Citation Nr: 21004473 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 11-12 992 DATE: January 27, 2021 ORDER 1. Entitlement to service connection for hepatitis C is denied. 2. Entitlement to service connection for rheumatoid arthritis is denied. 3. Entitlement to service connection for type II diabetes mellitus is denied. 4. Entitlement to service connection for numbness in the hands and feet, to include as secondary to type II diabetes mellitus, is denied. 5. Entitlement to service connection for a breathing and throat condition, to include chronic sinusitis and rhinosinusitis (respiratory disability), is denied. 6. Entitlement to a total disability rating for compensation based on individual unemployability due to a service-connected disability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. Hepatitis C did not have its onset during active service and is not otherwise related to active service. 2. Rheumatoid arthritis did not have its onset during active service, was not manifested within one year following service discharge, and is not otherwise related to active service. 3. The Veteran does not have a current diagnosis of type II diabetes mellitus. 4. The preponderance of the evidence is against a finding that the Veteran has numbness in the hands and feet. 5. A respiratory disability did not have its onset during active service and is not otherwise related to active service. 6. The Veteran is in receipt of a 100 percent schedular disability rating for his service-connected PTSD from January 13, 2016, including throughout the duration of the appeal period; therefore, the claim of entitlement to a TDIU rating has been rendered moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for rheumatoid arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for numbness of the hands and feet have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to October 1971, with service in Vietnam from December 1970 to October 1971. He has an additional period of active duty from September 1972 to November 1973, which was previously determined to be an ineligible period for compensation benefits. In July 2017, the Board of Veterans’ Appeals (Board) remanded these claims for additional development. In April 2019, the Board remanded the claims again for additional development. Specifically, the Board remanded the matter to send the Veteran VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and asked him to fill the form out in its entirety. The Board also requested that the agency of original jurisdiction (AOJ) conduct an exhaustive search for outstanding service treatment records, including induction medical examinations and the November 1973 discharge medical examination. The Board finds there has been substantial compliance with the Board’s directives and will now evaluate the claims on the merits. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (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. For certain chronic diseases, including arthritis and diabetes mellitus, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Additionally, service connection for certain specified diseases, including type II diabetes mellitus and early-onset peripheral neuropathy, may be granted on a presumptive basis due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in 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. Even where service connection cannot be presumed, service connection may still be established on a direct basis. 1. Entitlement to service connection for hepatitis C The Veteran believes his hepatitis C had its onset during service because he became involved with drugs and shared needles with other people while stationed in Vietnam. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for service connection for hepatitis C. The reasons follow. As to evidence of a current disability, a July 2006 VA medical treatment record shows that the Veteran was diagnosed with hepatitis C. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran was diagnosed with or treated for hepatitis C during his first period of service or soon after that period of service. For example, the October 1969, September 1972, and October 1973 Reports of Medical Examination shows that the Veteran was found to be clinically normal in all areas, including his endocrine system. The October 1969 Report of Medical History shows that the Veteran reported to be in excellent health and denied ever having or having any drug or narcotic habit; stomach, liver, or intestinal trouble; or jaundice. Additionally, the September 1972 Report of Medical History shows that the Veteran denied ever having or having stomach, liver, or intestinal trouble; or jaundice or hepatitis. Thus, the preponderance of the evidence is against a finding that the second element of a service-connection claim is met. Additionally, the preponderance of the evidence is against a nexus between the current disability and service. For example, the Veteran was diagnosed with hepatitis C in July 2006. In December 2005, he denied intravenous drug use “ever.” This December 2005 denial would refute the Veteran’s allegation of having shared needles while in service. Nevertheless, there is no competent evidence of a nexus between the post-service diagnosis of hepatitis C and service. While the Veteran alleges that hepatitis C was incurred in service, he is not competent to directly link hepatitis C to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. At the present time, there is no competent evidence establishing a nexus between the diagnosis of hepatitis C and service. The Veteran was not afforded a VA examination or medical opinion in connection with the claim for service connection for hepatitis C. The Board finds that the facts do not establish entitlement to a VA examination or medical opinion for this claim. For example, VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As explained above, the evidence does not establish that an event, injury, or disease related to hepatitis C occurred in service or that the disability may be related to service. For a VA examination and/or medical opinion to be warranted, all the criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for the claim for service connection for hepatitis C. In conclusion, given the above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for hepatitis C. As such, there is no reasonable doubt to be resolved, and the claim is denied. 2. Entitlement to service connection for rheumatoid arthritis The Veteran believes his rheumatoid arthritis had its onset during service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for service connection for rheumatoid arthritis. The reasons follow. As to evidence of a current disability, a July 2006 VA medical treatment record shows that the Veteran was diagnosed with rheumatoid arthritis. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran was diagnosed or treated for rheumatoid arthritis during his first period of service. For example, the October 1969, September 1972, and October 1973 Reports of Medical Examination shows that the Veteran was found to be clinically normal in all areas, including his upper and lower extremities. The October 1969 Report of Medical History shows that the Veteran reported to be in excellent health and only noted that he had foot trouble. He specifically denied ever having or having swollen or painful joints; arthritis or rheumatism; or bone, joint, or other deformity. In the September 1972 Report of Medical History, the Veteran again specifically denied ever having or having any rheumatic fever; swollen or painful joints; arthritis or rheumatism; or bone, joint, or other deformity. Thus, the preponderance of the evidence is against a finding that the second element of a service-connection claim is met. Additionally, the preponderance of the evidence is against a nexus between the current disability and service. For example, the Veteran was diagnosed with rheumatoid arthritis in July 2006. The fact that the Veteran was diagnosed with rheumatoid arthritis 35 years after service is evidence that tends to weigh against rheumatoid arthritis being related to service. It is also affirmative evidence that arthritis was not manifested within one year following service discharge. While the Veteran has alleged that rheumatoid arthritis is related to service, he is not competent to directly rheumatoid arthritis to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. At the present time, there is no competent evidence establishing a nexus between the diagnosis of rheumatoid arthritis and service. The Veteran was not afforded a VA examination or medical opinion in connection with the claim for service connection for rheumatoid arthritis. The Board finds that the facts do not establish entitlement to a VA examination or medical opinion for this claim. The Board has laid out the criteria for entitlement to a VA examination or medical opinion previously. See McLendon, 20 Vet. App. 79. As explained above, the Board finds the evidence does not establish that an event, injury, or disease related to rheumatoid arthritis occurred in service or that the disability may be related to service. For a VA examination to be warranted, all the criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for the claim for service connection for rheumatoid arthritis. In conclusion, given the above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for rheumatoid arthritis. As such, there is no reasonable doubt to be resolved, and the claim is denied. 3. Entitlement to service connection for type II diabetes mellitus The Veteran believes he has type II diabetes mellitus related to service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for service connection for type II diabetes mellitus. The reasons follow. Regarding the first element of a service connection claim, the requirement of a current disability, the Board notes that the evidence does not show that the Veteran has been diagnosed with type II diabetes mellitus during the appeal period. For example, the Veteran was afforded a VA examination in August 2008. During that examination, the Veteran denied that he was had been diagnosed with diabetes mellitus. He also denied having symptoms of diabetes, such as numbness and tingling in his hands and feet. His blood work showed that the Veteran was within the normal range for A1C. Furthermore, 2018 and 2019 VA medical treatment records show that the Veteran does not have diabetes mellitus. Thus, at the present time, there is no competent evidence showing a formal diagnosis of type II diabetes mellitus for the period on appeal. In other words, the Veteran has alleged he has diabetes mellitus without submitting evidence to support that diagnosis, to include describing symptoms indicative of functional impairment of earning capacity. Thus, the preponderance of the evidence is against a finding that the first element of a service-connection claim is met. The Board is mindful that the Veteran’s service personnel records document his active service in the Republic of Vietnam; therefore, he is presumed to have been exposed to herbicide agents during such service, which is sufficient to satisfy the second element of his service-connection claim. However, while diabetes mellitus would generally be presumed to be related to active service based upon the Veteran’s presumed exposure to herbicide agents in Vietnam, given the absence of competent evidence of the Veteran having type II diabetes mellitus, service connection on a presumptive basis is denied. To the extent that the Veteran asserts generally that he has type II diabetes mellitus, which is related to active service, including his presumed exposure to herbicide agents, the Board finds that he lacks the medical expertise to diagnose a complex and internal disease process like diabetes mellitus. In conclusion, given the above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for type II diabetes mellitus. As such, there is no reasonable doubt to be resolved, and the claim is denied. 4. Entitlement to service connection for numbness in the hands and feet, to include as secondary to type II diabetes mellitus The Veteran asserts that the numbness in his hands and feet is secondary to diabetes mellitus. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for service connection for numbness in the Veteran’s hands and feet. The reasons follow. As noted above, the Board finds that the Veteran has not been diagnosed with type II diabetes mellitus, and has denied service connection for such disability. Therefore, service connection for numbness in the hands and feet cannot be a basis for a secondary service-connection claim. The Board is mindful that the Veteran’s service personnel records document his active service in the Republic of Vietnam; therefore, he is presumed to have been exposed to herbicide agents during such service, which is sufficient to satisfy the second element of his service-connection claim. However, while diabetes mellitus would generally be presumed to be related to active service based upon the Veteran’s presumed exposure to herbicide agents in Vietnam, given the absence of competent evidence of the Veteran having type II diabetes mellitus, service connection on a presumptive basis is denied. For background purposes, effective September 6, 2013, VA amended its regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. 