Citation Nr: A19001540 Decision Date: 09/24/19 Archive Date: 09/24/19 DOCKET NO. 180525-315 DATE: September 24, 2019 ORDER Entitlement to service connection for diabetes mellitus, type II (diabetes) is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is denied. Entitlement to service connection for right lower extremity peripheral neuropathy is denied. Entitlement to service connection for left upper extremity peripheral neuropathy is denied. Entitlement to service connection for right upper extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran served in the U.S. Navy in the early 1970s aboard a naval vessel in the territorial waters of the Republic of Vietnam. 2. The Veteran has been diagnosed with diabetes. 3. The preponderance of the competent evidence indicates that the Veteran has not been diagnosed with peripheral neuropathy. CONCLUSIONS OF LAW 1. Diabetes was incurred in service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.313 (2018). 2. The criteria for service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2018). 3. The criteria for service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2018). 4. The criteria for service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2018). 5. The criteria for service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to June 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran chose to participate in the Rapid Appeals Modernization Program (RAMP). As such, the decision below is written consistent with the Appeals Modernization Act (AMA). The AMA provides a new framework for review of adverse decisions. Service Connection The Veteran claims that he incurred diabetes and peripheral neuropathy during service as the result of exposure to herbicides. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). 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. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, several diseases listed under 38 C.F.R. § 3.309(e) shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113, 38 C.F.R. § 3.307(d) are also satisfied. Diabetes and peripheral neuropathy are listed under § 3.309(e) so these disorders may be presumed service connected for veterans who served in Vietnam during the applicable time period. 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Diabetes A service connection finding is warranted for diabetes for the following reasons. First, VA treatment records document that the Veteran has been diagnosed with diabetes. Second, the record documents that he had naval service in the territorial waters of Vietnam. As the RO found in the April 2018 rating decision on appeal, service personnel records document that he served aboard a surface warfare ship which docked in Da Nang Harbor, Vietnam, in the early 1970s. Third, under 38 C.F.R. § 3.307 and § 3.309, the Veteran is presumed to have been exposed to herbicides in Vietnam and is presumed to have incurred diabetes from the herbicide exposure. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). As such, service connection is warranted for diabetes. Peripheral Neuropathy However, with regard to peripheral neuropathy, a service connection finding is unwarranted. The evidence indicates that the Veteran does not have peripheral neuropathy. Medical evidence dated since November 2015 is negative for complaints, treatment, or diagnosis of peripheral neuropathy. In several records it is indicated that the Veteran denied peripheral neuropathy symptoms. Most recently, in a December 2018 treatment record, the Veteran’s treating physician found the Veteran with no peripheral neuropathy. Thus, the evidence indicates no current peripheral neuropathy. In a November 2015 VA treatment record, the treating physician who found no peripheral neuropathy in December 2018 noted the Veteran’s complaints of “tingling pins and needles sensation pain in his toes.” The physician then indicated that “this most likely is due to diabetic peripheral neuropathy.” However, the comment is of limited probative value because, upon further observation and treatment, the physician found the Veteran to be without the disorder. Further, the record does not indicate that the Veteran underwent neurological testing to substantiate the diagnosis. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In the November 2015 record, it is indicated that the Veteran declined treatment and indicated that he would request treatment in the future if the symptoms worsened. As noted, the evidence dated between November 2015 and December 2018 indicates that the Veteran did not complain of peripheral neuropathy symptoms. Lastly, the private medical evidence submitted into record, which details treatment for diabetes and other disorders, is negative for the diagnosis of peripheral neuropathy. In assessing whether the Veteran has peripheral neuropathy, the Board has considered his lay assertions. He is competent to report observable symptoms such as tingling, numbness, and pain in his arms and legs. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to diagnose himself with peripheral neuropathy, or to determine the etiology of such a disorder. The diagnosis of this neurological disability is a complex medical determination which requires specialized training which the Veteran does not possess as a lay person. Significantly, the Board finds the treating physician’s December 2018 comments regarding peripheral neuropathy to be of probative value. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The comments are based on a familiarity with the Veteran’s diabetes and with the treatment he has received for the disorder. See Bloom, supra. Indeed, the objective medical evidence indicating the absence of peripheral neuropathy preponderates against the Veteran’s own insights. (Continued on the next page)   In the absence of a disability, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991) (a disability is an inability to pursue an occupation because of physical or mental impairment). Accordingly, a service connection finding for peripheral neuropathy is not warranted. As the preponderance of the evidence is against the claim to service connection for peripheral neuropathy, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.