Citation Nr: 20005589 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 17-13 261 DATE: January 23, 2020 ORDER Service connection for type II diabetes mellitus is denied. Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied.   FINDINGS OF FACT The Veteran did not manifest symptoms of type II diabetes mellitus or peripheral neuropathy during service, or within one year of service, and they are not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy, left upper extremity, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for peripheral neuropathy, right upper extremity, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for peripheral neuropathy, left lower extremity, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for peripheral neuropathy, right lower extremity, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to September 1965. The case is on appeal from an October 2013 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection 1. Service connection for type II diabetes mellitus. 2. Service connection for peripheral neuropathy of the left upper extremity. 3. Service connection for peripheral neuropathy of the right upper extremity. 4. Service connection for peripheral neuropathy of the left lower extremity. 5. Service connection for peripheral neuropathy of the right lower extremity. The Veteran contends that his condition started during service or within one year of service. He wrote in his November 2013 notice of disagreement (NOD) that he first experienced fatigue, dizziness, and total loss of energy during service. The Veteran felt that the medic in his unit was not trained or qualified, so did not know how to check him for diabetes. He wrote in an October 2012 statement that he was told at his service separation examination that it appeared he might have diabetes. The Veteran was recommended to see his doctor, which led him to see a private doctor after service who diagnosed diabetes and prescribed medication. He was also treated for the diagnosis at VA in 1966, and he had received treatment to the present. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for certain chronic diseases, such as diabetes mellitus and other organic diseases of the nervous system, if manifested to a compensable degree within 1 year from the date of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as diabetes mellitus and early-onset peripheral neuropathy, are presumed to be service connected if the requirements of 38 C.F.R. § § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis VA treatment records, most recently in August 2017, confirm the diagnoses of diabetes mellitus and peripheral neuropathy of the four extremities. Thus, the current disability element of the claims is established. The service treatment records (STRs) contradict the Veteran’s statement that he had diabetes, or possible symptoms of such, during service. First, the STRs provide no indication that he sought treatment for complaints of fatigue, dizziness, and total loss of energy. The STRs are silent in this regard. The Veteran was seen in June 1963 for complaints of numbness and weakness in his left hand. This was found to be confined to the 5th finger. The examining doctor found “[n]o disease or any type of relevant findings to explain” these symptoms. The Board notes that this medical record is inconsistent with his current assertion of systemic symptoms associated with diabetes. This evaluation was also not by a medic, as asserted by the Veteran. Most probative, he underwent a comprehensive examination at service separation in June 1965. At that time, he denied all relevant symptoms, including those complaints he now reports as having experienced during service, plus those commonly associated with diabetes. For example, he denied dizziness or fainting spells; neuritis; swollen or painful joints; cramps in his legs; lameness; foot trouble; frequent or painful urination; and sugar in urine. He marked “no” where asked if he ever had any illness or injury other than those already noted and again where asked if he had ever treated himself for illnesses other than minor colds. He handwrote “I feel that I am in good health.” The clinical portion of the June 1965 separation examination also indicates no abnormality. His urine was checked for sugar, but it was negative. The examiner did not document any indication that he advised the Veteran he might have diabetes and to see his private doctor. A contemporaneous statement as to a declarant’s then-existing physical condition, such as the Veteran’s separation examination (as opposed to his current statements of memory or belief to prove the fact remembered or believed), is recognized as possessing circumstantial guarantees of trustworthiness. See Fed. R. Evid. 803(3). Furthermore, where records are regularly kept for such a purpose, the absence of any record of an event or condition may be considered affirmative evidence of its nonoccurrence if the condition would normally have been recorded during the regularly conducted activity if it had occurred. See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7). Here, the separation examination is the type regularly kept for this purpose. Furthermore, by its very nature, this separation examination, including the questions asked on the medical history questionnaire form, was intended to be a comprehensive accounting of the Veteran’s past medical history. Moreover, the Veteran asserts that he was aware of these symptoms during service when they occurred. Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). Importantly, the Veteran signed the medical history questionnaire at service separation certifying to the truth of the statements therein. Thus, it must be assumed that any past or ongoing complaints of fatigue, dizziness, and total loss of energy or any other such symptoms would have been reported. The Board accords the separation examination credibility as an accurate account of the Veteran’s condition during, and at separation, from service. Because the examination, including the medical history questionnaire, does not indicate the presence of any such complaints or findings, it is affirmative evidence that he did not have such complaints or suspected diagnosis by the time of service separation. Relatedly, the Veteran’s assertions contradict the service department’s standard practice in situations where a disease was discovered at a separation examination. It is within the Board’s specialized area of expertise in reviewing such matters to understand that the service department would investigate a suspected diagnosis of diabetes or peripheral neuropathy if it were discovered at a separating service member’s separation examination. It would be very unlikely and inconsistent with the service department’s normal practice to separate a service member and refer him to a private provider to investigate a suspected diabetes diagnosis. See, e.g., Sykes v. Apfel, 228 F.3d 259, 272 (3d Cir. 2000). Thus, overall, the STRs weigh against finding that his symptoms first started during service and make the Veteran’s historical recollection of events from many decades prior less credible. The Veteran further contends that he was first diagnosed within one year of service separation. He stated that a private doctor diagnosed the condition, and he was then followed by a VA facility. These records have not been obtained, but the Board finds that VA’s duty to assist in attempting to obtain these records has been satisfied. The Veteran did not identify or authorize VA to attempt to obtain medical records from the private doctor. Instead, he wrote in an October 2012 statement that the RO should review his VA medical records. Accordingly, the RO undertook extensive development to attempt to obtain those VA medical records. This culminated in January 2017 when the VA facility informed the RO