Citation Nr: 21021346 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-04 869 DATE: April 12, 2021 ORDER Entitlement to service connection for diabetes mellitus (DM) is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to DM, is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to DM, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to DM, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to DM, is denied. FINDINGS OF FACT 1. DM of service origin has not been demonstrated. 2. The Veteran does not have right upper extremity peripheral neuropathy caused or aggravated by DM. 3. The Veteran does not have left upper extremity peripheral neuropathy caused or aggravated by DM. 4. The Veteran does not have right lower extremity peripheral neuropathy caused or aggravated by DM. 5. The Veteran does not have left lower extremity peripheral neuropathy caused or aggravated by DM. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 4. The criteria for service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. The criteria for service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1967, with service in Vietnam. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in September 2018. It was again remanded for further development in September 2020. The requested development has been completed and the matter is now ready for appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2020). 38 U.S.C. § 7107(a)(2) (2012). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Other specifically enumerated disorders, such as DM, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations 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(d)(6)(i). Section 3.307(d)(6) also provides that 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(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. Id. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange (AO) is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that 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). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between AO and a disease not on the presumptive list may not be the only basis for a positive nexus opinion, it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. DM The Veteran maintains that he currently has DM which arises out of exposure to AO in service. Service treatment records reveal no complaints or findings of DM in service. At the time of the Veteran’s November 1967 service separation examination, negative findings were reported for sugar and albumin. Treatment records associated with the claims file make reference to the Veteran being borderline diabetic in May 2009. In October 2009, the Veteran attended a Diabetes Prevention Class. At the time of a March 2010 VA outpatient neurology visit, the Veteran was noted to have diabetes and lumbar radiculopathy. However, there were no diagnostic testing results to support a finding of DM. At the time of an August 2013 VA examination, the Veteran was diagnosed with impaired fasting glucose. The examiner observed that the Veteran had been diagnosed as being borderline diabetic in March 2009. The examiner did not render a diagnosis of DM. However, the examiner later found that there was diabetic peripheral neuropathy. In its September 2018 remand, the Board noted that although the Veteran underwent a VA diabetes examination in August 2013, the results from that examination appeared to be in conflict. It observed that the VA examiner appeared to indicate that the Veteran did not have diabetes, rather, he only had impaired fasting glucose. But the examiner later found that there was diabetic peripheral neuropathy. The Board also observed that it appeared that the determination as to the Veteran’s diabetes diagnosis was based in large part on laboratory results from 2009 and 2010 as opposed to contemporaneous findings. Based on the foregoing, the Board found that the Veteran should be scheduled for a VA examination. At the time of a July 2019 VA examination, the Veteran was noted to have been diagnosed with impaired glucose fasting. The examiner indicated that the Veteran’s most recent A1Cs were between 5 and 6. The examiner stated that per review of VBMS, the Veteran did not have documented glucose or A1C elevations that were diagnostic for diabetes. The Veteran was afforded an additional VA examination in March 2021. The examiner specifically indicated that there was no diagnosis of DM. The Veteran was noted to have impaired fasting glucose. The Veteran was reported to have had a A1C level of 6 at the time of a July 2020 visit. The examiner opined that 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. She indicated that no chronic diagnosis had been made for DM Type II or Type I. Objective exam was normal and symptoms were subjective only. A nexus had not been established. Congress, as a general rule, limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C. § 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C. § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, the general rule is that in the absence of proof of present disability there can be no valid claim. Based on the above, to the extent that the medical evidence addresses whether the Veteran has DM, it indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has DM, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. The weight of the evidence is against a finding that the Veteran currently has DM. A necessary element for establishing service connection-evidence of a current disability-has not been shown. For the foregoing reasons, the claim for service connection for DM must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Peripheral Neuropathy of the Upper and Lower Extremities The Veteran maintains that he currently has upper and lower extremity peripheral neuropathy as secondary to DM. He has not claimed that he has any current peripheral neuropathy which is directly related to his period of service, limiting his appeal to the claimed neuropathies being related to DM. Moreover, the record does not demonstrate any complaints or findings of peripheral neuropathy in service or in close proximity to service. 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; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (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). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted above, service connection for DM has been denied. As such, the Veteran’s claims for service connection for left or right upper and lower extremity neuropathy must be denied as the necessity for having a service-connected disability causing or aggravating the claimed disability is not present. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.