Citation Nr: 21010789 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-20 995 DATE: February 25, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is denied. REMANDED Entitlement to service connection for ulcers is remanded. Entitlement to service connection for edema is remanded. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during active duty service. 2. Diabetes mellitus, type II was first demonstrated years after service and is not etiologically related to a disease or injury in service, to include exposure to herbicide agents. 3. Peripheral neuropathy of the bilateral lower extremities is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 4. Peripheral neuropathy of the bilateral upper extremities is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to service connection for bilateral upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1963 to December 1966. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in February 2019 when they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In June 2017, a hearing was held before a Veterans Law Judge who is no longer employed by the Board. In January 2021, the Veteran was notified that the Veterans Law Judge who conducted his hearing was no longer employed by the Board, and he was asked to respond within 30 days indicating whether he would like a new hearing. VA has received no response, so the Board will proceed with consideration of the Veteran’s claims. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Service Connection Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In addition, certain chronic diseases, such as diabetes mellitus, type II, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, service connection on the basis of continuity of symptomatology may be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran’s claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. 1. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide agent exposure The Veteran contends that service connection is warranted for diabetes mellitus, type II, as it was due to exposure to herbicide agents during active duty service. In the alternative, he also reports that stomach symptoms that he experienced during service were diabetes symptoms. VA regulations provide for a presumption of service connection for some diseases associated with exposure to certain herbicide agents, including diabetes mellitus, type II. 38 C.F.R. §§ 3.307, 3.309. However, the presumptions are only applicable to veterans who served in the Republic of Vietnam from January 1962 to May 1975 or operated in or near the Korean Demilitarized Zone (DMZ) from April 1968 to August 1971. 38 C.F.R. § 3.307 (a)(6)(iii) and (iv). The Veteran’s personnel records reflect that he served in Korea from May 5, 1964 to May 14, 1965. The Veteran does not allege that he was present in Vietnam or Korea during the pertinent time periods. See Administrative Decision, received August 2014. Thus, the Veteran is not presumed to have been exposed to herbicide agents during his active duty service, and service connection on a presumptive basis under 38 C.F.R. § 3.309(e) is not warranted. Service connection is also not warranted on a presumptive basis as a chronic disability, as diabetes mellitus, type II did not manifest to a compensable degree within one year of separation from service. The clinical records in the claims file dated within the year of the Veteran’s separation from service are silent for any symptoms or findings of diabetes. Additionally, there are no subsequent records which suggest that diabetes manifested to a compensable degree within the first year after service discharge. Thus, service connection is not warranted on a presumptive basis as a chronic disability under 38 C.F.R. § 3.309(a). The Veterans post-service treatment records show he was diagnosed with diabetes mellitus, type II, in June 2000, approximately 35 years after service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally, the Board finds that there is no evidence of record, lay or medical, suggesting that the Veteran’s diabetes is causally related to service. While the Veteran contends that he experienced stomach symptoms during service which were inservice were a symptom of his later diagnosed diabetes, the December 2019 VA examiner found otherwise. In providing a negative opinion, the examiner noted that the Veteran was diagnosed with a stomach ulcer, but that is it not a symptom of diabetes and that the Veteran’s urine glucose reports were negative during service. In this regard, the Veteran has not provided a credible allegation as to how his diabetes could be related to service given that it did not have an onset in service and he was not exposed to an herbicide agent. The Veteran has not been shown to have the experience, training, or education necessary to render an etiology opinion as to the claimed disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the Veteran is not presumed to have been exposed to herbicide agents during service, did not have a diagnosis of diabetes during service or within one year of separation from service, and there is no evidence linking the Veteran’s diabetes to his active duty service. Based on the foregoing, service connection for diabetes is not warranted. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II 3. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II The Veteran contends that his bilateral upper and lower peripheral neuropathy are related to his diabetes mellitus, type II. At his Board hearing, he attested to experiencing peripheral neuropathy symptoms in approximately 2002, after his diabetes was diagnosed in 2000. The record establishes that the Veteran has current diagnoses of peripheral neuropathy of the right and left upper and lower extremities, as shown in the December 2019 VA examination. Thus, current disabilities of peripheral neuropathy of the right and left upper and lower extremities are demonstrated. However, the record does not establish in-service incurrence of peripheral neuropathy of the right and left upper and lower extremities. Service treatment records are negative for any indication of peripheral neuropathy in the right or left upper or lower extremities. A December 1966 separation examination reflects that the upper and lower extremities were normal. The Veteran has not provided any lay statements suggesting that he experienced peripheral neuropathy symptoms during service or continuously since service. In fact, he has not provided any statements whatsoever linking his current peripheral neuropathy directly to his active duty service. Additionally, there is no competent and credible evidence linking the Veteran’s current peripheral neuropathy to any incident of service. Therefore, in-service incurrence of peripheral neuropathy of the upper and lower extremities is not established. Accordingly, service connection for peripheral neuropathy of the upper and lower extremities is not warranted on a direct basis. 38 U.S.C. § 5107(b). Service connection may also be granted on a secondary basis, but the preponderance of the evidence is against finding that the Veteran’s peripheral neuropathy of the upper and lower extremities is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen, 7 Vet. App. 439; 38 C.F.R. § 3.310(a). A December 2019 VA opinion reflects that the Veteran’s peripheral neuropathy of the upper and lower extremities was caused by his diabetes mellitus, type II. However, service connection for diabetes mellitus, type II, has been denied. 38 C.F.R. § 3.310; see Allen, 7 Vet. App. 439 (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Thus, service connection for peripheral neuropathy of the upper and lower extremities may not be granted on a secondary basis. REASONS FOR REMAND 1. Entitlement to service connection for ulcers is remanded. 2. Entitlement to service connection for edema is remanded. The Board finds that additional development is needed prior to adjudication to the issues of entitlement to service connection for ulcers and entitlement to service connection for edema. The record shows the Veteran has been diagnosed with an ulcer and edema for which he seeks service connection. The Veteran asserts that his claimed disabilities were caused by his diabetes mellitus, type II. Additionally, at his Board hearing, the Veteran attested to experiencing symptoms during active duty service. The Veteran’s service treatment records reflect complaints of and treatment for stomach symptoms and foot pain. Accordingly, the issues will be considered on a direct service connection basis. There is insufficient evidence, however, for the Board to render a determination on his claims, as the Veteran has not been afforded a VA examination. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record, 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. Based upon the Veteran’s lay testimony and the evidence in the service treatment records, remand is warranted to obtain a VA examination and opinion to determine the nature and etiology of the Veteran’s ulcer and edema conditions. The matters are REMANDED for the following action: Provide the Veteran with a VA examination, conducted by an appropriate physician, to determine the nature and etiology of the Veteran’s ulcer and edema. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that any ulcer or edema currently diagnosed, or diagnosed during the appeal, even if currently resolved, was caused by or incurred as a result of the Veteran’s active duty service. (Continued on the next page)   A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran’s lay statements and testimony regarding in-service and post-service symptomatology. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed 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.