Citation Nr: A21020046 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 211028-196276 DATE: December 15, 2021 ORDER New and relevant evidence has been received to warrant readjudicating the claim for service connection for diabetes mellitus, type II (DMII). New and relevant evidence has been received to warrant readjudicating the claim for service connection for peripheral neuropathy of the upper extremities. New and relevant evidence has been received to warrant readjudicating the claim for service connection for peripheral neuropathy of the lower extremities. New and relevant evidence has been received to warrant readjudicating the claim for service connection for ischemic heart disease (IHD). Entitlement to service connection for DMII is denied. Entitlement to service connection for peripheral neuropathy of the upper extremities is denied. Entitlement to service connection for peripheral neuropathy of the lower extremities is denied. REMANDED Entitlement to service connection for IHD is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for DMII was previously considered and denied in a January 2003 rating decision. 2. The Veteran's claim for service connection for IHD was previously considered and denied in a January 2012 rating decision. 3. The Veteran's claims for service connection for peripheral neuropathy of his upper and lower extremities were previously considered and denied in a July 2012 rating decision. 4. Additional evidence received since those January 2003, January 2012, and July 2012 rating decisions tends to prove or disprove matters in issue concerning these claims. 5. But still, the preponderance of the evidence of record is against finding that the Veteran has had DMII or peripheral neuropathy of his upper or lower extremities at any time since filing these claims or proximate to that. CONCLUSIONS OF LAW 1. The January 2003, January 2012, and July 2012 rating decisions previously considering and denying the claims for service connection for DMII, IHD, and for peripheral neuropathy of the upper and lower extremities are final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. But there is new and relevant evidence since those decisions to warrant readjudicating these claims. 38 C.F.R. § 3.2501. 3. However, the criteria still are not met for entitlement to service connection for DMII and for peripheral neuropathy of the upper and lower extremities. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 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 April 1961 to April 1964 and from April 1965 to May 1968. This appeal to the Board of Veterans' Appeals (Board) is from an August 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review option. Therefore, in deciding this appeal, the Board may only consider the evidence of record at the time of the RO (Agency of Original Jurisdiction (AOJ)) decision that he has appealed. See 38 C.F.R. § 20.301. It is permissible, however, to first correct pre-decisional, duty-to-assist errors, and this is what the Board is doing in remanding the claim for service connection for IHD. But the Board instead is going ahead and deciding all the remaining claims for service connection for DMII and for peripheral neuropathy of the upper and lower extremities. New and Relevant Evidence 1. New and relevant evidence has been received to warrant readjudicating the claims for service connection for DMII, IHD, and for peripheral neuropathy of the upper and lower extremities The Veteran's claim for service connection for DMII was previously considered and denied by the RO (AOJ) in a March 1991 rating decision. The Veteran timely appealed that decision but, ultimately, an April 1996 Board decision also denied the claim because he did not have a diagnosis of DMII, i.e., proof he had this claimed disease. He was duly notified of that decision, and his rights to appeal it were explained. But he did not then appeal that decision to the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. A January 2003 rating decision again denied this claim because the Veteran still did not have the requisite diagnosis of DMII. The RO notified him of that decision and of his appellate rights. He did not appeal that decision, nor was any new and material evidence actually or constructively received within a year following notification of that decision; therefore, that decision also became final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. A January 2012 rating decision denied the Veteran's claim for service connection for IHD for the same reason that being there was no showing that he had a diagnosis of this disease. Consequently, absent the required proof he had IHD, it could not be presumptively related to his service in Vietnam and any presumed exposure to herbicides (including the dioxin in Agent Orange) while there. There also necessarily could not be any direct correlation, either. The RO duly notified him of that decision and of his appellate rights. He did not appeal the decision, however, nor was any new and material evidence actually or constructively received within a year following notification of that decision; therefore, that decision also became final and binding on him based on the evidence then of record. Id. A July 2012 rating decision later that same year additionally denied the Veteran's claims for service connection for peripheral neuropathy of his upper and lower extremities again, for the same reason, because there was no showing that he had the required diagnosis of this disease. Consequently, absent the required proof he had this disease, it could not be presumptively related to his service in Vietnam or directly related, either. The RO again duly notified him of its decision and of his appellate rights. He did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following notification of the decision; therefore, the decision became final and binding. Id. Because these claims arose due to VA's August 2021 special review of this file based on Nehmer, this appeal falls under the Appeals Modernization Act (AMA), rather than the prior legacy appeals system. Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); see also Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846 (2007) (Nehmer IV). As such, the standard for reopening and readjudicating these claims is new and relevant evidence rather than new and material evidence. 38 C.F.R. §§ 3.2501(a)(1), 19.2. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence is evidence that "tends to prove or disprove a matter in issue." 