Citation Nr: 1819072	
Decision Date: 03/29/18    Archive Date: 04/05/18

DOCKET NO.  14-23 954	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents.

2.  Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents.


REPRESENTATION

Veteran represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

S. Freeman, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1967 to April 1969, to include service in the Republic of Vietnam from April 1968 to April 1969.

These matters come on appeal before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

These matters were remanded by the Board in March 2016 for additional development. 

The Board's March 2016 decision remanded the issue of service connection for a psychiatric disability, to include PTSD.  Thereafter, a December 2016 rating decision granted service connection for PTSD.  In January 2017, the Veteran filed a timely Notice of Disagreement.  Following the issuance of a Statement of the Case (SOC) in June 2017, he did not file a timely substantive appeal in that matter.  Consequently, that issue is not before the Board.


FINDING OF FACT

At no time during, or prior to, the pendency of the claim does the Veteran have a current diagnosis of diabetes mellitus, or persistent or recurrent symptoms of such a disorder. 


CONCLUSIONS OF LAW

The criteria for service connection for diabetes mellitus, type II, have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (b) (2017).  The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  As such, the Board will now review the merits of the Veteran's claims.

II.  Service Connection

A.  Pertinent Statutes and Regulations

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).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as cardiovascular renal disease are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R.
§ 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).   Diabetes mellitus is a condition for which presumptive service connection is warranted due to in-service herbicide exposure.  See 38 C.F.R. § 3.309(e).

Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 

Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. § 4.1.  See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen, supra.  The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

B.  Diabetes Mellitus

The Veteran generally contends that presumptive service connection is warranted for his diabetes mellitus based on his in-service exposure to herbicides.  The Board notes that the Veteran did serve in Vietnam.

However, the probative evidence of record fails to demonstrate a current diagnosis of diabetes mellitus.  While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of disability prior to the Veteran's claim.  A February 2011 VA diabetes mellitus examination found that the Veteran did not diabetes and the examiner noted that there was no evidence of diabetes mellitus on examination or in the available files.  A September 2010 VA treatment note indicates that diabetes mellitus was a "wrong diagnosis."  

The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge.  See Jandreau, supra; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). 

However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of issue here involving an internal organ, is a matter within the province of trained medical professionals.  See Jones, supra.  Specifically, the diagnosis of diabetes mellitus involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing, to include glucose testing.  In the instant case, there is no suggestion that the Veteran has had any medical training.  Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose diabetes mellitus, the lay assertions in this regard have no probative value.  Jandreau, supra at 1377 n.4 ("[s]ometimes 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"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C. § 1110.  Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of diabetes mellitus for the entire appeal period, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. 

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 




ORDER

Service connection for diabetes mellitus is denied.


REMAND

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C. § 5103A(d) ; 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  For below noted reasons, the Board finds that a VA opinion is necessary in order to determine the nature and etiology of the Veteran's claimed hypertension. 

The Veteran has generally alleged that his claimed hypertension is the result of his service, to include his presumed in-service exposure to herbicides.  Service treatment records were negative for complaints, treatments or diagnoses of hypertension and the Veteran denied that he current had or that he ever had high blood pressure in an April 1969 Report of Medical History.  Post service treatment records reflect a diagnosis of hypertension.  An opinion to determine the etiology of his hypertension has not yet been obtained.  On remand, such an opinion should be obtained.

Finally, on remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disabilities.  Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the record. 

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the remanded claims. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from January 2016 to the present, should be obtained. 

For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession.

For federal records, all reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 

2.  After obtaining all outstanding treatment records, the claims file should be forwarded to a physician or other appropriate medical professional to offer an opinion regarding the etiology of the Veteran's claimed hypertension.  An examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion. 

The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report must reflect full consideration of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be set forth, in detail. 

Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: 
a)  The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed hypertension had its onset during any period of service, or is otherwise related to such periods of service, to include his presumed exposure to herbicides. 

b)  The examiner should also offer an opinion as to whether the Veteran had hypertension within one year of his April 1969 service discharge (i.e., by April 1970) and if so, describe the manifestations. 

In offering such opinion, the examiner should consider the Veteran's statements regarding the incurrence of his disability.  The examiner must provide a complete rationale for all opinions and conclusions reached.

3.  After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________

Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs