Citation Nr: 18153833 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-52 821 DATE: November 28, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II (DM), to include as due to Agent Orange exposure and/or as secondary to a service-connected disability, is denied. Entitlement to service connection for left lower extremity (LLE) peripheral neuropathy, to include as secondary to diabetes mellitus, type II, is denied. Entitlement to service connection for right lower extremity (RLE) peripheral neuropathy, to include as secondary to diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The Veteran’s DM is not etiologically related to service or to a service-connected disability. 2. There is no diagnosis of LLE peripheral neuropathy. 3. There is no diagnosis of RLE peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for service connection for DM have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for service connection for LLE peripheral neuropathy have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for service connection for RLE peripheral neuropathy have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to February 1972, including service in the Republic of Korea (Korea). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Service Connection 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, 3 Vet. App. at 225. 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) (2018). A veteran who served between April 1, 1968, and August 31, 1971 in a unit that operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent. See 38 C.F.R. § 3.307(a)(6)(iv). 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.”). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2018). The Board notes that the RO did not provide the Veteran with an examination related to his claimed DM. In that regard, the Board finds that a medical examination is not necessary to make a decision on this claim. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the evidence does not establish that the Veteran suffered an event, injury or disease in service, or that diabetes mellitus manifested within one year of service discharge. The evidence also does not demonstrate that any lower extremity sensory issues would be related to a service-connected disability. Accordingly, no examination is necessary. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to service connection for DM, to include as due to Agent Orange exposure Based on a review of the evidence, the Board finds that entitlement to service connection for DM is not warranted in this case. First, the record reflects the Veteran has a current disability. For instance, VA treatment records dated in February 2011 reflect a diagnosis of DM. Other medical treatment records dated in August 2006 reflect a history of DM with onset in or around 2001. Thus, the first element of service connection, the existence of a current disability, is satisfied. Second, concerning an in-service event, illness, or injury, the Veteran has consistently reported that he was exposed to AO as a result of service in or near the Korean demilitarized zone (DMZ). As indicated, the Veteran served on active duty from January 1970 to February 1972, including service in Korea from March 30, 1971 through February 18, 1972. The Veteran’s service personnel records (SPRs) reflect he was assigned to A Battery 8th Battalion 61st Artillery 2nd Division during that time. The Veteran’s assigned unit is not recognized as a unit that operated in or near the Korean DMZ. In February 2013, the Veteran was notified of the developmental actions taken to verify service in or near the Korean DMZ through appropriate service departments or other sources in order for the presumption afforded under 38 C.F.R. § 3.307(a)(6)(iv) to be applicable. The Veteran was notified that his claimed service in the Korean DMZ could not be verified. The Board finds that the Veteran’s assertion of exposure, without any corroborating evidence, is not sufficient to prove exposure to Agent Orange based on DMZ service. Furthermore, the Veteran’s service treatment records (STRs) are negative for any findings of, complaints of and/or treatment for DM or associated symptomatology. The second element of service connection is thus not met. Third, the Board finds that the evidence of record does not support a finding that the Veteran’s DM is otherwise related to active service. Rather, medical treatment records dated in August 2006 reflect a history of DM with onset in or around 2001, i.e., nearly three decades after service. Such a gap weighs against a finding that a disability is related to active service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Although the Veteran asserts his diabetes mellitus is related to Agent Orange exposure, such exposure is not demonstrated and the Veteran is not competent to provide such an opinion, which is not capable of lay observation and requires specialized medical knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Moreover, the evidence does not demonstrate that the Veteran’s disability manifested to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, the third element of service connection is also not met. Finally, the Board finds that diabetes is also not caused or aggravated by a service-connected disability. In a September 2012 statement, the Veteran raised an alternative theory of entitlement by stating that he developed hypertension in his mid-40s, which developed into diabetes mellitus. To that extent, the Board notes that the Veteran is not service-connected for hypertension. As such, service connection on a secondary theory of entitlement is also not warranted. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for DM. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is denied. 2. Entitlement to service connection for LLE peripheral neuropathy, to include as secondary to diabetes mellitus, type II 3. Entitlement to service connection for RLE peripheral neuropathy, to include as secondary to diabetes mellitus, type II Based on a review of the evidence, the Board finds that entitlement to service connection is not warranted as the most probative evidence of record demonstrates that there are no current disabilities. Service connection is limited 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, 3 Vet. App. at 225 (1992). In making this finding, the Board acknowledges that May 2012 VA treatment records note that the Veteran presented with chronic lumbar pain and numbness in his great toe, bilaterally. Diagnostic testing was performed and revealed a positive finding on straight leg raising test at 80 degrees, bilaterally. At that time, however, the examiner found that there was no evidence of diabetic peripheral neuropathy or lumbosacral radiculopathy. The diagnosis was mild bunion in the left great toe and sensory disturbance due to irritation from new boots in the right great toe. This is consistent with the remaining evidence of record. The medical records do not reflect any other diagnosis of a disability affecting the nerves of the lower extremity. Additionally, May 2012 VA treatment records indicate that there is no evidence of weakness of the bilateral lower extremities and a normal gait. Thus, the evidence does not demonstrate pain that amounts to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). Thus, the evidence does not demonstrate any current 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 of service connection for bilateral lower extremity peripheral neuropathy. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claims, the doctrine is not for application. Gilbert, 1 Vet. App. 49. Accordingly, the appeal is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel