRs) dated in May 1969 reflect the Veteran presented with stomach pains. Similarly, records dated in December 1969 noted the Veteran presented with complaints of stomach pain and/or cramps. At that time, the physician ruled out peptic ulcers. STRs dated in November 1970, i.e., the Veteran’s separation examination, reflects normal findings after clinical evaluation. In a statement dated in January 2013, the Veteran admitted next experiencing “bleeding ulcers” in 1976 and 1986, respectively. Post-service medical treatment records dated in March 2010 reflect a history of bleeding stomach ulcers, albeit the records did not differentiate between acute or chronic. Medical treatment records dated in November 2017 reflect, in pertinent part, a diagnosis of gastroesophageal reflux disease (GERD). Given the symptomatology described by the Veteran and documented in the STRs, it is at least possible that the stomach pains the Veteran experienced were an early manifestation of the subsequently diagnosed ulcers. In light of the foregoing, the Board finds that a remand in order to obtain a medical examination and opinion commenting on the evidence of record, including the significance of the stomach pain in service, and whether it indicates an early manifestation of the Veteran’s peptic ulcers, is necessary in order to adjudicate the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 2. Entitlement to service connection for peripheral neuropathy of the BLE, to include as due to AO exposure is remanded. As indicated above, certain listed medical conditions, e.g., early-onset peripheral neuropathy and progressive muscular atrophy, may be granted service connection on a presumptive basis due to such exposure if it manifested to a compensable degree within the applicable time limits under 38 C.F.R. § 3.307. The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. Combee, supra. The Veteran’s STRs are negative for any complaints of, treatment for, or diagnosis of peripheral neuropathy in service. In a statement dated in January 2013, the Veteran reported that the “first problems [with pain in his right leg] occurred in [the] early 80s,” and has progressively worsened since. This is consistent with medical treatment records dated in September 2012, wherein the Veteran reported weakness in the right lower extremity with onset in the 80s. The Veteran believes his peripheral neuropathy is caused by exposure to AO in service. The Board notes the variously diagnosed bilateral lower extremity disabilities of record. Post-service medical treatment records dated in September 2012 reflect the Veteran presented with bilateral lower extremity weakness and sensory loss. At that time, the Veteran was diagnosed with polyneuropathy. Medical treatment records dated in March 2012 reflect a history of progressive muscular atrophy of the right lower extremity. Medical records dated in July 2014 reflect the Veteran presented with lumbar back pain with intermittent numbness extending into the right lower extremity. At that time, the physician noted there is no “clear-cut right sided nerve root impingement.” However, the examiner did note the presence of “some atrophy of the right psoas muscle of uncertain significance and etiology.” Conversely, medical treatment records dated that same month (by another private provider) noted similar symptoms and diagnosed the Veteran with sciatica of the bilateral lower extremity. Medical treatment records dated in September 2014 reflect a diagnosis of lumbosacral spondylosis with neuritis and/or radiculitis. Medical records dated in October 2014 reflect a provisional diagnosis of peripheral autonomic neuropathy. Medical treatment records dated in May 2017 reflect a diagnosis of peripheral neuropathy. (Parenthetically, the Board notes that the Veteran is not service-connected for any lumber disability.). In a statement dated in July 2013, the Veteran explained that the reason he did not seek treatment for such condition sooner was due to his lack of understanding of the condition. Rather, he just “lived with it.” But, it eventually got so bad, i.e., difficulty walking, that he decided to seek treatment. In light of the foregoing, the Board finds that a remand in order to obtain a medical examination and opinion commenting on the evidence of record is necessary in order to adjudicate the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 3. Entitlement to TDIU is remanded. Given the above determination, the Board finds that it must remand the issue of entitlement to a TDIU as inextricably intertwined with the Veteran’s claims for peptic ulcers and peripheral neuropathy of the BLEs, as the adjudication of these issues may affect the Veteran’s eligibility for TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (stating two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of the Veteran’s claimed peptic ulcers. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history and examination of the Veteran, the VA examiner must offer an opinion as to the following: (a.) Does the Veteran have chronic gastric or duodenal ulcers? (b.) If so, the examiner should identify the specific disorder and opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability is caused by or a result of the Veteran’s military service, including exposure to AO. In rendering any opinion, the examiner should comment on the significance of in-service stomach pain and/or cramps, and whether such symptomatology indicates an early manifestation of a current disability. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for a VA neurologic examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of any claimed peripheral neuropathy of the BLEs. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history and examination of the Veteran, the VA examiner must offer an opinion as to the following: (a.) Does the Veteran have peripheral neuropathy or any other neurologic abnormality of the right or left lower extremity? (b.) If so, the examiner should identify the specific disorder and opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is caused by or a result of the Veteran’s military service, including exposure to AO. (c.) Does the Veteran have progressive muscular atrophy of the right or left lower extremity? (d.) If so, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is caused by or a result of the Veteran’s military service, including exposure to AO. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. (Continued on the next page)   3. Thereafter, readjudicate the issues remaining on appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel