Citation Nr: 19166647 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-60 064 DATE: August 27, 2019 ORDER Entitlement to service connection for diabetes is denied. REMANDED Entitlement to service connection for a lung disorder is remanded. FINDING OF FACT The Veteran has not been diagnosed with diabetes. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1968 to September 1971, including service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for diabetes is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires 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 (Fed. Cir. 2004). Certain chronic disabilities, including diabetes, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam 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 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide agent exposure include diabetes. Upon review of the evidence in the record, the Board finds that service connection for diabetes is not warranted because the record fails to reflect that the Veteran has been diagnosed with diabetes at any point just prior to or during the appeal period beginning in February 2016. Indeed, the Veteran acknowledges as much, as he reports that he “suffers from borderline diabetes.” See November 2017 VA Form 27-0820; see also November 2017 VA Form 9. Accordingly, the preponderance of the evidence is against the Veteran’s claim of service connection for diabetes. Moreover, as there is no current diagnosis of diabetes, to include within the one-year period following service separation, presumptive service connection and service connection based on continuity of symptomatology are not available. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). To the extent the Veteran asserts that he has diabetes, the Board finds that he is not competent to do so, as this requires laboratory testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, as the first element of service connection is not met at any point during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). REASONS FOR REMAND 1. Entitlement to service connection for a lung disorder is remanded. The Veteran asserts that his lung disorder is the result of his exposure to asbestos during active duty service. Specifically, he states that when he transferred to the USS Nereus, he participated in the decommissioning tasks of the ship such as chipping paint off the vessel, as did all of the servicemembers assigned to the ship, although his military occupational specialty was a storekeeper/stock clerk. See November 2017 VA Form 27-0820. The Veteran has not yet been afforded a VA examination for this condition, and the duty to obtain one is triggered on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Any outstanding VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his lung disorder. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that that any currently diagnosed lung disorder had its onset in or is otherwise related to service, to include as a result of conceded herbicide agent exposure or exposure to asbestos aboard the USS Nereus therein. In addressing this question, please do not rely solely on negative service treatment records and/or the fact that presumptive service connection is not available for the condition in question. A complete rationale should be given for all opinions and conclusions expressed. Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.