that it had forwarded all non-electronic medical records for the Veteran. The Board notes that the forwarded records did not include any records earlier than the 1990s. The following month, February 2017, the RO spoke by telephone with the VA facility. The RO was informed that all available records were mailed to VA’s scanning center in January 2016. (The Board observes for sake of clarity that this refers to the process occurring at that time to convert all paper records into electronic records via scanning into an electronic format.) The forwarded records, according to the VA hospital, only contained treatment for the dates between 1996 and 1999, and these were the only non-digital records available for that time period for the Veteran. Furthermore, a February 1997 VA hospitalization record notes that, other than rehabilitation, this was the first treatment for the Veteran at VA, which also indicates that no prior VA treatment records would be available. In short, the RO made numerous efforts to attempt to obtain the VA medical records since 1965. The VA facility affirmatively informed the RO that no such records were available. At this point, it is not clear whether the records ever existed or, if they did exist, they had become unavailable. Regardless, VA’s duty to assist has been met. See 38 C.F.R. § 3.159. Notwithstanding the absence of these post-service records, the Board finds that the Veteran’s assertions of being diagnosed within one year of service appear inaccurate. Most notably, the available VA medical records begin in February 1997. Since that time, he repeatedly and consistently reported a diagnosis beginning 20-25 years prior. On two separate occasions in February 1997, he reported a diagnosis of diabetes for 20 years. Later in February 1997, he gave a history of diabetes for 25 years. Again in December 1999, he reported a history of diabetes for 20 years. At a December 1999 Endocrinology evaluation, he stated that he was diagnosed with diabetes greater than 20 years ago at a free health screening but denied any symptoms at that time. In November 2007, it was noted that he was diagnosed with diabetes “recently.” Overall, these statements are inconsistent with his testimonial statements indicating symptoms during service and diagnosed within one year of service. Most notably, a 20-25 years history prior to 1997 would place the onset of the disease to no earlier than 1972. Even accepting that the Veteran was likely giving a rough ballpark estimate, this was still greater than one year after his September 1965 service separation. The Veteran’s statement in December 1999 also contradicts his testimonial statements. His December 1999 statement indicated a diagnosis at a passive health screening at a time when he was not having symptoms, which appears entirely inconsistent with his testimonial statements indicating extant symptoms during service with a diagnosis following within one year of service. Several recent statements in the medical records have been more consistent with his testimonial statements. During a VA examination in May 2001, he reported a 35-year history of diabetes. He then reported at an August 2013 VA examination that he was diagnosed with diabetes in 1962. An August 2017 VA Optometry note indicates a diagnosis in 1967. These statements tend to place the diagnosis during or at least in closer temporal proximity to service. For example, 35 years prior to 2001 would have been approximately 1966. This would have coincided with the one-year time period after service. Yet, his report of a diagnosis in 1962 would have been during his first year of service, which is inconsistent with his testimonial statements and his STRs. Likewise, the report of a diagnosis in 1967 would again place the diagnosis outside the one-year presumptive period after his service separation in September 1965. Overall, the Veteran’s supporting testimonial statements indicating symptoms during service with a diagnosis within one year of service separation appear motivated by secondary gain. All of the favorable statements were made in connection with a prior claim for nonservice-connected VA pension benefits filed in May 2000 or the instant service connection claim filed in October 2012. His statements prior to that time indicated an onset well after service. The Veteran’s reports made during treatment prior to those times appear more credible. They were made at a time when there was no apparent motivation for providing inaccurate information. To the contrary, he was seeking treatment so is assumed to have had a strong motivation to tell the truth as accurately as possible in order to receive proper care. See Gahman v. West, 12 Vet. App. 406 (1999); Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Moreover, there are other indications in his VA medical records indicating that he is not a reliable historian. For example, at a VA admission from December 1999 to January 2000, he endorsed psychotic symptoms, such as being able to read people’s minds and having “special powers.” During the course of this admission, he recanted these reports. This evidence is not directly probative to instant claims. But, it is representative of other evidence tending to indicate that the Veteran is not a reliable historian. Overall, this evidence establishes that the Veteran is not a credible historian. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996). The Board recognizes that this means his report of symptoms 20-25 years prior to 1997 might be the inaccurate account of his history. Yet, those unfavorable statements were more consistent over time and place, so appear more credible. As such, his account of symptoms during service followed by a diagnosis within one year of service cannot be accepted without some corroborating evidence. The other evidence, however, is either affirmatively negative or absent. For these reasons, a nexus is not established showing onset during service, or on a presumptive basis within one year of separation from service. Although a VA medical examination or opinion was not provided in connection with the claim, the Board finds that one is not necessary to make a decision on the claims. As shown, the Veteran’s sole contention is that he had symptoms during service and was diagnosed within one year after service. Because his statements are not credible, the evidence does not establish symptoms of the disease manifesting during service or within the presumptive period. A VA examination would not otherwise aid in substantiating the claim. Hence, remand for a VA examination is not needed. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Miller v. Wilkie, No. 18-2796 (U.S. Vet. App. Jan. 16, 2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent the Veteran is claiming peripheral neuropathy secondary to diabetes, because the claim of compensation for the primary disability, diabetes, is denied, the derivative claims of service connection for peripheral neuropathy cannot be granted on a secondary basis as the theory presupposes an underlying service-connected disability. See 38 C.F.R. § 3.310. Finally, the Board observes that the RO adjudicated a theory of entitlement involving exposure to Agent Orange. It does not appear the Veteran asserted this theory and it is not raised by the record. In fact, the evidence, including the official service department records, do not indicate potential exposure to Agent Orange, such as service in Vietnam. Thus, even if alleged, there is no evidentiary basis to indicate a nexus to service based on Agent Orange exposure. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In sum, the preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection is not warranted for type II diabetes mellitus and peripheral neuropathy of each of the four extremities. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.