Citation Nr: 21066158 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-60 050 DATE: October 28, 2021 ORDER Entitlement to service connection for diabetes mellitus type II is denied. REMANDED Entitlement to service connection for a nerve disorder of the left upper extremity is remanded. Entitlement to service connection for a nerve disorder of the right upper extremity is remanded. Entitlement to service connection for residuals of a stroke is remanded. FINDING OF FACT The Veteran does not have a diagnosis of diabetes mellitus type II meeting applicable standards, or a blood sugar/insulin disorder resulting in functional impairment, and has not had one at any point during the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to June 1969, including in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. The claims for service connection for a nerve disorder initially described the disability as peripheral neuropathy of the upper extremities. However, the Board notes that there is also a diagnosis of radiculopathy of the upper extremities. See C&P Exam, November 2020. Applicable law holds that a claim for benefits is not limited to a diagnosis named on a claims form, but must instead be considered for the functional impairment arising from the disorder. The Board has recharacterized the claims accordingly. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board previously remanded these matters in July 2021. The agency of original jurisdiction (AOJ) was asked to obtain an additional VA examination and medical opinions regarding the nature and etiology of the appealed conditions. The AOJ obtained a medical examination and opinions in August 2021. After reviewing the documents, the Board finds that substantial compliance is not established with the prior remand directives as to the claims of service connection for nerve disorders of the bilateral upper extremities, and residuals of a stroke, and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ has substantially complied with the directives as to the claim of service connection for diabetes mellitus type II. The Board will proceed with a decision on the merits of that claim. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain conditions listed at 38 C.F.R. § 3.309(e), including diabetes mellitus type II, service connection is presumed based on exposure to herbicide agents. For conditions not listed, service connection may still be granted on a direct basis if the evidence shows a link between the claimed condition and exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The existence of a current disability is the cornerstone of a VA compensation claim. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 1. Entitlement to service connection for diabetes mellitus type II A current diagnosis of diabetes mellitus type II or any other blood sugar disorder causing functional impairment has not been demonstrated at any time during the appeal period. The current disability element is not established, and the claim must fail as a matter of law. Neither VA nor private medical treatment records show a diagnosis of diabetes mellitus type II. The Veteran was not diagnosed with diabetes mellitus at his VA examination in August 2021. The examiner noted a laboratory finding of impaired fasting glucose. However, impaired fasting glucose is a laboratory finding and is not a disability for VA compensation purposes. See generally 61 Fed. Reg. 20440 (May 7, 1996) (stating, regarding hyperlipidemia, elevated triglycerides, and elevated cholesterol, that such are "laboratory test results, and are not, in and of themselves, disabilities"). Moreover, the examiner that the impaired fasting glucose would not result in any functional impairment of earning capacity. As the Veteran is not shown to have diagnosis of diabetes mellitus type II or a blood sugar or insulin disorder resulting in functional impairment at any time during the appeal period, he does not have a disability within the meaning of applicable law and regulations. See Brammer, 3 Vet. App. at 225; see also Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (holding that a medical disorder must result in functional impairment of earning capacity to be considered a disability for VA purposes). An essential element of service connection is not met. The appeal is denied. REASONS FOR REMAND 2. Entitlement to service connection for a nerve disorder of the left upper extremity is remanded. 3. Entitlement to service connection for a nerve disorder of the right upper extremity is remanded. Further clarification is needed regarding the medical evidence. See 38 U.S.C. § 5103A(d). The Board is aware that the previous decision in July 2021 asked for an opinion on radiculopathy, but not neuropathy, of the upper extremities. The August 2021 VA opinions reflect that the clinician considered the etiology of radiculopathy, but did not list a diagnosis neuropathy or consider its etiology. As the record is unclear as to whether the Veteran actually has a diagnosis of upper extremity neuropathy, and, if so, whether there is a causal relationship to service or a service-connected disability, further development is necessary. Additionally, the medical opinions as to whether an upper extremity nerve disorder is related to herbicide agent exposure or secondary to the lumbar spine disorder were conclusory and devoid of rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that a mere conclusion by a medical provider is insufficient to allow the Board to make an informed decision as to what weight to assign to the provider's opinion). An addendum opinion is necessary. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) 4. Entitlement to service connection for residuals of a stroke is remanded. An addendum medical opinion is necessary for the above claim. The August 2021 VA examiner issued a positive nexus opinion for a stroke with the following rationale: "Ischemic stroke is similar to a heart attack, except it occurs in the blood vessels of the brain. Ischemic Heart disease is one of the veteran's diseases associated with agent orange. In my opinion the claimed Stroke condition with residuals was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner's opinion is inadequate because it incorrectly found that the Veteran is service-connected for ischemic heart disease. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). Moreover, the examiner did not provide a coherent rationale as to whether or not the stroke was directly related to exposure to herbicide agents, as requested by the Board in the prior remand directives. The matters are REMANDED for the following actions: 1. Obtain an addendum medical opinion from a suitably qualified clinician other than the August 2021 examiner on the nature and etiology of the Veteran's nerve disorder of the bilateral upper extremities. Only if the clinician believes that a VA examination is necessary to answer the questions below should one be scheduled. The clinician is asked to review the claims file and opine as follows: (a) List all of the Veteran's diagnosed nerve disorders of the upper extremity (to include radiculopathy or neuropathy, if applicable) (b) Is it at least as likely as not that any of the Veteran's upper extremity nerve disorders began during or is causally related to service, to include exposure to herbicide agents? (c) Is it at least as likely as not that any of the Veteran's upper extremity nerve disorders is proximately due to or a result of a service-connected disability, to include a lumbar spine disorder? (d) Is it at least as likely as not that any of the Veteran's upper extremity nerve disorders underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include a lumbar spine disorder? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to show increase in disability. Moreover, any incremental increase in disability need not be permanent. A complete rationale should be provided for all opinions. The clinician is asked to consider and discuss relevant lay and medical evidence to specifically include: VA examinations in November 2020, listing a diagnosis of upper extremity radiculopathy, and listing lower extremity radiculopathy as a complication of service-connected lumbar disorder The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. 2. Obtain an addendum medical opinion from a suitably qualified clinician other than the August 2021 examiner on the nature and etiology of the Veteran's residuals of a stroke. The clinician is asked to review the claims file and to opine on the following: Is it at least as likely as not that the Veteran's stroke and residuals began during or are causally related to service, to include exposure to herbicide agents? A complete rationale should be provided for all opinions. The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.