Citation Nr: 21066188 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 20-21 574 DATE: October 28, 2021 ORDER Service connection for ischemic heart disease (IHD) is denied. Service connection for diabetes is denied. FINDINGS OF FACT 1. The weight of competent and credible evidence of record is against finding that the Veteran was exposed to herbicide agents during service. 2. The weight of competent and credible evidence of record is against finding that the Veteran has had ischemic heart disease at any time during or approximate to the pendency of the claim. 3. The Veteran's diabetes was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established or is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from May 1960 to May 1969 and from December 1970 to March 1982. These matters come before the Board of Veterans' Appeals (Board) from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board. In August 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain VA Medical Center treatment records since April 2020, ask the Veteran to complete a VA Form 21-4142 and to make two requests for the authorized records from any identified providers unless it is clear after the first request that a second request would be futile, and finally to determine which of the Veteran's reported stressors are capable of verification. In August 2020, the AOJ added VA Medical Center treatment records from April 2020 to August 2020. The AOJ also sent the Veteran a blank VA Form 21-4142 and asked the Veteran to complete the form so that it could obtain treatment records on his behalf. In March 2021, the AOJ obtained private treatment records from Imperial Health, Dr. Harvey, Dr. Gilbert, Dr. White, and Dr. Lubbos. The AOJ informed the Veteran that they could not obtain medical records from Dr. DeLapp, but the records were associated with the Veteran's file in April 2021. In May 2021, the Veteran's attorney requested to expedite the case due to terminal illness of the Veteran. In August 2021, the Veteran was afforded a VA examination for his PTSD claim. Before the matter was certified to the Board, in a September 2021 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial 70 percent rating, effective September 12, 2012. The award of service connection for PTSD constitutes a complete grant of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in September 2021. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) 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). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical, or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of the chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336; 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert, 1 Vet. App. at 54. 1. Service connection for ischemic heart disease (IHD) 2. Service connection for diabetes The Veteran contends that his IHD and diabetes were caused by his active service, to include exposure to herbicide agents while serving in Korea. As an initial matter, the Board finds that there is insufficient evidence of the Veteran being exposed to herbicide agents while in active service. As discussed in the prior August 2020 Board decision, the Veteran was stationed in Korea from September 21, 1966 to November 13, 1967, nearly a year before the statement of another soldier who witnessed use of herbicide agents between October 1968 to 1969, and prior to the period specifically cited in 38 C.F.R. § 3.307(a)(6)(iv) which is between April 1, 1968 to August 31, 1971. In July 2013, the Joint Services Records Research Center (JSRRC) found that there was lack of information required to corroborate herbicide exposure after reviewing the Veteran's service and service treatment records. Thus, the probative evidence weighs against finding that the Veteran being exposed to herbicide agents during service on a direct or presumptive basis. There is also no evidence of the Veteran's IHD or diabetes having incurred in service. Service treatment records do not show any complaints of, treatment for, or diagnosis of IHD or diabetes, with the Veteran denying any ailments in February 1973, and denying all ailments other than leg cramps and recurrent back pain in January 1979. In February 1982, the Veteran complained of chest pain, but after a normal electrocardiogram (ECG), the assessment was chest wall pain. In a report of medical history prior to his discharge, the Veteran denied having, or having ever had, heart trouble. Regarding IHD, the Veteran had stent graft insertion in 2011 after an abdominal aortic aneurysm (AAA) was found in September 2011. He was also diagnosed as having hypertension but had no history of organic heart disease. There was no diagnosis of a current IHD in either the private or VA medical treatment records. In summary, the most probative evidence establishes that the Veteran does not have a current IHD and has not had one at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Thus, with regard to the claim of service connection for ischemic heart disease, the first of the three requirements for service connection is not met. See Shedden, 381 F.3d at 1167. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application and the claim of service connection for IHD is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. With regards to the claim of service connection for diabetes, the most probative evidence establishes that the Veteran was diagnosed as having diabetes mellitus more than a decade after discharge, rather than within a year after discharge as required to establish presumptive service connection. The Veteran was discharged from active duty in March 1982 and was first diagnosed as having diabetes mellitus in December 1994 likely due to pancreatic endocrine insufficiency. The Veteran is not service-connected for pancreatic endocrine insufficiency or any other disability related to the pancreas. The December 1994 medical practitioner opined that it was a "new onset" indicating that it was not a chronic disease that developed more than a decade ago when the Veteran was discharged from active service. There is also no evidence of chronicity of symptoms, with the Veteran reporting that he was in good health until October 1994. (continued next page) Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran's claim, and as such entitlement to service connection for diabetes mellitus is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.