Citation Nr: 21015566 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-59 403 DATE: March 17, 2021 ORDER Service connection for a nasal/respiratory disability including as due to herbicide agent exposure is denied. A rating in excess of 20 percent for diabetes mellitus, type 2 is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during verified service in the Republic of Vietnam during the Vietnam Era. The Veteran’s claimed disabilities of allergic rhinitis and sinusitis are not listed diseases eligible for presumptive service connection for herbicide exposure. 2. The Veteran does not have a current diagnosis of sinusitis. The Veteran is currently diagnosed with allergic rhinitis. 3. The Veteran’s nasal/respiratory disability, diagnosed as allergic rhinitis, is not related to service, including as due to presumed in-service herbicide exposure. 4. The Veteran’s diabetes mellitus does not require one or more daily injection of insulin and regulation of activities. CONCLUSIONS OF LAW 1. The criteria for service connection for a nasal/respiratory disability, diagnosed as allergic rhinitis, including due to herbicide exposure, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1966 to October 1969. By way of procedural history, the Board incorporates by reference the procedural history recited in the Board’s October 2020 remand. In October 2020, the Board remanded the service-connection claims for a nasal/respiratory disability and hypertensive non-obstructive cardiomyopathy, and an increased rating claim for diabetes, to the AOJ for additional development and consideration. On remand, in a December 2020 rating decision, the RO granted service connection for hypertensive non-obstructive cardiomyopathy as secondary to service-connected hypertension. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The file is again before the Board for further appellate review. 1. Service connection for a nasal/respiratory disability including as due to herbicide agent exposure The Veteran attributes his current nasal/respiratory disability, to include claimed sinus and allergy problems to in-service exposure to herbicide agents. See Veteran’s December 2013 claim. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires evidence demonstrating: (1) the existence of 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 claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.307 (a)(6)(iii). As the Veteran’s service personnel records show he had verified service in the U.S. Army in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicide agents. 38C.F.R. § 3.307 (a)(6)(iii). The Board notes that allergic rhinitis and sinusitis are not among the listed diseases entitled to presumptive service connection for herbicide exposure under 38 C.F.R. § 3.309 (e). However, the governing regulations allow the Veteran to instead establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). The Board will consider the theory of entitlement to service connection on a direct basis, including as due to his presumed in-service herbicide exposure. In this case, the Veteran presently has a disability of allergic rhinitis, diagnosed by the December 2020 VA examiner. However, the evidence of record does not establish an additional nasal/respiratory disability of sinusitis, including on review of his VA treatment records. The requirement that a current disability be present is satisfied when a claimant has a disability: 1) at the time a claim for VA disability compensation is filed, or 2) during the pendency of that claim, even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The VA examiner specifically found against sinusitis, reasoning, “I did not diagnose chronic sinusitis at this time, only allergic rhinitis. This is based on the clinical history and evaluation done today. He did not have a sinus infection at time of exam based on lay history report.” Given the VA examiner’s review of the claims file, personal interview of the Veteran, and discussion of the rationale of the opinion, the Board finds the VA examiner’s opinion is highly probative evidence against possibility of service connection for sinusitis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). This is highly probative evidence against the possibility of a current disability of sinusitis. There is also no contention or evidence of in-service asbestos exposure, as the Veteran’s service treatment records and service personnel records are unremarkable for any indication of asbestos exposure. In November 2020, the AOJ also obtained a document entitled, “Asbestos MOS Handout,” which lists numerous Military Occupational Specialties (MOSs) and any probability of asbestos exposure for a given MOS. The Veteran’s MOS of combat engineer was not among the listed MOSs, so there is no indication of in-service asbestos exposure. In this regard, a review of the Veteran’s service treatment records (STRs) shows he experienced nasal or respiratory problems during service. For instance, the Veteran’s October 1969 separation exam did not diagnose allergic rhinitis or sinusitis, and clinical evaluation showed his nose and sinuses were normal. On the medical history report of his separation exam, he denied sinusitis, hay fever, and ear nose or throat trouble. There is no medical opinion evidence that relates his current allergic rhinitis to service. In fact, there is highly probative medical opinion evidence against the claim. The December 2020 VA examiner specifically discounted the notion that any claimed nasal/respiratory disability was related to service, including due to accepted in-service herbicide exposure. The examiner stated, “The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” In relevant part, the December 2020 VA physician reasoned, “The current diagnosis rendered is allergic rhinitis. This condition is allergy due to pollen. This condition was not noted in service records and lay history is that the condition predominately started after separation when he saw an allergist. The separation exam [October 1969] was negative [for] allergies or sinus issues or other respiratory issues. The report of history during separation was also negative for allergies or sinus issues or other respiratory issues. The cause of the current allergies are from environmental