Citation Nr: 20004087 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-40 279 DATE: January 16, 2020 ORDER Service connection for bilateral pes planus is denied. The petition to reopen a claim for service connection for diabetes mellitus based on new and material evidence is granted. An initial rating in excess of 10 percent for the residuals of a fracture of the third toe of the left foot is denied. An effective date prior to June 27, 2014 for service connection for the residuals of a fracture of the third toe of the left foot is denied. REMANDED The appeal for entitlement to service connection for diabetes mellitus on a de novo basis is remanded. The appeal for entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. Moderate bilateral pes planus was noted on the Veteran’s entrance examination 2. The competent and probative evidence does not reflect further treatment or complaints pertaining to pes planus during service and normal feet at discharge without an increase in severity of the bilateral pes planus during service. 3. The Veteran did not submit a notice of disagreement with the June 2005 rating decision that denied entitlement to service connection for diabetes mellitus, and new and material evidence was not received within the one-year appeal period. 4. Evidence received since the most recent denial of the diabetes issue in February 2012 includes information that was not previously considered, and the absence of such information was the basis for the denial of the claim. 5. Even considering the additional impairment that results from flare-ups or repeated use over time, the Veteran’s residuals of the fracture of the third toe of the left foot have not resulted in more than moderate impairment for any portion of the period on appeal. 6. The Veteran’s initial claim for service connection for the residuals of a fracture of the third toe of the left foot was received on June 27, 2014, which was more than one year following his March 1973 discharge from active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.303(a), 3.306 (2019). 2. The June 2005 rating decision is final and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.105(a), 3.156(b) (2019). 3. New and material evidence has been submitted, and the claim for service connection for diabetes mellitus is reopened. 38 C.F.R. § 3.156(a) (2019). 4. The criteria for entitlement to an initial rating in excess of 10 percent for the residuals of a fracture of the third toe of the left foot have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71, Code 5284 (2019). 5. The criteria for entitlement to an effective date prior to June 27, 2014 for service connection for the residuals of a fracture of the third toe of the left foot have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to March 1973. This included service in Vietnam. The Board observes that after the most recent supplemental statement of the case was issued in July 2019 and the appeals were certified to the Board in August 2019, additional VA treatment records were added to the claims file in August 2019. However, the only information relevant to the disabilities on appeal included in these records was a duplicate copy of a July 2019 VA examination that was previously considered by the supplemental statement of the case. Therefore, no waiver of these records is required, and the Board can proceed with the adjudication of the Veteran’s appeals. Additionally, in an October 2019 correspondence, the Veteran’s attorney representative wavier any remaining time to send in additional information. 10/21/2019 Third Party Correspondence. Service Connection The Veteran contends he has developed several disabilities as a result of his active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker v. Shinseki. Hypertension is listed in 38 C.F.R. § 3.309. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).   Service connection for bilateral pes planus The Veteran contends that he is entitled to service connection for bilateral pes planus. He has not provided any specific contentions regarding this disability. A review of the service treatment records shows that the January 1968 entrance examination noted the Veteran had moderate pes planus. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a defect, infirmity, or disorder is noted on the enlistment examination, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation; the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 ). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). In this case, as the Veteran’s pes planus was identified on the entrance examination, the presumption of soundness does not apply. 38 U.S.C. § 1153. It was noted to be moderate. See 02/17/1977 STR – Medical, at 5 (noting abnormal clinical evaluation of the Veteran’s feet upon entrance into service via a January 1968 report of medical examination). A review of the Veteran’s service treatment records is negative for any complaints of pain in the arches of his feet, and for any complaints or treatment for the pes planus. The Board observes that the Veteran did receive treatment for a fracture of the third toe of his left foot, and that he was also treated for athlete’s feet. However, the Veteran did not take these opportunities to report any symptoms or complaints due to his pes planus. When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). However, the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded. Id. (citing Fed. R. Evid. 803 (7)); see also Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (suggesting that the Board could properly draw an inference from contemporaneous service medical records that do not record an injury if it finds the STRs appear complete, and the injury, disease, or related symptoms would ordinarily have been recorded had they occurred). The record does not reflect an indication that the service treatment records are incomplete. See, e.g., 11/15/2004 Rating Decision (listing service treatment records from March 1968 to March 1974 in the Evidence section). It is also logical to infer that as the Veteran was being complaining of problems with his feet and being treated for such that a complaint or notation regarding pes plans/flat feet would have been recorded. The Board finds that this is a factor that tends to weigh against a finding of an increase during service. Additionally, the Board notes that the February 1973 discharge examination states that his feet were normal. This is another factor that weighs against a finding of an increase as this clinical examination, at an important point in time – the Veteran’s discharge from service, affirmatively recorded normal feet. Similarly, the post-service medical records are also negative for complaints or treatment of pes planus. The Veteran was afforded VA examinations of his feet in January 2015, March 2018 and July 2019, but none of these examinations attributed any symptoms to bilateral pes planus. The Board also finds these factors weigh against the claim. Indeed, sometimes, "evidence of a prolonged period without medical complaint after service can be considered as a factor in determining a service connection claim." Nieves-Rodriguez, 22 Vet. App. 295, 305 (2008) (citing Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)). Therefore, given the complete lack of complaints or symptoms due to pes planus recorded in service, given the Veteran’s lack of contentions specific to the pes planus symptomatology during service, given that his feet were determined to be normal at discharge, and given that the post-service medical records are entirely negative for pes planus, the Board finds that the probative and competent evidence tends to show that the Veteran’s pes planus did not undergo an increase in disability during service. If anything, the finding of normal feet at discharge indicates possible improvement. As the Board finds the preponderance of the evidence is against an increase in severity in service, the presumption of aggravation does not apply. 38 U.S.C. § 1153. It follows there is no basis for a finding of service connection for pes planus based on aggravation, and entitlement to service connection for pes planus is not warranted. New and Material evidence for Diabetes Mellitus The Veteran contends that he has developed diabetes mellitus due to herbicide exposure in Vietnam. He believes he has been given a current diagnosis of diabetes mellitus by his VA doctors. The record shows the Veteran’s original claim for service connection for diabetes mellitus was denied in a November 2004 rating decision. After the receipt of new and material evidence within one year of this decision, his claim was readjudicated in a June 2005 rating decision, which again denied entitlement to service connection for diabetes mellitus. The Veteran was notified of this decision and provided his appellate rights in a June 2005 letter. He did not initiate an appeal by submitting a notice of disagreement and new and material evidence was not received prior to the expiration of the period in which to appeal. Therefore, the June 2005 rating decision is final and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b). A veteran may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). The Court has stated that for the purpose of determining whether or not new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis, and not only since the last time it was disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Veteran’s claim for service connection for diabetes mellitus was most recently disallowed in a February 2012 rating decision. Evidence received since February 2012 will be reviewed to determine if any is both new and material. The AOJ determined that new and material evidence was received and adjudicated this claim on a de novo basis. However, a determination on whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, regardless of the AOJ’s action, the Board must initially address the question of whether new and material evidence has been presented to reopen the claim of service connection for a heart disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. If the McLendon standard is met, the claim should be reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that new and material evidence has been received, and the petition to reopen the claim for service connection for diabetes mellitus is granted. The previous decisions have always denied the Veteran’s claim on the bases that although laboratory testing has shown the Veteran to have high blood sugar, he has never been given a diagnosis of diabetes mellitus by a medical professional who is competent to make such a diagnosis. Now, VA treatment records dated November 2017 include a primary care note with a history of “borderline” diabetes mellitus. The assessments also include “borderline” diabetes mellitus but stable. Based on this assessment alone the Board is unable to discern on what side of the border the Veteran’s claimed diabetes is on. In other words, it is unclear whether the assessment of borderline diabetes mellitus represents an actual diagnosis of a mild form of this disability or is merely a continuation of the previous observations and warnings that the Veteran is close to having but does not yet have diabetes. However, as the previous denials are all based on the lack of a current diagnosis, and this previously unconsidered assessment at least raises the possibility of a current diagnosis and triggers VA’s duty to assist. As such, the Board finds such evidence is new and material, and the claim is reopened in order to afford the Veteran a VA examination to determine whether he has his claimed disability. The matter will be addressed further in the Remand section below. A rating in excess of 10 percent for the residuals of a fracture of the third toe of the left foot Entitlement to service connection for the residuals of a left third toe fracture was granted in a March 2015 rating decision. The Veteran contends the 10 percent rating that was initially assigned to the residuals of the fracture of his left third toe is inadequate to compensate him for the impairment that results from this disability. The Veteran submitted a notice of disagreement with the initial evaluation, which began the current appeal. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10 (2019). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). In determining an initial rating, the entire record from the effective date of service connection to the present is of importance in determining the proper rating of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s residuals of the fracture of the third toe of the left foot are evaluated under the rating criteria for other foot injuries. Under these criteria, a moderate disability is evaluated as 10 percent disabling; a moderately severe disability is evaluated as 20 percent disabling, and a severe disability is evaluated as 30 percent disabling. 