Citation Nr: 21063851 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-40 748 DATE: October 18, 2021 ORDER Entitlement to service connection for diabetes mellitus, type I and type II, to include as caused by in-service herbicide agent exposure is denied. Entitlement to service connection for diabetic nephropathy (claimed as renal disease), to include as caused by in-service herbicide agent exposure, and as secondary to claimed diabetes is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of diabetes mellitus, type I and has not been diagnosed with diabetes mellitus, type I during the pendency of the appeal. 2. The Veteran's diabetes, type I and type II did not have onset in service, or within one year of service discharge, nor is it related to any aspect of service, to include in-service herbicide exposure. 3. The Veteran's diabetic nephropathy is not related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes, type I and type II are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetic nephropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to November 1970, to include confirmed service in the Republic of Vietnam (Vietnam) from November 1969 to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. Jurisdiction is currently with the RO in Detroit, Michigan. In October 2019, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may 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 a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. Because the Veteran in this case served in Vietnam, exposure to herbicide agents has been conceded. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), 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 (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). Further, on January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021, H.R. 6395, amended 38 U.S.C. § 1116 (a)(2) and added Parkinsonism, bladder cancer, and hypothyroidism to the list of diseases presumptively associated with exposure to herbicide agents. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus, type I and type II, to include as caused by in-service herbicide agent exposure 2. Entitlement to service connection for diabetic nephropathy (claimed as renal disease) The Veteran claims entitlement to service connection for diabetes mellitus, type I and type II, and diabetic nephropathy, claimed as renal disease. The Veteran asserts that these disabilities were caused by in-service herbicide agent exposure. In the alternative, the Veteran asserts that his renal disease was caused by his diagnosed diabetes. In support of his claim, the Veteran submitted an October 2015 private Disability Benefits Questionnaire (DBQ). The private examiner diagnosed the Veteran with diabetes mellitus, type I and renal dysfunction due to diabetes. The examiner noted complications of diabetes, type I of diabetic peripheral neuropathy, diabetic neuropathy or renal function caused by diabetes mellitus, and diabetic retinopathy. The examiner opined, without rationale, that the Veteran's renal disease is permanently aggravated by diabetes. The examiner offered no nexus opinion regarding a connection of diabetes, type I to the Veteran's military service. The Veteran was afforded a VA examination in February 2016. The VA examiner determined that the Veteran has current diagnoses of diabetes mellitus type II and stage III chronic renal disease. Upon review of the Veteran's medical history, the examiner stated that the Veteran was initially diagnosed with diabetes, type I in 1974 due to pancreas failure and underwent a pancreas/renal transplant in 1999, which resolved the diabetes, type I. The examiner noted that the Veteran went without diabetic treatment until 2008, when he developed diabetes, type II. The examiner also noted that while the Veteran's private doctor listed diabetes type I and type II on his list of diagnoses, it is only possible to have one type of diabetes at a time, and the Veteran currently has diabetes, type II with some pancreatic dysfunction of the transplanted pancreas. The examiner opined that the Veteran's diabetes type II is more likely a complication of his failing transplanted pancreas for treatment of his type I diabetes and less likely related to Agent Orange exposure. In an October 2019 remand, the Board directed the RO to obtain an addendum opinion to clarify the Veteran's current diagnoses, to address internal inconsistencies in the February 2016 VA examination, and to provide an adequate rationale for the opinion that the Veteran's claimed conditions are not related to his military service. In a February 2020 addendum opinion, the examiner clarified that the Veteran has current diagnoses of diabetes mellitus, type II and chronic kidney disease, stage III. The examiner explained that type I diabetes is clinically distinct from type II diabetes. Regarding the claimed diabetes mellitus, type I, the examiner stated that there is no current diagnosis of diabetes mellitus, type I as it resolved after the Veteran underwent a 1999 renal-pancreas transplant. The examiner explained that individuals with diabetes mellitus, type 1 do not produce insulin and must be maintained on insulin injections or an insulin pump, and noted that prior to the pancreas-renal transplant the Veteran was treated with short- and long-acting insulin injections. The examiner further explained that individuals with type II diabetes "continue to produce insulin but don't respond to insulin as well as they should and often don't make enough insulin", and that these individuals can be maintained on oral medications and may need insulin injections. The examiner noted that after the Veteran's combined renal-pancreas transplant, he was no longer considered to have diabetes, type 1 as the transplanted pancreas was producing insulin. Regarding the Veteran's currently diagnosed diabetes mellitus, type II, the examiner opined that the Veteran's diabetes mellitus, type II is not the result of herbicide exposure and is not related to service. Rather, she opined that the Veteran's diabetes mellitus, type II is a complication of his failing transplanted pancreas, as type II diabetes did not develop until the failure of the transplanted pancreas. The examiner explained that the transplanted pancreas was rejected and the Veteran likely would not have developed diabetes mellitus, type II if the transplanted pancreas had continued to function. In addressing the Veteran's stage III chronic kidney disease, the examiner opined that the Veteran's current kidney function is not related to his failed transplanted pancreas. In reaching this opinion, the examiner explained that the pancreas does not affect kidney function. Further, she explained that while the transplanted pancreas failed after approximately ten years, the Veteran's kidney continues to function and he has not required hemodialysis. The examiner noted that "there is no guarantee that a transplanted kidney will continue to function as well at the 10-year mark as it did at the 1-year mark". The examiner opined that Diabetes certainly has the potential to affect a transplanted organ, especially a kidney...Veteran's current kidney dysfunction - chronic kidney disease, stage 3 - is less likely as not (less than 50/50 