allergies to tree pollen related to where he lives now. I was unable to find in the literature that herbicide or asbestos exposure would cause allergies (specifically allergies from tree pollen, which is what he reports he has as told to him by his allergist).” Moreover, this opinion is highly probative based upon the VA examiner’s review of medical records, consideration of the Veteran’s contentions, and discussion of the rationale of the opinion. Nieves- Rodriguez, 22 Vet. App. at 304. Thus, the probative evidence weighs against the Veteran’s claim. The Board has also considered the Veteran’s lay statements in support of his claim. As the Veteran is a layperson, the Board finds that he is not competent to self-diagnose any chronic disability related to his claimed sinusitis, because this requires medical expertise he does not possess. The Board further acknowledges the Veteran’s lay statements that his claimed allergy problems are related to in-service exposure to herbicides, but he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Accordingly, the Board concludes the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type 2 The Veteran contends that his diabetes has worsened due to an increase in medications. See December 2013 claim. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In this case, the Board reviews the evidence of record since December 2012, which is one year before the December 2013 increased rating claim was filed. The Veteran’s service-connected diabetes mellitus has been rated under 38 C.F.R. § 4.119, DC 7913, for diabetes mellitus. Under DC 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring insulin, a 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 maximum 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. 38 C.F.R. § 4.119, DC 7913. “Regulation of activities” has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities,” as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Having carefully considered the evidence and applicable law, the Board finds that the criteria for a rating in excess of 20 percent have not been met. At a January 2014 VA examination it was noted that the Veteran’s diabetes mellitus is managed by a restricted diet and prescribed oral hypoglycemic agents. The examiner also found that the Veteran visited his diabetic provider less than 2 times per month for episodes of ketoacidosis or hypoglycemia. However, the January 2014 VA examiner marked that the Veteran did require the regulation of activities as part of the medical management of his diabetes mellitus, commenting, “The claimant reports the following activity restrictions are due to diabetes: he takes some medications that he cannot go out in the sun and he cannot do a lot of things that he used to do.” The Board finds that this latter finding was unclear is not accorded probative value, since it is an unsupported finding that relied upon the Veteran’s self-reported statements. Additionally, as noted, “[r]egulation of activities” has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). At a December 2020 VA examination it was noted that the Veteran’s diabetes mellitus is managed by a restricted diet and prescribed oral hypoglycemic agents. The VA examiner specifically noted that the Veteran did not require the regulation of activities as part of the medical management of his diabetes mellitus. It was noted that the Veteran visited his diabetic provider less than 2 times per month for episodes of ketoacidosis or hypoglycemia. However, no hospitalizations for episodes of ketoacidosis or hypoglycemia were required. It was also noted that the Veteran’s diabetes mellitus did not affect work. A review of VA treatment records does not provide any findings supporting an increased rating. Based on this evidence, the Board finds that this evidence does not sufficiently establish that the Veteran’s diabetes mellitus requires insulin or results in regulation of activities, which are necessary criteria for a rating in excess of 20 percent for diabetes. DC 7913. At this time, the Board acknowledges that the Veteran receives treatment for episodes of ketoacidosis or hypoglycemia. It is also acknowledged that regulation of activities with episodes of ketoacidosis or hypoglycemia 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 would warrant the assignment of a 60 percent rating. However, as noted, the Veteran’s diabetes mellitus does not require insulin and regulation of activities, and while the Veteran has received treatment for episodes of ketoacidosis or hypoglycemia, the treatment has been less than 2 times per month and hospitalization has not been required. In any event, for DC 7913, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component. Because insulin and “regulation of activities” has not been established, the Veteran is not entitled to a disability rating to 40 percent, 60 percent, or 100 percent. Camacho, 21 Vet. App. at 366-367. Pursuant to Note 1 under Diagnostic Code 7913, the Board must assign separate ratings for any compensable complications of the Veteran’s service-connected diabetes. All noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119; Diagnostic Code 7913, Note (1). Here, the Board notes that the Veteran was already separately service-connected for erectile dysfunction, associated with his diabetes. However, in May 2019, the Board denied his claim for an initial rating higher than 60 percent for his diabetic nephropathy. Also, in October 2020, the Board denied his claim for an initial compensable rating for his ED. 38 C.F.R. § 4.119; Diagnostic Code 7913, Note (1). No other complications related to his diabetes have been diagnosed. The Veteran has not provided any lay statements that indicate his diabetes requires regulation of activities or insulin. Absent evidence that the Veteran’s service-connected diabetes mellitus requires daily injection of insulin, restricted diet, and regulation of activities, the Board finds that the criteria for a rating greater than 20 percent have not been met. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board concludes the evidence does not support the claim for an increased rating for diabetes and there is no doubt to be otherwise resolved. As such, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.