Citation Nr: 21023858 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-11 700 DATE: April 21, 2021 ORDER Entitlement to service connection for diabetes mellitus, claimed as the result of asbestos exposure, is denied. REMANDED Entitlement to service connection for a heart disability claimed as the result of asbestos exposure is remanded. Entitlement to service connection for a respiratory disability claimed as the result of asbestos exposure is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had diabetes mellitus at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1956 to June 1959. The matters come before the Board of Veterans Appeals (Board) from a November 2016 rating decision of the VA Regional Office (RO). In correspondence dated July 2014, the RO informed the Veteran that it received a response from the National Personnel Records Center (NPRC) that his service treatment records, separation documents, and personnel records could not be located because they were destroyed in a 1973 fire in at the facility where they were housed. As the STRs and personnel records are missing due to the due to no fault of the Veteran, there is a heightened obligation on the part of VA to explain findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The issues were previously before the Board in February 2020 and remanded. The remand mandated that the RO request that the Veteran complete VA Form 21-4142 for each private healthcare provider who treated him for any heart, respiratory, and diabetic disabilities, obtain all outstanding treatment records, and provide the Veteran with VA examination to determine the etiology of his claimed conditions. In March and April 2020, the RO requested that the Veteran provide a completed VA Form 21-4142. In a statement dated April 2020, the Veteran reported that his medical records were at the Dorn VAMC and these records were obtained. In this regard, there has been substantial compliance. In August 2020, the Veteran was afforded VA diabetes mellitus, respiratory, and cardiac examinations. The diabetes mellitus examination is adequate for examination. The examiner found that the Veteran did not have diabetes. The respiratory and heart conditions examinations are not. The Board finds that there has not been substantial compliance, in this regard. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for diabetes mellitus is denied. 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 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he has diabetes mellitus, which was incurred in service, specifically due to his claimed exposure to asbestos while being transported aboard a ship from Brooklyn, New York, to the Republic of Korea. As previously noted, the Veteran’s STRs are unavailable. The Veteran’s post-service treatment notes do not show complaint, treatment or symptoms or a diagnosis of diabetes mellitus. On multiple occasions, VA treatment notes show that he denied being diabetic. In August 2019, November 2019, and January 2020, VA treatment records show that the Veteran reported numbness and tingling in his feet but “denies being diabetic.” In February 2020 he reported “continued numbness, tingling in feet. Denies being diabetic.” In August 2020, the Veteran was afforded a VA diabetes mellitus examination. Upon examination, the examiner noted no signs and/or symptoms of diabetes and/or any motor and sensory deficit. Additionally, he noted that a recent laboratory work-up of August 21, 2020 reported blood glucose levels of 86, which is inconsistent with diabetes. The Board finds the examiner’s conclusion most probative against a finding that the Veteran has diabetes mellitus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion.). Further, there is not any competent medical evidence of record that contradicts the findings of the VA examiner. As noted above, the Veteran denied being diabetic at multiple VA treatment appointments and diabetes is not listed among his conditions. The Board acknowledges that the Veteran is competent to report observable symptoms. However, the specific issue in this case, whether he has diabetes mellitus, falls outside the realm of common knowledge of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Diagnosing diabetes is a medically complex task and is not within the competence of this Veteran, who has not been shown by the evidence of record to have the training, experience, or skills needed to self-diagnose diabetes mellitus. As the probative and competent medical evidence does not reflect that the Veteran currently has diabetes mellitus, the first element of a service connection claim is not met. Shedden, 381 F.3d 1163. Thus, service connection for diabetes mellitus is not warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the preponderance of the evidence of record is against the claim, and as such, service connection for diabetes mellitus must be denied. In arriving at its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. Gilbert, 1 Vet. App. 49 (1990); 38 U.S. § 5107 (b) (2012); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a heart disability claimed as the result of asbestos exposure is remanded. 2. Entitlement to service connection for a respiratory disability claimed as the result of asbestos exposure is remanded. The Veteran has been diagnosed with valvular heart disease and interstitial lung disease. He contends that they were incurred in service, specifically due to his claimed exposure to asbestos while being transported aboard a ship from Brooklyn, New York, to the Republic of Korea. The Veteran was afforded VA examinations in August 2020. The examiner provided a negative nexus to service. For the diagnosed interstitial lung disease, he explained that that the Veteran’s STRs neither shows a respiratory nor asbestos condition “during active service or the presumptive period, and his primary military occupational, especially (MOS), was field artillery, which does not typically give asbestos exposure.” Addressing the diagnosed valvular heart disease, the examiner noted that there is no diagnosis because there were no findings, signs and or symptoms to support a diagnosis of a heart condition. He explained that the Veteran STRs do not show any treatment for a cardiac condition. Moreover, the Veteran had a recent electrocardiogram (EKG) of August 21, 2020, with sinus rhythm. The Board finds the opinions inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiner specifically acknowledged a review of the STRs and noted the absence of a heart and lung condition in service. The STRs are not of record, for they were destroyed in a fire. Thus, the rationales provided are incomplete. A supplemental opinion is, therefore, warranted. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran’s claim file to a qualified clinician so that a supplemental opinion may be provided to determine the etiology of his respiratory disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. The examiner must opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory disorder began during active service or is related to any incidents therein, including claimed asbestos exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 2. Provide the Veteran’s claim file to a qualified clinician so that a supplemental opinion may be provided to determine the etiology of his heart disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s heart disorder began during active service or is related to any incidents therein, including claimed asbestos exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. (Continued on the next page)   3. Ensure that the directives specified in this remand have been implemented.  If they have not, appropriate corrective action must be undertaken before readjudication.  Stegall v. West, 11 Vet. App. 268 (1998).   4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.