Citation Nr: 21007557 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-00 185 DATE: February 10, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to service connection for a brain tumor (glioblastoma) is denied. REMANDED Whether new and material evidence has been submitted to reopen service connection for cholelithiasis is remanded. Whether new and material evidence has been submitted to reopen service connection for vision loss is remanded. Whether new and material evidence has been submitted to reopen service connection for posttraumatic stress disorder (PTSD) is remanded. Whether new and material evidence has been submitted to reopen service connection for a skin rash is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin and an oral glycemic agent during the period on appeal. 2. The Veteran had active service in the Republic of Vietnam and is presumed to have been exposed to an herbicide agent in service. 3. The Veteran’s diagnosed glioblastoma multiform is not a presumptive disease associated with exposure to an herbicide agent under 38 C.F.R. § 3.309(e) and his brain tumor is not shown to be related to exposure to an herbicide agent in service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. The criteria for service connection for glioblastoma have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died on September [REDACTED], 2009. The appellant filed her original claim for accrued benefits in November 2009. A July 2010 decision denied accrued benefits. In May 2013, the appellant filed a new claim for accrued benefits. Accrued benefits were denied in February 2014. In November 2018, the Board remanded the appeal for entitlement to accrued benefits for adjudication of an inferred claim for substitution, noting pending appeals for a higher rating for service-connected diabetes mellitus and for service connection for a brain tumor. The Veteran also had several claims pending, which had not yet been adjudicated. These were comprised of claims to reopen service connection for cholelithiasis, vision loss, PTSD, and a skin rash. In October 2019, the RO determined that the appellant met basic eligibility for substitution as the spouse of the Veteran, and substituted the appellant as the claimant in the Veteran’s appeal. The Board has, therefore, recharacterized the appeal for accrued benefits as an appeal based on substitution. 1. Entitlement to a higher initial rating in excess of 20 percent for diabetes mellitus The Veteran was assigned an initial 20 percent rating for diabetes mellitus effective November 26, 2008. He submitted an August 2009 statement requesting an increase in his disability compensation and expressing disagreement with the initial assigned rating. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran’s diabetes mellitus required only restricted diet and an oral glycemic agent and insulin. A December 2008 VA diabetes examination shows that the Veteran was treated with Lantus at bedtime and a sliding scale NovoLog insulin before each meal. The examiner stated that the Veteran did not have complications present due to diabetes mellitus. In addition, the Veteran does not assert, nor does the record show, that he has any complications of diabetes mellitus. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). The evidence of record, to include VA and private treatment records, do not identify any prescribed regulation of activities due to diabetes mellitus, nor has the appellant asserted such. The Veteran is competent to report having difficulties with pain, swelling, and poor sleep in an August 2009 statement. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, these symptoms were not shown by evidence of record to be due to complications of diabetes mellitus. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. 2. Entitlement to service connection for a brain tumor (glioblastoma) Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 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. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Pursuant to the authority granted by the Agent Orange 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, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson’s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309 (e). Effective on August 31, 2010, VA amended 38 C.F.R. § 3.309 (e) to add, in pertinent part, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina) to the list of diseases associated with exposure to certain herbicide agents. See 75 Fed. Reg. 53,202. 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 acute and subacute 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). The Veteran and the appellant asserted in an August 2009 and December 2015 statements that the Veteran’s brain tumor was related to Agent Orange exposure during his tour of duty in Vietnam. The appellant stated in a September 2019 statement that, from what she understood, the Veteran’s brain tumor was a muscle and, thus, was a soft tissue sarcoma. Private treatment records from McLeod Regional Medical Center show that a probable brain tumor was identified on MRI in November 2007. A December 2007 biopsy confirmed that the Veteran had an unresectable tumor, diagnosed as glioblastoma multiforme. Private treatment records and VA treatment records all show that the Veteran’s brain tumor was diagnosed as glioblastoma multiforme, and not as a soft tissue sarcoma. Glioblastoma multiforme is defined as a malignant type of astrocytoma, usually classified as Grade IV, one of the most common primary tumors of the brain. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 776 (30nd ed. 2003). An astrocytoma is a tumor composed of astrocytes, the most common type of primary brain tumor. Id. At 169. Conversely, a soft tissue sarcoma is defined as a malignant tumor derived from extraskeletal connective tissue including fibrous, fat, smooth muscle, nerve, vascular and synovial tissue. Id at 1657. Here, records from McLeod Regional Medical Center dated in December 2007 show that an MRI of the Veteran’s brain showed a mass in the right occipital region. The Veteran underwent a stereotactic biopsy on December 2007 which showed a high-grade glioma, most compatible with glioblastoma multiforme. He was diagnosed with glioblastoma multiforme. Despite the appellant’s assertions, she is not competent to diagnose the Veteran’s glioblastoma multiforme as a soft tissue sarcoma, and her lay assertion is not probative evidence of the presence of any soft tissue sarcoma given medical biopsy evidence showing that the Veteran had a glioblastoma multiforme. Glioblastoma is not included in the indicated diseases associated with exposure to an herbicide agent and the applicable regulations at 38 C.F.R. § 3.309 (e). As such, presumptive service connection is not warranted. See 38 C.F.R. § 3.309 (e). Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The weight of the evidence shows that the Veteran’s brain tumor was not incurred in service, symptoms of a brain tumor were not chronic in service and continuous since service separation, and a brain tumor did not manifest to a compensable degree within one year of service separation. Service treatment records do not identify any symptoms related to a brain tumor in service, and a brain tumor was not shown to have been diagnosed within one year of service separation. VA and private medical records show that the Veteran was first evaluated for and diagnosed with a brain tumor in 2007, decades after service separation. A brain tumor is not shown to be related to service, or to herbicide exposure in service. While the Veteran alleged that his brain tumor is related to Agent Orange exposure in service, the appellant has not submitted evidence outside of lay assertions which tend to link his diagnosed hypertension to Agent Orange exposure. The Board notes that while the Veteran did submit a March 2009 statement indicating that service-connected diabetes was steroid induced, and was due to treatment to glioblastoma, this opinion does not tend to indicate that glioblastoma was caused or aggravated by service-connected diabetes mellitus. Thus, the weight of the evidence is against finding that a brain tumor, glioblastoma multiforme, is related to service or Agent Orange exposure in service REASONS FOR REMAND Whether new and material evidence has been submitted to reopen service connection for cholelithiasis, vision loss, PTSD, and a skin rash is remanded. Service connection for cholelithiasis, vision loss, PTSD, and a skin rash was denied in an unappealed July 2008 rating decision. The Veteran submitted an August 2009 statement asking for reconsideration of those claims. In September 2009, prior to his death, the AOJ issued a letter informing the Veteran that new and material evidence was required to reopen the previously denied claim. The Board finds that a remand is necessary for initial adjudication of the August 2009 claim to reopen service connection for cholelithiasis, vision loss, PTSD, and a skin rash, to afford the appellant the opportunity, as the substituted appellant, to appeal that decision. (Continued on the next page)   The matters are REMANDED for the following action: Adjudicate the issues of whether new and material evidence has been submitted to reopen service connection for cholelithiasis, vision loss, PTSD, and a skin rash and afford the appellant the opportunity to appeal that decision based on her status as the substituted appellant. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.