38 C.F.R. § 4.71, Code 5284. The regulation does not define these terms so the will turn to a dictionary. In this regard, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as "of a great degree" or "serious." Id. at 1140. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The evidence includes the report of a January 2015 VA examination of the Veteran’s feet. The history of a fracture of his toe during service was noted. He now reports that his toe was sore and that he can only wear soft shoes. He had not sought any treatment for the pain in his toe. He did not report any flare-ups, functional loss or impairment that impacted the foot. The Veteran was observed to have rigid contracture of the third toe of the left foot, and he walked on his toenail bedplate. Pain was demonstrated on examination, which contributed to functional loss. The Veteran had pain, swelling, and lack of motion of the toe. There was no pain, weakness, fatigability, or incoordination during flare-ups or when used repeatedly over time. All the lesser digits on the left foot were hammer toes, but the third toe of the left foot was the only one that was not reducible and had pain. There was no loss of use of the foot. The Veteran underwent another VA examination of the feet in March 2018, which was conducted by the same examiner who saw the Veteran in January 2015. The Veteran stated he continued to have constant daily pain of the third toe of the left foot. There had been no medical treatment of this toe since discharge from service, and he had declined surgical intervention. On examination, the Veteran continued to deny flare-ups. He had congenital hammertoes of all digits, but the third digit of the left foot was also contracted and varus rotated with no change since the previous examination. There was pain on physical examination, but it did not contribute to functional loss. The examiner explained that the Veteran’s functional loss was not the result of his pain but was due to biomechanics. All his digits were rigidly contracted, with the third digit also being contracted at the distal interphalangeal joint. The Veteran did not report having any functional loss or impairment of his foot. His disability did not result in loss of use of his foot, and there was no functional impact on his ability to perform any occupational task. The most recent examination of the Veteran’s third left toe is a VA examination completed in July 2019. He reported daily pain that was an eight on a scale to ten. The toe would become ingrown several times each year. The Veteran had tried pads without relief. He was unable to walk further than a quarter of a mile or stand longer than 5 to 10 minutes. If the pain increased to the extent he had to get off his feet, it would last for over an hour. These flares occurred multiple times a week. The examiner commented that the toe was rigid without range of motion at both the proximal interphalangeal joint and the distal interphalangeal joint. There was pain with palpation of the distal part of the toe and the lateral nail border as well as increased edema. In contrast, the third toe on the right foot had full range of motion without pain. The Veteran had less movement than normal, pain on movement, weight-bearing and non-weight-bearing, swelling, disturbance of locomotion, and interference with standing. Flare-ups or repeated use resulted in an inability to walk more than a quarter mile or stand longer than 5 to 10 minutes. The Veteran did not have loss of use of the foot. Degenerative arthritis was shown on x-ray study. The examiner stated the disability impacted the Veteran’s ability to perform occupational tasks in that he was unable to walk more than a quarter mile or stand more than 5 to 10 minutes. He was also unable to run, jog, squat, or raise up on his toes due to pain. After reviewing the relevant, competent lay and medical evidence, the Board finds that entitlement to an increased initial rating for the Veteran’s residuals of a fracture of the third toe is not warranted for any portion of the period on appeal. Although the July 2019 examiner appears to describe symptomatology that is more severe than that described by the examiner who conducted the previous two examination, at no point does this symptomatology more nearly approximate the level of moderately severe. The Veteran has daily pain in his third left toe, which does not appear to depend on whether he is standing, and the July 2019 examiner described increased symptomatology on flare-ups which sometimes required the Veteran to sit for up to an hour. However, even during flare-ups the Veteran remains able to walk a quarter mile and stand for 5 to 10 minutes. The Board finds this evidence tends to weigh against a finding of moderately severe disability. In sum, the Board finds that the Veteran’s pain and functional loss is contemplated and compensated by the current 10 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, Code 5284. Entitlement to an effective date prior to June 27, 2014 for service connection for the residuals of a fracture of the third toe of the left foot The Veteran and his representative have appealed the June 27, 2014 effective date for service connection assigned by the March 2015 rating decision that granted service connection for the residuals of a fracture of the third toe of the left foot. They have not provided any specific contentions as to why they believe an earlier effective date is appropriate. Generally, for an original claim or a claim reopened after final adjudication, the effective date can be no earlier than the date of the claim. 