Citation Nr: 21001819 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-05 177 DATE: January 11, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities, as secondary to diabetes mellitus, is denied. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, as secondary to diabetes mellitus, is denied. Entitlement to service connection for diabetic retinopathy, as secondary to diabetes mellitus, is denied. Entitlement to service connection for kidney failure, as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. The Veteran did not serve in Vietnam or otherwise demonstrate exposure to herbicide agents during active service. 2. Diabetes mellitus did not manifest in service or to a compensable degree within one year of separation from active service, and is otherwise unrelated to service. 3. The Veteran’s peripheral neuropathy of the bilateral upper and lower extremities, diabetic retinopathy, and kidney failure are not secondary to a service-connected disability and are not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy, bilateral upper extremities, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for peripheral neuropathy, bilateral lower extremities, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for diabetic retinopathy, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for kidney failure, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1974 to July 1978, with additional service with the Reserves. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is of record. The Board remanded the appeal in September 2018 and again in June 2020 for additional development. There has been substantial compliance with the June 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Diabetes mellitus is a “chronic disease” under 38 C.F.R. § 3.309 (a). In addition, service connection for certain diseases, including diabetes mellitus, may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide agent (to include Agent Orange) applies for a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, served in certain areas in Thailand, or in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313. 1. Entitlement to service connection for diabetes mellitus is denied. The Veteran asserts that his diabetes mellitus is related to his active service. Initially, the Board notes that the Veteran is not presumed to have had in-service exposure to herbicide agents. His DD Form 214 and military personnel records do not show that he had service in the Republic of Vietnam between January 9, 1962 to May 7, 1975. The military personnel records show that he was aboard USS England from May 1975 to March 1977 and the USS Long Beach from March 1977 to July 1978. While the two ships are included in the list of vessels associated with service in Vietnam and exposure to herbicide agents, the period he was aboard is outside the presumption period for presumed exposure. The evidence of record does not otherwise establish that he was directly exposed to herbicide agents while in service. Therefore, service connection under a presumptive basis pursuant to 38 U.S.C. § 1116 is not for application. See 38 C.F.R. § 3.309 (e). There also is no competent evidence to show that diabetes was noted in service or that it manifested to a compensable degree within one year of separation from service. The Veteran’s service treatment records for the period of active duty service from August 1974 through July 1978 were negative for any complaints, diagnosis, or treatment for diabetes or elevated glucose. His June 1978 separation examination did not reveal a diagnosis of diabetes mellitus, and the urinalysis test was negative for sugar. A June 1978 report of medical history did not indicate diabetes, and he noted “no” for sugar or albumin in urine. Reserve service records include an August 1980 report of examination, which did not note diabetes, and the Veteran was recommended to lose 40 pounds. In an August 1980 report of medical history, the Veteran stated he was in good health condition without any medications. He noted “no” for sugar or albumin in urine. A periodic May 1984 examination noted negative for sugar. In the summary of defects, “Type 2 DM control by private physician” was noted. In a May 1984 report of medical history, the Veteran noted “yes” for sugar or albumin in urine. The reviewing physician noted, “Pt is apparently a Type II diabetic well controlled on diet; needs to bring report from private physician.” In a November 1985 periodic examination, the examiner noted that evaluation by a private physician is needed for possible diabetes. In a November 1985 report of medical history, the Veteran noted, “found sugar in blood was treated and diet physician for weight control in 1982-83.” The reviewing physician noted history for glucosuria, and that the Veteran needs to have fasting blood sugar done to determine if diabetic. A January 1986 letter from Dr. R.E.S. noted that the Veteran presented for a complete physical exam, and provided a history of borderline elevation of blood sugar and being overweight. The Veteran reported he had been placed on a diet and lost 30 pounds. He reported he started on Orinase to reduce hyperglycemia, but denied taking any in the past five months. R.E.S. noted fasting blood sugar was elevated and urine showed 4+ glucose. R.E.S. continued the ADA diet for hyperglycemia and weight loss. R.E.S. noted the Veteran needed to see him every two weeks for monitoring, and that if the hyperglycemia did not respond adequately to diet, he may need to restart hypoglycemic drug. R.E.S. noted the Veteran is physically able to continue his military duties, and that addition of an oral hypoglycemic would not adversely affect his performance. A July 1986 periodic examination noted positive for sugar, and that the Veteran had persistent fasting hyperglycemia. In a July 1986 report of medical history, the Veteran stated that he has been classified as a borderline diabetic and is currently taking Glucotrol tablets. The reviewing physician noted, “hx of glucosuria & hyperglycemic 1983 - under diet & medical care.” A May 1988 periodic examination noted the Veteran was 4+ for sugar. In a May 1988 report of medical history, the Veteran stated he is classified as a borderline diabetic taking Glucotrol 10mg, and is on a diet for weight loss. In a January 1989 letter, Dr. R.B.S. at South Texas Medical Clinics noted that the Veteran presented to his clinic for establishment of care. The Veteran complained of nasal drainage and congestion with facial headaches. R.B.S. noted the Veteran’s past medical history was significant for diabetes mellitus for which he takes Glucotrol 10mg for every morning. The assessment noted type II diabetes mellitus. An April 1990 periodic examination noted 4+ for sugar, and that the Veteran needed a weight reduction program. In an April 1990 report of medical history, the Veteran stated he is a borderline diabetic and takes Glucotrol. A June 1991 periodic examination noted negative for sugar. In a June 1991 report of medical history, the Veteran stated he has