Citation Nr: 21072096 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-37 758 DATE: December 2, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide agent exposure is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to diabetes mellitus type II is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to diabetes mellitus type is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus type is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus type is denied. FINDINGS OF FACT 1. The Veteran has not had diabetes mellitus type II at any time during the claim period or approximate thereto. 2. The preponderance of the evidence is against a finding that peripheral neuropathy of the right upper extremity is related to active service or is otherwise caused or aggravated by a service-connected disease or injury. 3. The preponderance of the evidence is against a finding that peripheral neuropathy of the left upper extremity is related to active service or is otherwise caused or aggravated by a service-connected disease or injury. 4. The preponderance of the evidence is against a finding that peripheral neuropathy of the right lower extremity is related to active service or is otherwise caused or aggravated by a service-connected disease or injury. 5. The preponderance of the evidence is against a finding that peripheral neuropathy of the left lower extremity is related to active service or is otherwise caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303. 2. The criteria for service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to August 1970. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for diabetes mellitus type II and peripheral neuropathy of bilateral upper and bilateral lower extremities. The Veteran disagreed with the RO's determination and a Statement of the Case (SOC) was issued in July 2016 addressing the matter. The Veteran timely appealed. The Board notes that in connection with his appeal, the Veteran requested and was scheduled for a videoconference hearing before a Veterans Law Judge, to be held in October 2021. Prior to the hearing, however, the Veteran through his representative withdrew his hearing request. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Diabetes Mellitus Type II The Veteran contends that diabetes mellitus type II is due to herbicide exposure when he was flown to Da Nang air base in the Republic of Vietnam for two days to repair an aircraft sometime in the early 1970s. A necessary element for establishing such a claim is the existence of current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1110 requires the existence of a present disability for VA compensation purposes). For the following reasons, this element of the claim has not been established. The Veteran's STRs are negative of complaints, treatment, or findings of diabetes mellitus type II. Post-service treatment records are similarly negative of treatment or findings of diabetes mellitus type II. The Veteran has not relayed a diagnosis of diabetes, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis) or identified outstanding records that could potentially identify such a diagnosis. The Veteran has therefore not met his burden of showing that he has diabetes mellitus type II disability for VA purposes. 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the support requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim). The current disability element of a service connection claim is defined broadly, Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (Fed. Cir. 2018) (pain can constitute disability if it results in impairment of earning capacity) and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim; Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the evidence of record does not demonstrate that the Veteran has had diabetes, a related disability at any time during the pendency of the claim, or related symptoms that cause impairment in earning capacity. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Based on the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection diabetes mellitus type II. The benefit of the doubt doctrine is therefore not for application, and the claim of service connection for diabetes mellitus type II must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Peripheral Neuropathy of the Upper and Lower Extremities As a preliminary matter, with regard to the claims of service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity on a direct basis, the evidence does not reflect, nor has the Veteran contended, that his peripheral neuropathy was incurred in or caused by his military service. Specifically, the Veteran's service treatment records (STRs) are negative of complaints or findings of peripheral neuropathy of the upper and lower extremities. At his June 1970 separation examination, no pertinent abnormalities were noted. There is also no evidence or allegation of a relationship between peripheral neuropathy of the upper and lower extremities and active service or any incident therein, and the Veteran has not contended otherwise. Consequently, no theory of entitlement other than secondary service connection, as indicated in his June 2013 claim, has been raised by the Veteran or the evidence of record with regard to the claims for service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity. The Board now turns to the discussion of secondary service connection. The Veteran contended in his June 2013 claim that he has peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity secondary to diabetes mellitus type II. In order for a disability to be service connected on a secondary basis, the disability must be either caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b) (service connection warranted for disability proximately due, to the result of, or aggravated by an already service-connected disease or injury). In this case, the Veteran is not in receipt of service connection for diabetes mellitus type II. Entitlement to service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity secondary to diabetes mellitus type II is therefore not warranted as a matter of law. For the foregoing reasons, the preponderance of the evidence is against the claims of service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity on a secondary basis and no other theory of entitlement has been raised by the Veteran or reasonably raised by the evidence of record. The benefit of the doubt doctrine is therefore not for application and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.