Citation Nr: 21006667 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-30 245 DATE: February 4, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure, is denied. REMANDED Entitlement to a compensable rating for malaria is remanded. Entitlement to service connection for chronic low back disorder, diagnosed as spondylolisthesis, disc degeneration (L4-L5 and L5-S1 levels) and osteoporosis, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran does not have a confirmed diagnosis of diabetes mellitus, type II. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1964 to October 1968, including service in the Republic of Vietnam from October 1967 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) from respective rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2018, the Veteran testified regarding these issues at a Board hearing conducted before the undersigned Veterans Law Judge, which were all subsequently remanded for further development by the Board in August 2018. A transcript of that hearing is of record. These matters were again remanded, in October 2020, for additional VA examinations and opinions. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As to the second and third criteria requiring proof of in-service incurrence and medical nexus, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore 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). VA has interpreted the term "service in Vietnam" and related regulations to mean that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict to be found presumptively exposed to herbicides. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Additionally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation; without a current disability, service connection is not warranted. 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure. The Veteran contends he is entitled to service connection for diabetes mellitus, type II, but did not specifically articulate his basis for his service connection claim. See, March 2014 VA 21-526EZ, Fully Developed Claim (Compensation). However, since the record reflects that he served in the Republic of Vietnam during the period starting from October 1967 to October 1968, he is presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. Nonetheless, for the Veteran to have a valid claim for service connection for diabetes mellitus, type II, he must have a current diagnosis for his claimed disability, as without a current disability, service connection is not warranted. 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Available service treatment records (STRs) are silent for a diagnosis of diabetes mellitus, or the treatment of complaints that can be construed as indicative of signs of a diabetic condition. In his appeal of the denial of his claim by the RO in June 2015, the Veteran, through his representative, asserts that he has a history of high blood glucose, supported by private and VA medical treatment records. Yet, the evidence of record reflects no diagnosis of diabetes mellitus, type II or that diabetes mellitus, type II, is listed in any problem lists contained in the Veteran’s VA medical records. In fact, a February 2018 VA medical record (received 6/21/18, page 53 of 222) indicates a “history of pre-diabetes resolved,” and a May 2017 VA medical record (received 6/21/18, page 124 of 222) indicates “no diabetes.” There was, however, an entry of a March 2011 120 glucose reading that was characterized as “abnormal” and it was not clear from the evidence of record whether the VA medical providers had access to the March 2011 private medical record indicating this “abnormal” glucose reading. The Board notes that during the Veteran’s first afforded VA examination in November 2019, the VA examiner relied on two tests: a 7/24/09 A1c reading of 6.1 and a 11/04/19 fasting plasma glucose of 112, but did not consider the March 2011 120 glucose reading, which was the basis for the Board’s October 2020 remand. Specifically, an examiner was to consider this reading before making a diagnostic finding. Following the Board’s remand in October 2020, a VA examiner reviewed the Veteran’s records in November 2020 and determined that the Veteran does not have a current diagnosis of diabetes mellitus, type II, even when taking into consideration the March 22, 2011 abnormal glucose reading of 120. The examiner reported that the Veteran never had a hemoglobin A1c greater than 6.5 and over the lifetime of the medical evidence, he had 2 fasting blood glucose levels over 126, one in 2014 and one in 2016 and that subsequent test results have not exceeded 126. The examiner further noted that hemoglobin A1c provides more useful information about average blood glucose levels and that those levels never exceeded 6.5. The examiner concluded that, in assessing the totality of the evidence of record, the Veteran has never demonstrated significant elevated and consistently elevated fasting blood glucose levels and/or hemoglobin A1c levels to support a diagnosis of type II diabetes mellitus. The Board finds this November 2020 VA examiner’s opinion is in substantial compliance with its October 2020 remand directives, in that it includes a thorough and well-reasoned explanation in support of its rationale; thus, the Board assigns it a high probative value. Further, although VAMC treatment records for the period April 2003 through June 2014 indicate that the Veteran may have an increased risk for type II diabetes, there was no diagnosis or prescribed medications for treatment for type II diabetes. Overall, after careful review of the record, the Board finds that the evidence simply does not show that the Veteran has been diagnosed with diabetes mellitus, type II, during the period on appeal. Post-service medical treatment records indicate the Veteran may have been prediabetic, but he did not meet the criteria for a diagnosis of diabetes mellitus, type II. Consequently, based on the evidence of record, especially in light of the November 2020 VA examiner’s report, the Board concludes that the Veteran does not have a current diagnosis of diabetes