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (stating that the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later). The effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i); see 38 U.S.C. § 5110(a); Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."). In this case, the Veteran was discharged from active service in March 1973. The Veteran first submitted a claim for service connection with VA in March 2004, and that claim did not mention the fracture of the left third toe. A supplemental claim submitted in June 2004 claimed service connection for numbness of all toes due to peripheral neuropathy as a result of herbicide exposure, but once again this claim did not include the residuals of a fracture of the left third toe, nor was this injury even mentioned. A supplemental claim for service connection for posttraumatic stress disorder (PTSD) and for diabetes was submitted in March 2011, followed by an additional claim for service connection for diabetes in August 2011. Neither claim mentioned the toe injury. Thereafter, the Veteran submitted a claim for service connection for several disabilities on June 27, 2014. This, for the first time, included a claim for service connection for a fractured toe. The March 2015 rating decision granted service connection for this disability and based the effective date on the date of receipt of this claim. The Board finds that June 27, 2014 is the earliest possible effective date for service connection for the residuals of a fracture of the left third toe. The Veteran’s initial claim for this disability was received on this date, which is well after the end of the one-year period following discharge from service. The Board has reviewed the record, but finds that there is no other claim (formal) or statement (informal claim) prior to June 27, 2014 than can be interpreted as a claim for this disability. Therefore, the applicable law and regulation indicate that the correct effective date for this disability is June 27, 2014, which is the date that has already been assigned. 38 C.F.R. § 5110; 38 C.F.R. § 3.400(b)(2)(i). REASONS FOR REMAND Service connection for diabetes mellitus. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. As noted above, it is unclear to the Board whether the November 2017 VA primary care note that includes a history of “borderline” diabetes mellitus constitutes a diagnosis of this disability. Given that the Veteran is presumed to have been exposed to herbicide agents during service and given that diabetes mellitus type 2 is a disability that is presumed to be the result of herbicide exposure, the success or failure of the Veteran’s claim depends entirely on whether the record contains competent evidence of a current diagnosis. In light of the foregoing, the Board finds he should be scheduled for a VA examination to determine whether a current diagnosis of diabetes mellitus can be confirmed. Service connection for hypertension The Veteran attributes his hypertension to exposure to herbicides such as Agent Orange while in Vietnam. VA treatment records dating from 2010 consistently show that the Veteran is followed for hypertension, and that he has been prescribed medication to treat this disability. November 2017 VA treatment reports continue to show the Veteran has a history of hypertension. Thus, the evidentiary requirement of a current disability has been met. As for the evidentiary requirement of in-service disease or injury, the Veteran’s service treatment records do not contain a diagnosis of hypertension or a showing of even a single high blood pressure reading. At the time of the February 1973 discharge examination his blood pressure was 118/72. Post-service medical records show he did not develop hypertension until many years after discharge. Moreover, as noted, the Veteran's personnel records show that he had service in the Republic of Vietnam during the Vietnam Era, and is thus presumed to have been exposed to herbicide agents, an in-service event. Although hypertension is not on the list of disabilities presumed to be related to herbicide agent exposure (38 C.F.R. § 3.309(e)), direct service connection may be warranted. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has not been provided with a VA examination to determine the nature and etiology of his asthma or hypertension. VA must provide an examination where there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury or disease but there is insufficient information to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that the National Academy of Sciences (NAS) has found that there is “limited or suggestive evidence of an association between” hypertension and exposure to herbicide agents (such as Agent Orange) based on a recent statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (April 11, 2014); see also 38 U.S.C. § 1116 (b) (2012). The category “limited or suggestive evidence of an association” means that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Id. A more recent study by NAS released on November 15, 2018, indicates that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension.” Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2018, at 498, available at https://www.nap.edu/read/25137. The Board finds that the suggestive evidence of an association between hypertension and herbicide exposure is also sufficient to establish an "indication" that the current disability "may be related" to herbicide exposure during service, as contemplated by 38 U.S.C. § 5103A(d)(2)(B). The Court has described the threshold of the statute as being low. McLendon, 20 Vet. App. at 83. In light of the foregoing, the Board finds a remand for additional development is necessary. These matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine whether he has diabetes mellitus type 2. The history of his high blood sugar readings in December 2010 should be noted. The examiner must opine whether it is as likely as not that the Veteran has a current diagnosis of diabetes mellitus type The examiner must also state whether, in standard medical practice, an assessment of a history of “borderline” diabetes mellitus constitutes a current diagnosis of that disability. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. 2. Provide the Veteran with an appropriate VA examination to determine the nature, extent and etiology of his hypertension. The claims file and this Remand is to be made available to the examiners for review in connection with the examinations. All indicated tests should be conducted, and the reports of any such studies incorporated in the examination reports to be associated with the claims file. After review of the claims file and examinations of the Veteran, the examiners should provide an opinion on the following: (a.) Is it at least as likely as not that the Veteran's hypertension is related to his presumed herbicide exposure in Vietnam? The examiner's opinion should show consideration of the 2018 Update of the NAS Institute of Medicine's "Veterans and Agent Orange" report, which moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John L. Prichard 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.