Citation Nr: 21023222 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-29 687 DATE: April 20, 2021 ORDER Entitlement to service connection for a bilateral foot disability, to include "jungle rot", is denied. REMANDED Entitlement to service connection, to include on a presumptive basis, for diabetes mellitus, type II is remanded. FINDING OF FACT The evidence of record does not reflect any diagnosed, undiagnosed, or other qualifying bilateral foot disability during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot disability, to include "Jungle Rot", have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that entitlement to service connection and entitlement to an earlier effective date for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), was previously on appeal; the Board finds this claim is now no longer on appeal. A May 2016 rating decision awarded entitlement to service connection for PTSD with an initial rating of 70 percent from April 14, 2014. In a June 2016 notice of disagreement, the Veteran argued that an earlier effective date of December 28, 2012, the date of his claim, should be awarded for his service-connected PTSD. Notably, the Veteran did not disagree with the initial rating of 70 percent. In an October 2017 rating decision, the RO granted an earlier effective date of December 28, 2012, for the award of service connection for the Veteran’s PTSD. Accordingly, the Veteran was rated at 70 percent from December 28, 2012 for his service-connected acquired psychiatric disability, to include PTSD. No statement of the case (SOC) was issued in regard to the Veteran’s service-connected psychiatric disability, and the Board finds that an SOC was not necessary since the Veteran received a full award of the benefit sought. Accordingly, the Veteran’s service-connected psychiatric disability, to include PTSD, is not on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Certain chronic diseases 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). The Veteran served in Vietnam for almost one year. The Veteran is presumed to have been exposed to herbicides. VA laws and regulations provide that if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Entitlement to service connection to a bilateral foot disability, to include "Jungle Rot" The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of a foot problem during service. To the contrary, an August 1966 report of medical examination noted that the Veteran’s feet were normal, and an August 1966 report of medical history noted that the Veteran did not have foot trouble. A June 1969 report of medical history again noted that the Veteran did not have foot trouble. Lastly, an August 1969 separation examination noted that evaluation of the Veteran’s feet was normal. A May 2010 private treatment record notes that the Veteran had a problem “all over [the Veteran’s] to nails.” The record further notes that the Veteran had flat, fungal warts. The duration of the condition was unclear and it was noted that previous treatment included freezing and treatment with a fungal pill for 1 year. The record further noted that the Veteran was directed to seal his feet and grow his toenails. A June 2010 private treatment record notes that the Veteran received followup treatment for tinea, a fungal disease, on his hands and arms. The record notes that the Veteran’s feet had improved. On his December 2012 VA Form 21-526 Fully Developed Claim, the Veteran indicated that he did not receive treatment for his claimed bilateral foot disability. On an April 2014 notice of disagreement, the Veteran asserted that he had “jungle rot of the feet” when he returned home from Vietnam. He claimed that he had problems with this condition since service and that several family members observed this problem. VA treatment records and private treatment records, other than the May 2010 and June 2010 private treatment records, are silent for any complaints, treatment, or diagnosis of a foot problem. The Board finds that the Veteran’s report of a bilateral foot disability since service lacks credibility. The Board notes that the Veteran asserted on his April 2014 notice of disagreement that several family members observed his foot condition, however, no supporting evidence, such as buddy statements, has been provided in support of his claim for a bilateral foot disability. Moreover, the Board notes that the Veteran’s service treatment records, including his separation examination, are negative for any foot complaints, treatment, or diagnosis, which weighs heavily against the Veteran’s report that his problem began during and continued since his service in Vietnam. Lastly, despite seeking treatment for other conditions, the Veteran’s post-service treatment records silent for any complaints, treatment, or diagnosis of a foot disability until May 2010 and June 2010 and are silent thereafter. Accordingly, the Board affords no probative value to the Veteran’s reports of a chronic bilateral foot disability that began during and continued since service. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996). (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). There is simply no credible evidence of record to show that the Veteran had a foot disability during the period on appeal. The Veteran filed his claim in December 2012. The only evidence of a foot problem is contained in the May 2010 and June 2010 private treatment records, which are dated more than one year prior to the Veteran’s filing of his claim. Moreover, the June 2010 private treatment record notes that the Veteran’s foot problem had improved. The Board acknowledges that the Veteran was not afforded a VA examination for his claim for service connection for a bilateral foot disability. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, none of the McLendon elements were met. The Veteran has not provided any competent or credible evidence of a current disability or persistent or current symptoms of a disability. The record is devoid of any descriptions of the symptoms experienced by the Veteran related to his bilateral foot disability, except for the Veteran’s April 2014 statement contained on his notice of disagreement which has been found to lack credibility. The Veteran’s service records do not establish an in-service event precipitating the Veteran’s alleged bilateral foot disability. In this regard, the Board finds that the Veteran has submitted insufficient, lay or medical, evidence to indicate that he has a bilateral foot disability, related to an event, injury, or disease that occurred in service. Accordingly, the Board finds that no further development of the Veteran’s claim for service connection for a bilateral foot disability is required. As previously mentioned, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a left foot or right foot disability during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board must deny the claim. REASONS FOR REMAND Entitlement to service connection, to include on a presumptive basis, for diabetes mellitus, type II is remanded. The Board finds that remand is required to adequately determine whether the Veteran has or had during the period on appeal a diagnosis of diabetes mellitus, type II confirmed by diagnostic testing and, if so, whether the Veteran’s diabetes mellitus is etiologically related to the Veteran’s active duty service, to include exposure to herbicides in Vietnam. Private treatment records note that an A1C of less than 5.7 is consistent with the absence of diabetes, that an A1C of 5.7-6.4 is consistent with increased risk for diabetes (prediabetes); that an A1C of greater than or equal to 6.5 is consistent with diabetes; and that an A1C of less than 7 represented optimal control in non-pregnant diabetic patients. A March 2016 VA examiner’s report noted that pursuant to ADA and VA guidelines, a diagnosis of diabetes mellitus, type II required an A1C reading of 6.5 or greater on 2 separate occasions 3 months apart; 2 fasting blood glucose readings of greater than 125; or a random blood glucose of greater than 200 with symptoms of diabetes. The Veteran’s A1C results were 6.7 in October 2012, 5.8 in June 2013, 6.2 in February 2016, and 7.1 in April 2016. See October 2012 private treatment record, June 2013 VA examiner’s report, February 2016 VA examiner’s report, and April 2016 private treatment record. The Veteran’s glucose results were 109 in October 2012, 142 in February 2016, and 140 in April 2016. See October 2012 private treatment record, February 2016 VA examiner’s report, and April 2016 private treatment record. The evidence is unclear in regard to whether each of the glucose readings was taken after fasting, however, both the February 2016 and the April 2016 glucose readings were greater than 125. In affording the Veteran the benefit of the doubt, the Board finds that remand is required to confirm whether the Veteran had a diagnosis of diabetes mellitus, type II and, if so, to obtain a VA opinion addressing the etiology of any such diagnosis. Accordingly, entitlement to service connection for diabetes mellitus, type II is remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination for his claimed diabetes mellitus, type II disability. The claims file should me made available to the examiner and the VA examiner is asked to specifically consider the hemoglobin A1C and blood glucose readings contained in the October 2012 private treatment record, June 2013 VA examiner’s report, February 2016 VA examiner’s report, and April 2016 private treatment record. All indicate studies and tests should be performed. The VA examiner must opine as to the following: a. Does the Veteran have a diagnosis of diabetes mellitus confirmed by diagnostic testing? (Continued on the next page)   b. If so, is it at least as likely as not (50 percent or greater probability) that any current diabetes mellitus disability had its onset in or is etiologically-related to the Veteran’s active duty service, including exposure to herbicide agents? 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, Associate 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.