mellitus type II and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Lacking a current diagnosis, the cornerstone element of service connection has not been met, and service connection for diabetes mellitus type II cannot be established on any basis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that a current diagnosis is the cornerstone of a claim for service connection). Accordingly, the Veteran’s appeal for entitlement to service connection for diabetes mellitus, type II, is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for malaria is remanded. During his August 2018 Board Hearing, the Veteran testified that although his service-connected malaria disability (diagnosed while in service and granted at 10 percent in October 1968) has been deemed resolved post discharge in October 1969, that from time to time he experiences severe chills, which he believes is an indication of relapse of his malaria disability, and as such is a basis for seeking a higher compensable rating. See, May 2018 Hearing Transcript. In his August 2014 VA Form 9, the Veteran also reported that "he continues to have periodic flare-ups of malaria,” specifically requesting that his disability rating be restored back to at least 10 percent. During the Veteran’s VA examination for malaria in July 2020, the examiner reported that the Veteran’s malaria was resolved, appearing to solely rely on a prior November 2010 specimen report which reflected no relapses, indicating that the Veteran was asymptomatic. Because the Veteran’s self-described flare-ups (severe chills), which he asserts is an indication of a relapse of malaria was not addressed during the July 2020 examination, the Board remanded this matter in October 2020 to obtain an opinion in order to determine if the Veteran has a current diagnosis of malaria or residuals from his in-service malaria diagnosis. The November 2020 VA examiner’s assessment is that while there is no documentation of recurrence or relapse in any of the Veteran’s medical records, the Veteran’s reported symptoms of occasional chills, without another explanation, may represent a relapse, as this is a positive indication of such, citing that malaria may relapse and be associated with symptoms such as chills. The examiner also reported that even though there was never any additional laboratory testing confirming that the Veteran’s chills were due to a relapse of his malaria, then it is at least as likely as not that the Veteran’s reported chills represent relapses in his service-related malaria. It is unclear, however, whether active malaria is in fact present when such has apparently not been confirmed by the presence of malarial parasites in blood smears. It is also not clear whether there are any residuals of malaria such as liver or spleen damage that could be causing the Veteran’s chills and/or other symptoms. The Board finds this November 2020 VA opinion lacks substantial compliance of the Board’s October remand directive, and unfortunately must remand again for a complaint opinion before this matter can be adjudicated on its merits. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in its prior October 2020 remand order, the Board requested that given the complexity of the subject matter of this issue, that the requested opinion be provided “by an appropriate specialist in infectious diseases pursuant to 38 U.S.C. § 5109(a) and 38C.F.R. §3.328.” However, this remand directive was not complied with, as the opinion was provided by a general physician, and the Board does not find the explanation for doing so (an infectious disease specialist was “not available”) adequate, especially in light of the fact that no clear diagnostic opinion was provided. The Board notes that the rating criteria for rating infectious diseases DC 6304 changed, effective August 30, 1996, and consequently a 10 percent rating for malaria alone is no longer recognized. There must now be evidence showing residuals affecting other body systems, such as liver or spleen damage. A 100 percent rating for malaria alone is assigned for active disease and relapses of malaria must be confirmed by the presence of malarial parasites in blood smears. Under the current General Rating Formula for Infectious Diseases, a 100 percent rating is provided for active disease (malaria) and 0 percent, if inactive. Given these facts, the Board finds that it is necessary to make further efforts through an examination by an appropriate specialist to objectively determine whether the Veteran’s reported chills and other findings reflect that he has a current relapse of active malaria or residuals of malaria affecting the liver/spleen or other specific body systems. Unfortunately, as such, this issue must once again be remanded. 2. Entitlement to service connection for chronic low back disorder, diagnosed as spondylolisthesis, disc degeneration (L4-L5 and L5-S1 levels) and osteoporosis is remanded. The Veteran contends that his current low back disorder had its onset during his active duty service as a combat Veteran, and that his disability has continued since then to the present. See, May 2018 Hearing Transcript. In its prior remand the Board found the VA examiner’s January 2020 rationale for a negative nexus opinion for direct service connection between the Veteran’s low back disability and his military service was inadequate because it was primarily based on the absence of documentation in the record, as it did not appear to take into account the Veteran’s reports of symptoms and history. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Most importantly, the examiner failed to specifically comment on the etiology of the onset of the Veteran’s October 1987 spondylolisthesis diagnosis, which is also consistent with his current primary diagnosis associated with his chronic low back disability. In its November 2020 opinion, the examiner opined that it is less likely than not that the Veteran’s claimed back disability, to include spondylolisthesis, was incurred in service, based on reference in his prior records that the Veteran said he never hurt his back in active duty military and that his back injury occurred as a result of a workplace injury in the 1970s. Further, that the service treatment records are silent with regards to treatment or a diagnosis for a back condition while in active duty or within a year of separation. Once again, this examiner is basing his opinion primarily on a lack of in-service documentation of a diagnosis and treatment for the Veteran’s back disability, without providing a medical reason or analysis as to why the Veteran’s October 1987 post-service spondylolisthesis diagnosis, which is also consistent with his current primary diagnosis associated with his chronic low back disability, could not have started in service, as was specifically requested in the Board’s October 2020 remand. As such, there was a lack of substantial compliance with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the Veteran previously testified during his May 2018 Board hearing that he believed he initially hurt his back in service during his combat mission in Vietnam, jumping in and out of helicopters, and although he recalled subsequently seeking medical help once (he could not recall if this was while he was in service), he learned to just continue “to live with it.” Consequently, another opinion that thoroughly explains a medical reason why the Veteran’s current back disability, including the Veteran’s October 1987 spondylolisthesis diagnosis, could not have resulted from his military service, is necessary before the Board can adjudicate this matter on its merits. 3. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Board finds this claim is inextricably intertwined with the Veteran’s above claims that are also being remanded. Accordingly, the Board will defer any action with respect to the Veteran’s claim for TDIU until the completion of the development of his other remanded claims. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Based on the information obtained in the most recent VA examination, schedule the Veteran with an infectious disease specialist to objectively determine whether the Veteran’s reported chills and other findings reflect that he has a current relapse of active malaria or residuals of malaria affecting the liver/spleen or other specific body systems. If an infectious diseases specialist is not available, a physician with documented experience in infectious diseases should conduct the examination, with supporting evidence of such expertise in or accompanying the examination report that reflects his/her medical background, credential qualifications and level of infectious diseases experience. All necessary studies and diagnostic tests (such as by culture, histopathology, or other diagnostic laboratory testing) must be conducted. The Veteran’s claims file should be made available to and be reviewed by the specialist before rendering the requested opinion. The specialist must then opine with regards to the following: a) State whether the Veteran has a current relapse of active malaria as shown by his current symptoms of periodic chills and/or other evidence of active disease such as the presence of malarial parasites in blood smears. b) Further opine as to whether the Veteran has any residual of malaria involving the liver/spleen, or other body system that could be causing the Veteran’s chills and/or other current symptomatology. The specialist must clearly explain the medical basis for his/her opinion, citing to the results of diagnostic testing or supporting specific medical facts/data. With regards to any present residuals, the examiner must identify the Veteran’s body system that manifests such residual disability of malaria infection, such as liver/spleen damage, and central nervous system conditions. In rendering this opinion, the specialist is advised that the Veteran is considered competent to report his symptoms and history. Such reports, such as the Veteran’s self-described “periodic flare-ups of malaria,” including severe seasonal chills, must be acknowledged and considered in formulating any opinion. If the specialist rejects the Veteran’s reports, including his reports of “periodic flare-ups of malaria,” he or she must provide an explanation for such rejection. 2. In regard to the Veteran’s back disability claim, obtain an addendum opinion from the same examiner who provided the November 2020 opinion, for a thorough medical explanation in support of his negative nexus opinion. If unavailable, obtain from another appropriately qualified examiner. The examiner is specifically requested to provide a thorough medical explanation to support whether or not the Veteran’s current back disability, including the Veteran’s October 1987 spondylolisthesis diagnosis, could have resulted from his military service, to include the Veteran’s report of back strain/pain from jumping in or out of helicopters as part of his combat mission in Vietnam from October 1967 to October 1968. The examiner is advised that a lack of documented in-service complaints or diagnosis of back disability alone is not an adequate basis for a negative nexus opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). If it is the examiner’s opinion that the Veteran’s 1970 post-service back injury is the primary basis for the Veteran’s current back disability, the examiner is asked to clearly state, with supporting medical facts and analysis, why the nature of the Veteran’s current back disability is consistent with such a finding. In short, the examiner must provide a thorough medical explanation as to why more weight is given to the Veteran’s post-service 1970 back injury than any possible in-service etiology. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion. 3. After completing the above actions, the Agency of Jurisdiction (AOJ) should review the report(s) to ensure its compliance with the directives of this remand. If the report(s) is deficient in any manner, the AOJ must implement corrective procedures at once, and readjudicate these issues, if necessary, based on the entirety of the evidence. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.