probability) caused by or the result of or aggravated by his currently diagnosed Diabetes type 2 - which this examiner does not find to be a service connected disability. Diabetes Mellitus, Type II The Veteran served in Vietnam and his exposure to herbicide agents is conceded. The Veteran has a current diagnosis of diabetes mellitus, type II. Service connection for type II diabetes may be granted on a presumptive basis if a veteran was exposed to herbicides, subject to the rebuttable presumptions of 38 C.F.R. § 3.307 (d). For the reasons explained below, the Board finds that the presumption under 38 C.F.R. § 3.309 (d) is rebutted. The Board acknowledges that the October 2015 private examiner diagnosed the Veteran with diabetes mellitus, type I and not diabetes mellitus, type II. However, for reasons explained below, the Board assigns limited probative value to the private DBQ. Rather, the Board finds the opinions of the VA examiners, in particular the February 2020 addendum opinion, to be highly probative regarding the issue of whether the Veteran's claimed conditions are related to his military service, as the opinion was based on a review of the evidentiary record and contained an adequate rationale. The February 2020 examiner explained that the Veteran has a current diagnosis of diabetes, type II. However, the examiner opined that the Veteran's type II diabetes is not presumptively related to his military service, to include herbicide exposure, as the clinical evidence showed that the Veteran's type II diabetes developed as a result of a failed pancreas transplant many years after service. The examiner opined that the Veteran would not have developed type II diabetes if the pancreas had continued to function. While the Veteran's private medical records prior to the 1999 transplant indicate only a "history of diabetes", the February 2016 and February 2020 VA examiners have clarified that the Veteran was diagnosed with diabetes mellitus, type I in 1974, and was not diagnosed with type II diabetes until 2008. As these examiners possess the knowledge, education, and experience necessary to assess and opine upon the nature and etiology of the Veteran's medical conditions. The most probative clinical evidence shows that the Veteran's diabetes mellitus, type II was caused by the failure of his transplanted pancreas and is not caused by exposure to herbicide agents. As such, the Board finds that the presumption under 38 C.F.R. § 3.309 (d) is rebutted, and entitlement to service connection for diabetes mellitus, type II, is not warranted on a presumptive basis due to herbicide exposure. The Board also concludes that service connection for diabetes mellitus, type II is not warranted on a direct basis. The Veteran's service treatment records are silent for complaints of, treatment for, or diagnosis of type II diabetes. Further, the February 2020 VA examiner, upon review of the evidentiary record, found that the Veteran's type II diabetes was the direct result of the failure of his transplanted pancreas, and not related to military service. There is no medical opinion of record which establishes that the Veteran's type II diabetes is directly related to service. As such, entitlement to service connection for diabetes mellitus, type II, is not warranted on a direct basis. Lastly, there is no competent and persuasive evidence that shows that the Veteran's pancreatic or kidney disease is related to service. Diabetes Mellitus, Type I The Veteran asserts that his diabetes mellitus, type I is related to service. While presumptive service connection for type I diabetes is not available as due to herbicide exposure under 38 C.F.R. § 3.309 (d), the Board has also considered whether the Veteran is entitled to service connection on a direct basis or on a presumptive basis under 38 C.F.R. § 3.309 (a). The Board concludes that the Veteran does not have a current diagnosis of diabetes mellitus, type I and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 2015 private DBQ noted a current diagnosis of type I diabetes, and opined that the Veteran's renal disease is at least as likely as not permanently aggravated by diabetes mellitus. However, the Board finds this examination of limited probative value, as it offers no opinion which connects the Veteran's diabetes mellitus and kidney disease to his military service, and provided no rationale for the opinion that his kidney disease is permanently aggravated by his diabetes. While diagnosing the Veteran with diabetes mellitus, type I, the examiner did not reconcile this diagnosis with the clinical evidence which indicates that the Veteran has a current diagnosis of diabetes mellitus, type II and offered no explanation of the progression of the Veteran's diabetes and kidney disease in light of his 1999 pancreas-renal transplant. The Board assigns limited probative value to this examination report as it is inconsistent with the clinical evidence of record which shows that the Veteran's type I diabetes resolved after a 1999 pancreas-renal transplant. The Board finds more probative the February 2020 VA addendum opinion which opined that the Veteran's current diagnosis is in fact diabetes mellitus, type II. As the VA addendum opinion fully addresses the Veteran's medical history and discusses his diagnoses of type I and type II diabetes, the Board finds that the most probative evidence indicates that the Veteran is not currently diagnosed with diabetes mellitus, type I. While the Veteran believes he has a current diagnosis of diabetes mellitus, type I, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). This is of particular importance in this case given the Veteran's complex medical history and multiple organ transplant. Consequently, the Board gives more probative weight to the competent medical evidence. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The probative medical evidence shows that the Veteran's type I diabetes resolved in 1999. As such, type I diabetes has not been diagnosed during the appellate period or close in time to the appeal period. The VA examination reports show no objective findings to support a diagnosis of diabetes mellitus, type I. In the absence of any persuasive and probative evidence that the Veteran has type I diabetes that is etiologically related to active service, service connection is not warranted and the claim must be denied. Here, because there is no current diagnosis of diabetes mellitus, type I or ascertainable functional impairment of earning capacity on account of diabetes mellitus, type I at any time relevant to the appeal period, service connection cannot be granted. Brammer, 3 Vet. App. 223. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). Diabetic Nephropathy, Claimed as Renal Disease As the Board has denied service connection for diabetes mellitus herein, secondary service connection cannot be granted for diabetic nephropathy, claimed as renal disease, on this basis as a matter of law. See 38 C.F.R. § 3.310 (a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Further, presumptive service connection for diabetic nephropathy or renal disease is not available as due to herbicide exposure under 38 C.F.R. § 3.309 (d). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.