Citation Nr: 18153793 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-51 271 DATE: November 29, 2018 ORDER Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for acid reflux is denied. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of ischemic heart disease. 2. The preponderance of the evidence does not show that the Veteran’s acid reflux was incurred in or caused by military service. 3. Throughout the period on appeal, the Veteran’s diabetes mellitus has required restricted diet and regulation of activities, but not the use of insulin. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for acid reflux have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for an initial rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1968 to September 1970, including service in the Republic of Vietnam. These matters are on appeal from a February 2016 rating decision. Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, 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(f); 38 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide agent exposure include ischemic heart disease and other inclusive heart diseases. 38 C.F.R. 3.309(e). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents The Veteran seeks service connection for ischemic heart disease, which he generally contends was incurred in or caused by military service, to include presumed exposure to herbicide agents while serving in the Republic of Vietnam. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the Veteran’s service treatment records are silent as to complaint, treatment, or diagnosis of ischemic heart disease, or any other condition related to the heart, during service. Further, the claims file does not contain any post-service medical records showing complaint, treatment, or diagnosis of ischemic heart disease at any time since service or during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Significantly, the Veteran has not provided any medical evidence of a current diagnosis of ischemic heart disease, nor has he provided VA with specific details regarding his claim, such as what symptoms he experiences that he believes are attributed to heart disease. Based on the above, the Board finds that the preponderance of the evidence weighs against finding that service connection for ischemic heart disease is warranted. The Board notes that Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of current disability there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. Thus, in the absence of competent evidence showing a current diagnosis of ischemic heart disease, it is not necessary to address the remaining elements of the claim for service connection. See id. While the Veteran is presumed to have been exposed to herbicide agents due to his service in the Republic of Vietnam, the presumption under 38 C.F.R. § 3.309(e) does not alleviate the requirement for a current disability in a claim for service connection. Finally, while the Veteran is competent to report symptoms of disability, he is not shown to have the specialized medical training required to render a diagnosis for a complex medical condition such as ischemic heart disease. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not provided any other competent or credible medical evidence of the existence of a current disability. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for ischemic heart disease, to include as due to exposure to herbicide agents. Because the evidence fails to establish that the Veteran has a current diagnosis of ischemic heart disease, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to service connection for acid reflux The Veteran seeks entitlement to service connection for acid reflux which he generally contends is related to service. The Veteran’s service treatment records have been associated with the claims file. The Board notes that they are silent for complaint, treatment, or diagnosis of acid reflux, or any other digestive disorder, during service. The Veteran denied a history of frequent indigestion at both his September 1968 induction examination and August 1970 separation examination. Post-service VA treatment records show that the Veteran reported experiencing dyspepsia (indigestion) and heartburn in May 2011. A September 2016 VA list of medications shows that the Veteran is prescribed an antacid for acid reflux. The Board notes that the Veteran’s claims file does not contain any other medical records pertaining to the Veteran’s diagnosis of acid reflux. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against finding that service connection for acid reflux is warranted. Although the Veteran has a current diagnosis of acid reflux, the evidence of record does not indicate that his current disability manifested during or as a result of active duty service. There is no evidence that the Veteran complained of or was treated for any gastroesophageal symptoms, such as acid reflux, heartburn, or indigestion, at any time during service. The earliest indication that the Veteran had symptoms of acid reflux was in May 2011, more than 40 years after discharge from service. Moreover, his VA treating clinicians have not suggested that his acid reflux is etiologically related to any injury, disease, or event incidental to military service. Finally, the Veteran has not presented or identified any other medical evidence to support a finding that his acid reflux is directly related to his military service. In making this determination, the Board is cognizant that the Veteran has not been afforded a VA examination concerning his currently diagnosed acid reflux and a formal medical nexus opinion has not been obtained. However, the Board finds that such development is not necessary as there is no competent evidence of record indicating that this disability may be related to military service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). To the extent that, by filing his claim for service connection, the Veteran has asserted a belief that his acid reflux is related to service, such a generalized, lay assertion is insufficient to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Likewise, as a layperson not shown to possess medical training or expertise, the Veteran is not competent to render a persuasive or competent medical opinion as to the etiology of his acid reflux. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Accordingly, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for acid reflux. Because the evidence fails to establish that the Veteran’s disability was incurred in or caused by military service, the Veteran’s claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 3. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus The Veteran has claimed entitlement to a higher initial rating for his service-connected diabetes mellitus, which is currently rated as 20 percent disabling effective September 23, 2015. The Veteran has indicated that he believes his diabetes mellitus is severe enough to warrant a 40 percent rating. The Veteran’s diabetes mellitus is rated under Diagnostic Code 7913. 38 C.F.R. § 4.119. Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus that requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned where the Veteran requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or weekly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned when the Veteran requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Veteran underwent a VA disability benefits questionnaire (DBQ) examination in January 2016. Upon examination, the examiner determined that the Veteran’s diabetes mellitus is managed by a restricted diet and prescription oral hypoglycemic agents. He does not require the use of insulin. The Veteran was found to require regulation of activities due to fatigue caused by his diabetes. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month, with zero episodes requiring hospitalization in the past year. The Veteran was not found to have any recognized complications of diabetes mellitus. VA treatment records confirm that the Veteran is currently prescribed Glipizide and Pioglitazone, which are non-insulin oral hypoglycemic agents, to treat his diabetes mellitus. There is no medical evidence of record that he has been prescribed insulin at any time during the period on appeal to manage his diabetes. Further, the Veteran has not asserted that his diabetes requires the use of insulin. Based on the foregoing, the Board finds that the Veteran’s diabetes mellitus is not of sufficient severity to warrant the next higher rating of 40 percent. The objective medical evidence of record shows that the Veteran’s diabetes requires a restricted diet and regulation of activities, however, it does not require the use of insulin. The Board notes that the criteria under Diagnostic Code 7913 are conjunctive, and therefore, all of the listed requirements included in the criteria for a 40 percent rating must be met in order for that rating to be assigned. See Melson v. Derwinski, 1 Vet. App. 334 (1991). Since the Veteran’s diabetes mellitus does not require the use of insulin, there is no basis under the rating criteria to award the Veteran a higher disability rating of 40 percent. The Board has considered whether the Veteran is eligible for a separate rating under any other diagnostic code for complications of diabetes, however, he has not been shown to have any recognized complications due to his disability and is not eligible for a separate disability rating. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). In reaching the above conclusion, the Board acknowledges the Veteran’s sincere belief that his disability is more severe than reflected by his currently-assigned rating. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his diabetes mellitus is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability rating, and the most probative medical evidence has shown that the Veteran’s diabetes mellitus is no more than 20 percent disabling. Accordingly, the Board finds that an initial rating in excess of 20 percent for diabetes mellitus is not warranted at any time during the period on appeal, and the claim must be denied. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is remanded. Although the Board regrets additional delay, the remaining issue on appeal must be remanded for further development to ensure that there is a complete record upon which to decide the Veteran’s claim and so that he is afforded every possible consideration. The Veteran seeks service connection for hypertension, which he contends may be secondary to his service-connected diabetes mellitus. The Veteran underwent a VA DBQ examination for hypertension in January 2016. Upon examination, the examiner determined that it is less likely than not that the Veteran’s hypertension is proximately due to or the result of the Veteran’s service-connected diabetes mellitus. The examiner opined that hypertension is not related to diabetes unless there is evidence of diabetic nephropathy, which may cause or aggravate hypertension, and the Veteran is not shown to have nephropathy. The Board finds this medical opinion to be inadequate because the examiner did not address the matter of aggravation with respect to the Veteran’s secondary service connection claim. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Moreover, the examiner failed to provide an opinion in regard to direct service connection. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the above discrepancies, the Board finds that remand is required to afford the Veteran a new VA examination and medical opinion so that the Board can render an informed decision on the claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of his hypertension. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. Thereafter, the examiner is asked to provide an opinion as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was incurred in or caused by an in-service injury, illness, or event? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by his service-connected diabetes mellitus? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was aggravated (permanently increased in severity beyond its natural progression) by his service-connected diabetes mellitus? The examiner must set forth a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel