Citation Nr: 21002182 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-16 547 DATE: January 13, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as due to tactical herbicide exposure and/or secondary to service-connected Parkinson’s disease is denied. REMANDED Entitlement to service connection for a heart disorder, to include as due to herbicide exposure is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had diabetes mellitus at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1960 to December 1964 and September 1965 to October 1967. These matters originally came before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in September 2020 for further development. That development has been completed, and the case has since been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § § 1110, 1131 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of the continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease 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). To establish service connection for the claimed disorder, there must be competent and credible (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing before the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. Presumptive service connection is available for specific diseases associated with exposure to herbicide agents listed under 38 C.F.R. § 3.309(e) if the disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307. Such diseases include: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; type II diabetes mellitus or adult-onset diabetes; Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma, non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). In the case of early-onset peripheral neuropathy, it shall become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed. Id. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure and/or secondary to service-connected Parkinson’s disease In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for diabetes mellitus. The October 2020 VA examiner found that he does not have a current diagnosis of diabetes mellitus. He has idiopathic peripheral neuropathy listed as a diagnosis and does not have diabetic neuropathy. The 2009 glucose tolerance test did not meet the criteria for type 2 diabetes and there was no laboratory evidence of type 2 diabetes. In 2009, he had evidence of impaired fasting glucose, which is a laboratory finding, not a clinical diagnosis of a disease or disability. See October 2020 VA medical opinion. Service connection is not for application where there are symptoms without an associated clinical diagnosis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a disability for which benefits are claimed. While the Veteran may report on symptoms, he is not competent to diagnose the underlying disability. In this case, where the evidence shows no current disability upon which to predicate a grant of service connection, at any time during the claim period, there can be no valid claim for that benefit. See Brammer at 225; Rabideau, 2 Vet. App. 141, 143-44 (1992). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for diabetes, and the claim must be denied. As the preponderance of the evidence is against the claim for service connection for diabetes, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a heart disorder, to include as due to herbicide exposure is remanded. The examiner found that the Veteran did not have a diagnosis of ischemic heart disease (IHD). However, he does have current diagnoses of hypertensive heart disease and mild aortic stenosis. The examiner stated that the Veteran’s heart disabilities are less likely as not related to military service, to include herbicide exposure therein, as the service treatment records are silent for any heart condition and they are not on the presumptive list. See October 2020 VA medical opinion. Nevertheless, the Veteran served in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents in service. Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (stating that the inapplicability of presumptive service connection “does not foreclose proof of direct service connection”). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, although the additional delay is regrettable, the Board finds that a remand is necessary for an addendum opinion addressing the relationship, if any, between the Veteran’s presumed herbicide exposure and his current heart disabilities. The matter is REMANDED for the following action: 1. Obtain all relevant, outstanding VA treatment records and associate them with the claims file. 2. Thereafter, arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any identified heart disability, including hypertensive heart disease, had its clinical onset during service or is due to an event or incident of the Veteran’s period of active service, to include his presumed tactical herbicide exposure. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In addition, in providing the opinion, the examiner must take into account the Veteran’s personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner may not rely solely on the fact that a heart disability is not on the presumptive list of diseases associated with herbicide exposure. 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.