78 Fed. Reg. 54736 (Sept. 6, 2013). Specifically, VA amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term “acute and subacute peripheral neuropathy” with the term “early-onset peripheral neuropathy.” VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Id. Under the amendments, peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. Id. Here, the Veteran has not provided competent evidence, to include alleging that he had numbness of the hands or feet, within one year of his service in Vietnam, which would have been when he was last exposed to herbicides. In fact, there is evidence to the contrary. For example, a September 1972 Report of Medical Examination shows that clinical evaluations of the upper extremities, lower extremities, feet, and neurological system were all normal. In the corresponding Report of Medical History, the Veteran denied a history of lameness, neuritis, paralysis, or foot trouble. This was 11 months after the Veteran left Vietnam, and he was not documenting symptoms of numbness in his hands and feet. Thus, presumptive service connection for early-onset peripheral neuropathy is not warranted. Furthermore, the preponderance of the evidence is against complaints of or treatment for numbness in the hands and feet during the appeal period. For example, the Veteran was afforded a VA examination in August 2008. During that examination, the Veteran denied having symptoms associated with diabetes mellitus, including numbness and tingling in his hands and feet. A review of the Veteran’s claims file shows that instead of numbness, the Veteran complained of swelling in his hands and feet related to his rheumatoid arthritis. VA treatment records consistently show normal neurological examinations throughout the appeal period, where the examiner consistently documented, “No focal neurological deficits.” Additionally, the symptoms noted by the Veteran are not indicative of functional impairment of earning capacity. Thus, the preponderance of the evidence is against a finding that the first element of a service-connection claim is met. Without evidence of a current disability, to include functional impairment of earning capacity, service connection is not warranted. While the Veteran has alleged he has numbness in the hands and feet, he is not competent to directly link such symptoms to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of a current disability and etiology may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. In conclusion, given the above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for numbness of hands and feet. As such, there is no reasonable doubt to be resolved, and the claim is denied. 5. Entitlement to service connection for breathing and throat condition, to include sinusitis and rhinosinusitis The Veteran believes his respiratory disability had its onset during service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a respiratory disability. The reasons follow. As to evidence of a current disability, a January 2006 VA medical treatment record shows that the Veteran was diagnosed with allergic rhinosinusitis and sinusitis. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran was diagnosed or treated for a respiratory disability during his first period of service. For example, the October 1969, October 1971, September 1972, and October 1973 Reports of Medical Examination shows that the Veteran was found to be clinically normal in all areas, including his sinuses; nose; mouth and throat; and lungs and chest. The October 1969 Report of Medical History shows that the Veteran reported to be in excellent health and only reported that he had foot trouble. He specifically denied ever having or having any sinusitis; hay fever; asthma; shortness of breath; or chronic cough. In the September 1972 Report of Medical History, the Veteran specifically denied ever having or having ear, nose, or throat trouble; sinusitis; hay fever; asthma; or shortness of breath. Thus, the preponderance of the evidence is against a finding that the second element of a service-connection claim is met. Additionally, the preponderance of the evidence is against a nexus between the current disability and service. For example, the Veteran was diagnosed with a respiratory disability in December 2005. The fact that the Veteran was diagnosed with a respiratory disability 34 years after service is evidence that tends to weigh against a respiratory disability being related to service. While the Veteran has alleged that his respiratory disability is related to service, he is not competent to directly link a respiratory disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. At the present time, there is no competent evidence establishing a nexus between the diagnosis of a respiratory disability and service. The Veteran was not afforded a VA examination or medical opinion in connection with the claim for service connection for a respiratory disability. The Board finds that the facts do not establish entitlement to a VA examination or medical opinion for this claim. The Board has laid out the criteria for entitlement to a VA examination or medical opinion previously. McLendon, 20 Vet. App. 79. As explained above, the Board finds as fact that the record does not show evidence establishing that an event, injury, or disease related to a respiratory disability occurred in service or that the respiratory disability may be related to service. For a VA examination and/or medical opinion to be warranted, all the criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for the claim for service connection for a respiratory disability. In conclusion, given the above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for a respiratory disability, to include sinusitis or rhinosinusitis. As such, there is no reasonable doubt to be resolved, and the claim is denied. 6. Entitlement to TDIU rating A TDIU rating is assignable only where the schedular rating is less than total. See 38 C.F.R. § 4.16. Notably, the Veteran is in receipt of a 100 percent disability rating for his service-connected PTSD from January 13, 2016, which is the date service connection was awarded. This means that the Veteran is in receipt of a 100 percent since service connection was granted. Additionally, the Veteran is not service connected for any other disability. In a May 2017 Appellant’s Brief prepared by the Veteran’s representative, the representative stated that the Veteran has not expressed dissatisfaction with the PTSD evaluation. Therefore, consideration of the claim for entitlement to a TDIU rating is rendered moot. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the claim of entitlement to a TDIU rating is dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.