been classified as a borderline diabetic and takes Glucotrol. In a November 1991 letter, R.B.S. wrote, “[the Veteran] is a gentleman followed in my clinic for Type II diabetes mellitus. The present medications include an ADA diet, 1800 calories, and Micronase 5 mgs. twice a day. The prognosis is good if continued compliance with the medication and diet are maintained. Please contact me if any further information is required. Yours sincerely, R[.]B.S[.], M.D.” A June 1992 letter from Dr. K.T. wrote that the Veteran is under his care for weight control due to being classified as a borderline diabetic. K.T. noted the Veteran will be taking medication while under his care. A September 1993 periodic examination noted 2+ for sugar. In a September 1993 report of medical history, the Veteran stated that he is a non-insulin-dependent diabetic. He stated his diabetes is controlled by diet and oral medication. A January 1994 retention examination noted positive for sugar and that the Veteran had diabetes mellitus. In a January 1994 report of medical history, the Veteran reported he is classified as a borderline diabetic and takes Glucotrol 10mg twice a day. The reviewing physician noted the Veteran is under care for diabetes, and has been taking oral medication for 13 years. During the July 2018 Board hearing, the Veteran reported a female physician M. at Hillcroft Medical Clinic informed him around 1979 that he was borderline diabetic, and that he could control it with oral medication and weight control. In September 2018, the Veteran submitted a September 1979 letter dated from R.B.S. at South Texas Medical Clinics that wrote, “[the Veteran] is a gentleman followed in my clinic for Type II diabetes mellitus. The present medications include an ADA diet, 1800 calories, and Micronase 5 mgs. twice a day. The prognosis is good if continued compliance with the medication and diet are maintained. Yours sincerely, R[.]B.S[.], M.D.” Given the foregoing, presumptive service connection, on the basis of a chronic disease and continuity of symptomatology, is not warranted. 38 C.F.R. § 3.303(b), 3.307, 3.309. The Veteran’s June 1978 examination at separation from active duty did not reveal a diagnosis of diabetes, and his blood sugar was found negative. The August 1980 re-enlistment record for the Reserves did not reveal diabetes or elevated glucose, and he denied sugar in urine. A physician first noted type 2 diabetes mellitus in a May 1984 record, which is many years after separation. Therefore, service connection for diabetes mellitus on a presumptive basis is not warranted. 38 C.F.R. § 3.303(b), 3.307, 3.309. The evidentiary record does include a September 1979 letter from R.B.S. that mentions type 2 diabetes. However, the Board finds that the letter affords no probative value. The content and the signature of the September 1979 letter is identical to a November 1991 letter from the same physician, except for an additional last sentence in the 1991 letter. The 1991 letter appears credible as the contents are in line with other medical records in the similar period. However, the 1979 letter is not credible as a January 1989 record from R.B.S. noted that the Veteran first established medical care in his clinic in January 1989. Indeed, the claims file is devoid of any treatment record from R.B.S. prior to January 1989. As the 1979 letter inexplicably predates establishment of care by 10 years, the Board finds the letter not credible. Further, the Veteran testified at the July 2018 Board hearing that a female physician M. from Hillcroft Medical Clinic first informed him around 1979 that he was borderline diabetic. R.B.S. is a male physician from South Texas Medical Clinics. Thus, the credibility of the September 1979 letter is further questioned. Even if the September 1979 letter was valid, it is past the one-year presumption period. Accordingly, service connection on a presumptive basis is not warranted. Although service connection for diabetes mellitus is not established on a presumptive basis, the Board must consider whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For the reasons stated below, the Board finds that service connection on a direct basis is also not warranted. The Veteran’s service treatment records are negative for a diagnosis of diabetes. There is no competent medical opinion linking the current diabetes to service or similar evidence suggesting a causal connection. The Veteran, as a lay person, is not competent to diagnose diabetes mellitus or determine its etiology as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has not been afforded with a medical examination in connection with his claim. However, because the evidence does not indicate an association between the current diabetes and active duty service, VA’s duty to assist to provide a medical opinion to further explore a possible link has not been triggered. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). In sum, service connection for diabetes mellitus is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities, as secondary to diabetes mellitus, is denied. 3. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, as secondary to diabetes mellitus, is denied. 4. Entitlement to service connection for diabetic retinopathy, as secondary to diabetes mellitus, is denied. 5. Entitlement to service connection for kidney failure, as secondary to diabetes mellitus, is denied. At the July 2018 hearing, the Veteran asserted that peripheral neuropathy of his bilateral upper and lower extremities are all secondary to his diabetes mellitus. See July 2018 Board hearing transcript at 10. He does not contend, nor does the evidence show, that these conditions had onset in or are directly related to service. Thus, the Board will examine these claims on a secondary service connection basis, pursuant to 38 C.F.R. § 3.310(a). See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008). Service treatment records showed no complaints or treatments relating to the peripheral neuropathy of the bilateral upper and lower extremities, eyes, and kidney. Post-service medical treatment records reflect current diagnoses for these disabilities, but there is no competent evidence relating these disabilities to active service. The Board has determined that service connection for diabetes mellitus is not warranted. As a result, secondary service connection is not possible for peripheral neuropathy of the bilateral upper and lower extremities, diabetic retinopathy, and kidney failure. See 38 C.F.R. § 3.310; Harder v. Brown, 5 Vet. App. 183, 187-89 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The preponderance of the evidence weighs against the claims of service connection for peripheral neuropathy of the bilateral upper and lower extremities, diabetic retinopathy, and kidney failure; consequently, the claims must be denied. Therefore, the benefit of the doubt rule does not apply, and service connection is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi, 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.