Citation Nr: 21014349 Decision Date: 03/12/21 Archive Date: 03/11/21 DOCKET NO. 18-02 242 DATE: March 12, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for maculopathy, left eye (claimed as left eye macula hole) is denied. Entitlement to service connection for hepatic cysts is denied. Entitlement to service connection for right knee degenerative arthritis is denied. Entitlement to service connection for left knee degenerative arthritis is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides when he served in the Republic of Vietnam in March 1966, and the evidence is in equipoise as to whether the Veteran has a diagnosis of diabetes mellitus. 2. The probative evidence of record does not establish that the Veteran’s maculopathy, left eye, is etiologically related to service or a service-connected disability. 3. The probative evidence of record does not establish that the Veteran’s hepatic cysts are etiologically related to service or a service-connected disability. 4. The probative evidence of record does not establish that the Veteran’s right knee degenerative arthritis is etiologically related to service, or that it manifested within one year of separation. 5. The probative evidence of record does not establish that the Veteran’s left knee degenerative arthritis is etiologically related to service, or that it manifested within one year of separation. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for maculopathy, left eye, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for hepatic cysts are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for right knee degenerative arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for left knee degenerative arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from September 1964 to August 1966, to include service in the Republic of Vietnam. The Veteran testified at a hearing before the undersigned Veteran’s Law Judge (VLJ) in January 2021. A transcript of the hearing is associated with the record. At the hearing, the Veteran’s representative stated the following: “My conclusion is that [the Veteran] has provided sworn testimony to support his claims. As always, 50/50 should go to the Veteran. I think the diabetes is sound. And the other one[s] we’ll try to get nexus statements on. We don’t want to hold the case up. So, we don’t want anything remanded, per say. Or held up for a judgement. We want a swift judgement as soon as possible.” The Board has considered the Veteran’s desire to have a resolution to his claims. No additional evidence was submitted subsequent to the hearing. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, exposure to certain herbicide agents, including the one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975). 38 U.S.C. § 1116 (f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as diabetes mellitus, type II, shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus, type II The Veteran’s exposure to herbicide agents is presumed, based on personnel records that place him in Vietnam in March 1966. He contends that he has a diagnosis of diabetes mellitus, type II, that should be presumptively service-connected. Diabetes mellitus is a condition for which presumptive service connection is available due to exposure to herbicide agents. 38 C.F.R. § 3.309 (e). Turning to whether the Veteran has a current diagnosis of diabetes mellitus type II, the Veteran submitted a letter from his treating provider, Dr. F.R., who states that the Veteran has a confirmed diagnosis of diabetes mellitus given his lab results. See Medical Treatment Record - Non-Government Facility, received October 17, 2013. The Veteran attended a VA examination in August 2014. The clinician stated that she had reviewed the medical record, but that the Veteran did not have a diagnosis of diabetes mellitus, but rather “impaired fasting glucose.” In giving the Veteran the benefit of the doubt, the Board finds that the letter from Dr. F.R. establishes a diagnosis of diabetes mellitus. While the Veteran may be asymptomatic as established by VA medical records and does not seek treatment or carry a diagnosis of diabetes by the VA, Dr. F.R. has the knowledge and training to make such a diagnosis and his opinion deserves as much weight as the VA examiner. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the weight of the evidence is for the claim for service connection for diabetes mellitus, type II, based on exposure to herbicide agents. Accordingly, the claim is denied. The evidence is in equipoise and the benefit of the doubt inures to the Veteran’s benefit. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for maculopathy, left eye; and, 3. Entitlement to service connection for hepatic cysts The Veteran contends that these conditions are related to service due to herbicide agent exposure or are related to diabetes mellitus. The Veteran has current diagnoses of left eye maculopathy and hepatic cysts. Further, the Veteran was exposed to herbicide agents and is (as of this decision) service-connected for diabetes mellitus. The Veteran has presented no medical evidence that his conditions are caused or related to diabetes mellitus and the August 2014 VA examiner stated as such. Specifically, the examiner found that maculopathy is not caused by or related to diabetes, and there is no evidence of diabetic retinopathy. No opinion was rendered on hepatic cysts; however, the Board finds that none was necessary. VA has a duty to provide a medical examination when it is deemed necessary to make a decision on a claim if the evidence (including lay statements of the appellant) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of the disability; if the evidence indicates that his disability or symptoms may be associated with the appellant's service; and there is not sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, there is no indication that hepatic cysts are related to service. Turning to whether the Veteran’s conditions are etiologically related to exposure to herbicide agents, in the Veteran’s words: he could think of no other reason why he developed these conditions. However, neither condition is listed as a disease (unlike diabetes mellitus) that shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). The Veteran has presented no other medical evidence in support of his position that the conditions are related to herbicide agents. The Board has considered the Veteran’s lay opinion that his left eye maculopathy and hepatic cysts are related to service or his diabetes mellitus. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report his symptoms. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the question of the potential relationship between the Veteran’s left eye maculopathy and hepatic cysts and service and diabetes mellitus to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a diagnosis or connection between the two. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Veteran has been clear in his assertions that he did not have these conditions during service or think that they are related to service in any other way. The medical evidence does not link these conditions to service, or to a service-connected disability. As such, there is no basis on which to grant service connection in this case. 4. Entitlement to service connection for right knee degenerative arthritis; and, 5. Entitlement to service connection for left knee degenerative arthritis The Veteran has a current diagnosis of degenerative arthritis of his bilateral knees. Thus, the first criteria of service connection has been met. Shedden, supra. Turning to an in-service incident or incurrent, the Veteran contends several theories of service connection. First, on his December 2014 notice of disagreement, he claims that he had problems with his knees while on active duty. Then, in December 2017 statement, he claimed that his knees were a result of exposure to herbicide agents and service in general. Finally, at his hearing, the Veteran testified that he had a round of ammo fall on his feet, but it didn’t hurt his knees. He went to VA in 1984 (18 years after service) for treatment for his back and knees, but felt he did not receive adequate treatment. Thereafter, he worked as a postal carrier for many years. Turning first to exposure to herbicide agents, arthritis is not a listed disease (unlike diabetes mellitus) that shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). The Veteran has presented no other medical evidence in support of his position. Turning to whether the Veteran’s knees are directly related to service, the Veteran’s service treatment records (STRs) do not reveal any injury or complaints of pain to his knees. Further, his separation examination is within normal limits. The Veteran has presented no other medical evidence in support of his position that the conditions are a result of an injury or duties in-service. However, he is competent to describe symptoms of knee pain in service, even if such is not noted in his service treatment records. Notably, at the Veteran’s separation from service in August 1996, on the report of medical history that he filled out, he specifically denied trick or locked knee and swollen or painful joints and described himself in excellent health. There were no significant abnormalities noted on exam at that time, and his lower extremities were noted to be normal. Thus, the Board finds that to the extent he experienced knee pain in service, it was not so significant that it rose to the level of a chronic disability or any lasting issue. Finally, the Board has considered the Veteran’s claim under the basis of continuity of symptomology. Certain chronic diseases, such as arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Again, there was no treatment for the knees in service, and the Veteran stated he first sought treatment in 1984, 18 years after service. Therefore, the Board does not find that the Veteran has presented a continuity of symptomology. The Board has considered the Veteran’s lay opinion that his knee arthritis is related to service. As above, the question of the potential relationship between the Veteran’s knees and service is found to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a diagnosis or connection between the two. To the extent that Veteran has asserted a continuity of symptomology, the Board does not find that the probative evidence of record evinces such a continuity. Thus, the weight of the evidence is for the claim for service connection for arthritis of the bilateral knees. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.