38 C.F.R. § 3.2501. As the statutory definition of "relevant" does not require that the evidence relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, "new and relevant" evidence is a lower standard than the previous "new and material" evidence standard. Since the January 2003, January 2012, and July 2012 rating decisions, the Veteran has continued to seek treatment from VA, and these records have been obtained and associated with his claims file so they may be considered. These updated VA treatment records are both new and relevant to the Veteran's claims for service connection for DMII, IHD, and peripheral neuropathy of his upper and lower extremities which are all predicated on his presumed exposure to herbicide agents during his service in Vietnam. Therefore, readjudication of these claims is warranted. Service Connection 2. Entitlement to service connection for DMII and peripheral neuropathy of the upper and lower extremities The Veteran asserts that he has DMII and associated peripheral neuropathy of his upper and lower extremities as a result of his conceded exposure to herbicides, including the dioxin in Agent Orange, while serving in Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (Vietnam era) will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore (now, as far away as 12-nautical miles) and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The August 2021 rating decision precipitating this appeal included the favorable finding that the Veteran has conceded exposure to herbicides in Vietnam. The Board is bound by this favorable finding. See 38 C.F.R. § 3.104(c). Pursuant to the authority granted by the Herbicide Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, early-onset peripheral neuropathy, prostate cancer, cancers of the lung, cancers of the bladder, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, parkinsonism, ischemic heart disease (IHD), B-cell leukemias such as hairy cell leukemia, and hypothyroidism. See 38 C.F.R. § 3.309(e). Importantly, the diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA regulations specify that the last date on which a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). That said, if the Veteran does not have a condition presumptively associated with exposure to Agent Orange, he still may establish entitlement to service connection by showing the condition is the direct result of such exposure. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). Here, though, while the Veteran has conceded exposure to herbicides based on his service in Vietnam, the evidence of record does not support finding that he has the required diagnoses of DMII and peripheral neuropathy of his upper and lower extremities. Moreover, he has not had these required diagnoses at any point during the pendency of these claims or proximate to that. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, there necessarily is no current disability owing to these conditions to, in turn, associate with that presumed exposure to Agent Orange in Vietnam again, even accepting that it occurred. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim because, for all intents and purposes, there is no present-day disability to relate or attribute to the Veteran's service). In August 2021, prior to the issuance of the rating decision on appeal, the Veteran's VA treatment records through August 12, 2021 were associated with his claims file. Importantly, an August 11, 2021 VA treatment record includes his medical history, showing diagnoses of a cerebrovascular accident (stroke) with consequent right-side hemiparesis in May 2021, neurogenic orthostatic hypotension, hypertension, aflutter/afib (atrial fibrillation), syncopy, metabolic encephalopathy, chronic low back pain, lumbar stenosis, status post L4-L5 decompression and laminectomy, and posttraumatic stress disorder (PTSD). There conversely is no indication that he has any history or current diagnosis of DMII or peripheral neuropathy, early onset or otherwise. A current disability means a disability shown by competent and credible evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Concerning the Veteran's claim for DMII, while treatment records show intermittent elevated glucose readings, they do not show any diagnosis of DMII, including in his most recent VA treatment records from August 2021. Further, the treatment records associated with the claims file do not show that he is seeking any treatment for DMII. An intermittent elevated glucose level that is not formally diagnosed as DMII does not constitute a current disability of DMII. Moreover, because the Veteran elected the "direct review" option, only the evidence of record when the RO decided his claim may be considered that is, absent any pre-decisional, duty-to-assist error, which there is none. So, in effect, the record on appeal is what it is. Similarly, the claims file does not contain any probative evidence that the Veteran has any diagnosis or symptoms of peripheral neuropathy of his lower extremities, including early onset. Because there is no probative evidence indicating the Veteran has DMII or peripheral neuropathy of his upper and lower extremities, no VA examination and/or medical opinion is required concerning these claims in this circumstance. McLendon v. Nicholson, 20 Vet. App. 70 (2006). Generalized lay allegations, such as the Veteran's general claims of entitlement to service connection for DMII and peripheral neuropathy of his upper and lower extremities, merely by listing them on his application for compensation are insufficient to meet the McLendon standards, even though supporting medical evidence is not necessarily required. See Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). In claims for service connection, VA must provide a medical examination for a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon, 20 Vet. App. at 81-82. Here, though, as discussed, there is no competent evidence of a current disability; neither DMII nor peripheral neuropathy of the upper or lower extremities has been diagnosed, and there is no competent evidence of persistent or recurrent symptoms of these disabilities either to, in turn, warrant having the Veteran examined for medical opinions regarding conditions that, for all intents and purposes, have not first been shown to even exist. While the Veteran believes he has current diagnoses of DMII and peripheral neuropathy of his upper and lower extremities, he is not competent to diagnose these conditions or determine what symptoms are ascribed or attributable to them. These issues are medically complex, not merely simple, as they require specialized medical education and the ability to interpret the results of complicated diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The question of whether lay versus medical evidence is needed to substantiate a claim is a case-by-case determination and dependent on whether the condition being claimed is medically complex versus simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence of record, including his VA treatment records that do not mention any diagnosis of DMII or peripheral neuropathy of the upper or lower extremities. Thus, as the preponderance of the evidence is against these claims for service connection, the benefit-of-the-doubt doctrine is not applicable, and these claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for IHD is remanded. Unlike those prior claims, as already mentioned, the August 11, 2021 VA treatment record indicates the Veteran's medical history includes "aflutter/afib (atrial fibrillation)." He therefore at least has shown that he has a heart disability other than his already determined to be service-connected hypertension, so he should have been afforded a VA examination to determine whether he has a heart disability, including IHD, because of his service. Therefore, to correct this pre-decisional, duty-to-assist error, the Board is obtaining this needed medical comment before deciding the appeal of this claim. According, this claim is REMANDED for the following action: Schedule the Veteran for a VA examination for his claimed IHD. The examiner is asked to first clarify whether the Veteran has IHD. If he does, then it is presumptively associated with his conceded exposure to Agent Orange in Vietnam. If he has some other heart disability, also indicate whether it is as likely as not related or attributable to his service including to his presumed exposure to Agent Orange in Vietnam (even if not presumptively associated). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.