Citation Nr: 21005913 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-28 872A DATE: February 2, 2021 ORDER A rating in excess of 10 percent for diabetes mellitus (DM) is denied. Service connection for erectile dysfunction (ED) is denied. Service connection for a cardiovascular (CV) disorder is denied. Service connection for soft tissue sarcoma is dismissed. Service connection for respiratory cancer is dismissed. Service connection for prostate cancer is dismissed. Service connection for multiple melanoma is dismissed. REMANDED Entitlement to service connection for peripheral neuropathy (PN). FINDINGS OF FACT 1. The Veteran had active duty from July 1966 to January 1974, to include service in the Republic of Vietnam. 2. During an August 2020 hearing before the Board, the Veteran indicated his intent to withdraw his claims for service connection for soft tissue sarcoma, respiratory cancer, prostate cancer, and multiple melanoma. 3. DM is controlled by a restricted diet; neither insulin nor an oral hypoglycemic agent have been prescribed. 4. A diagnosis of ED has not been shown. 5. A CV disorder was not shown in service and is not causally related to service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for DM have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2020). 2. ED was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 3. A CV disorder was not incurred in service nor is it presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 4. The claim for service connection for soft tissue sarcoma is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2020). 5. The claim for service connection for respiratory cancer is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2020). 6. The claim for service connection for prostate cancer is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2020). 7. The claim for service connection for multiple melanoma is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In connection with this appeal, the Veteran testified at an August 2020 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Withdrawals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the August 2020 hearing, the Veteran testified before the undersigned that he sought to withdraw the claims for service connection for soft tissue sarcoma, respiratory cancer, prostate cancer and multiple melanoma. He was informed that his appeals were being discontinued and no further action would be taken. No further correspondence was received from the Veteran asserting that he did not understand the consequences of the withdraw. Based on the above, the Veteran expressed his intent to withdraw the claims in August 2020 and was adequately informed by VA in understandable terms the consequences of the withdraw. As such, the claims are withdrawn. Increased Rating for DM Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s DM is rated under DC 7913, which provides a 10 percent rating where DM is manageable by only a restricted diet. A 20 percent rating requires a need for insulin or an oral hypoglycemic agent, and a restricted diet. Although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). In this case, the evidence reflects that the Veteran’s DM requires a restricted diet. The dispositive question is therefore whether it also requires insulin or an oral hypoglycemic agent. For the following reasons, it does not. In a February 2016 Disability Benefit Questionnaire (DBQ) submitted by the Veteran, the clinician indicated that that DM was managed only by a restricted diet. The clinician also indicated that regulation of activities was part of DM management, and expanded by stating that the Veteran was on a 1600 calorie diet, avoiding concentrated sweets and carbohydrates and exercised daily for 40 minutes. A private treatment record dated February 2016 reflects a diagnosis of DM. Furthermore, while his medications are frequently published in his VA treatment records, there have been no indication that he was prescribed insulin or an oral hypoglycemic agent. Based on the above, the medical evidence does not indicate that DM is managed by insulin or an oral hypoglycemic agent. Specifically, the February 2016 DBQ examiner noted that only a restricted diet was required. The Board acknowledges the notation of regulation of activities by the February 2016 examiner; however, within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion. In this case, the clinician explained that “regulation of activities” as he intended it meant that the Veteran was on a 1600 calorie diet, avoiding concentrated sweets and carbohydrates and exercised daily for 40 minutes. There remains no indication from the record that a regulation of activities, as within the intended meaning of DC 7913, was required for DM management or treatment. Further, the evidence corroborates this finding as the medical records consistently reflect that DM was treated by a restricted diet only. Importantly, at no point during the appellate period did an examiner or treating health care professional indicate that the Veteran’s DM required insulin, an oral hypoglycemic agent, or regulation of activities within the meaning of the diagnostic code. As the only medical opinion to specifically address the question indicates that the Veteran controlled his DM by a restricted diet, and this opinion is supported by the contemporaneous medical evidence, the weight of the evidence is against a finding that DM requires anything besides a restricted diet for management. The Board has also considered the Veteran’s lay statements that DM is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s DM has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the clinician has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Next, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran is exposed to a herbicide agent (to include Agent Orange) during active service, certain 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, including IHD (including, but not limited to, acute, subacute, and old myocardial infractions and atherosclerotic cardiovascular disease including CAD (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina). The term IHD 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 IHD. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Erectile Dysfunction The medical evidence does not show a current diagnosis of ED. While clinical records and VA examinations were reviewed, the medical evidence does not support a finding of ED. As such, service connection is not warranted without a current disability. Cardiovascular Disorder The Veteran claims that service connection is warranted for ischemic heart disease (IHD) due to exposure to herbicide agents during service. The record reflects that he served in country in Vietnam; therefore, herbicide agent exposure is conceded. As to a current diagnosis, private treatment records reflect diagnoses and treatment for an abnormal electrocardiogram (EKG), accelerated high blood pressure, angina, aortic valve disorder, blocked or narrowed carotid artery, chest pain, hypertension related heart disease without heart failure, and atherosclerosis of native arteries of the extremities. Therefore, a current disorder is shown. As to an in-service incurrence, the service treatment records (STRs) are negative for complaints of, treatment for, or a diagnosis of a CV disorder. In September 1969, the Veteran reported a history of diarrhea, chest pain, and weakness in his hands and knees. He had been prescribed pills for diarrhea and fungus and had not felt good since. The physical examination was within normal limits and the clinical impression was vague psychosomatic gastrointestinal complaints. An annual physical for flying class was undertaken in October 1971 and showed a normal clinical evaluation of the heart and vascular system. Although the Veteran reported pain or pressure in the chest in the Report of Medical History at the time of discharge, the clinical evaluation of the heart and vascular system were normal. There is no indication that the pain or pressure in the chest was cardiac in origin as no CV treatment or diagnosis were noted during service. Therefore, the medical evidence does not show an in-service incurrence of a chronic CV disorder. As to presumptive service connection based on herbicide exposure, the record does not reflect a current diagnosis of a presumptive CV disorder, to include IHD, CAD, or any other CV disorder for which presumptive service connection is warranted. As noted above, the Veteran has been diagnosed with an abnormal EKG, high blood pressure, angina, aortic valve disorder, a carotid artery disorder, chest pain, hypertension related heart disease without heart failure, and atherosclerosis of the extremities; however, none of these disorders are entitlement to presumptive service connection on the basis of herbicide exposure. The VA treatment records, and other private treatment records similarly do not reflect a diagnosis of IHD or CAD. Therefore, the medical evidence does not support the claim. Without a current diagnosis associated with herbicide exposure, the medical evidence does not support presumptive service connection. Further, no health professional has established a direct causation link between service and the Veteran’s current diagnoses. The Board has considered the Veteran and his wife’s lay statements and testimony that ED and a CV disorder began in service. While they are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses, they are not competent to offer etiologies of these disorders. Such competent evidence has been provided by the service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to their statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASON FOR REMAND With regard to peripheral neuropathy (PN), the Veteran has claimed that PN was caused by service. In the March 2016 notice of disagreement, he described the pain and numbness in his legs as a result of crashes and hard landings as a helicopter pilot. Alternatively, he suggests that service connection should be considered based on herbicide exposure and/or as secondary to service-connected DM. Private treatment records reflect a history of PN and a possible causal nexus to DM. Specifically, an October 2016 private treatment record shows “type 2 diabetes mellitus with diabetic autonomic polyneuropathy.” As such, a remand is warranted in order to consider whether PN is related to service or to service-connected DM. The matter is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record. 2. Obtain a medical regarding the nature and etiology of PN. The clinician is asked to review the claims file, including the STRs, post-service records, and October 2016 private treatment record. After a review of the record, the clinician is asked to address the following: • Is a diagnosis of PN shown? The clinician is asked to address the upper and lower extremities separately. • If PN is shown, is it at least as likely as not that PN had its onset during service or within one year after discharge from service. • Is it at least as likely as not that PN is related to in-service injury or disease, to include exposure to herbicide agents (exposure should be presumed). • Is it at least as likely as not that PN is (i) proximately due to service-connected DM and/or (ii) aggravated beyond its natural progression by DM. A thorough rationale is requested for all opinions rendered.   3. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.