Citation Nr: 21029016 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-42 889 DATE: May 12, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for headaches is denied. REMANDED The issue of entitlement to service connection for a right foot skin disability is remanded. The issue of entitlement to service connection for a left foot skin disability is remanded. The issue of entitlement to service connection for a right leg skin disability is remanded. The issue of entitlement to service connection for a left leg skin disability is remanded. The issue of entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had diabetes mellitus, type II, at any time during or proximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's current headache disability began during his active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a headache disability have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to August 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in April 2020. The case has been returned to the Board for review. In October 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for diabetes mellitus, type II, is denied. The Veteran seeks entitlement to service connection for diabetes mellitus, type II. Specifically, the Veteran contends that he has diabetes mellitus, type II, due to exposure to herbicide agents while serving in the territorial waters of Vietnam. See, e.g., October 2019 Board hearing transcript. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of diabetes mellitus, type II, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In January 2021, the Veteran underwent a diabetes mellitus examination. The VA examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The VA examiner determined that the Veteran does not have a current diagnosis of diabetes mellitus, type I, or type II. The VA examiner further noted that laboratory testing completed in conjunction with the VA examination related to diabetes was normal. The Board notes that the Veteran submitted a January 2017 private medical record reflecting that the Veteran has been treated for diabetes for which he is testing twice daily. However, the private record does not identify the type of diabetes, nor any supporting treatment records related to the Veteran's claimed diabetes. As such, the Board finds that the medical evidence of record does not demonstrate that the Veteran has a current diagnosis of diabetes mellitus, type II. Accordingly, the competent medical evidence of record does not show that the Veteran had a diagnosis of diabetes mellitus, type II, during or in proximity to the relevant appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, type II. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for headaches is denied. The Veteran seeks entitlement to service connection for headaches. The Veteran reported that his headaches had their onset during service after he was struck in the head by a crate. An August 2020 VA examination reflects that the Veteran has a current diagnosis of cephalgia. Therefore, there is evidence of a current disability. However, the Veteran's service treatment records are silent for any complaints of or treatment for a headache disorder, and the first post-service medical evidence of record reflecting complaints of headaches is dated in June 2015, 50 years after the Veteran's discharge from service. At that time, the Veteran noted headaches several times a week. Thus, the record does not establish in-service incurrence of a headache disability. Additionally, the only medical evidence in the claims file discussing the etiology of the Veteran's headache disability is an August 2020 VA opinion, which concluded that it was less likely than not that the Veteran's headache disability was incurred in or caused by the claimed in-service injury, event or illness. The August 2020 VA examiner noted that the Veteran's service treatment records are silent for an incident of being struck in the head with a crate during service and there is no evidence of a diagnosis for a headache condition. Additionally, the Veteran's separation examination was silent for a headache condition. The VA examiner noted that the Veteran's private treatment records indicate that the Veteran had problems with headaches; however, the private treatment records do not contain a diagnosis of a headache disability. The only evidence indicating an association between the current headache disability and active duty are the Veteran's own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of cephalgia is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran's current cephalgia had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of cephalgia. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). After reviewing all evidence of record, the Board finds that the uncontradicted opinion from the VA examiner is the most persuasive evidence regarding the etiology of the Veteran's cephalgia. The examiner's conclusion followed an extensive examination of the Veteran and a review of his claims file, as well as consideration of reported history; therefore, the August 2020 VA opinion is afforded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran's current cephalgia and his active military service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right foot skin disability is remanded. 2. Entitlement to service connection for a left foot skin disability is remanded. 3. Entitlement to service connection for a right leg skin disability is remanded. 4. Entitlement to service connection for a left leg skin disability is remanded. The April 2020 Board remand directed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of all skin conditions affecting the feet and/or legs. The remand specified the VA examiner address the Veteran's service medical records showing he was treated for blisters, lumps, warts, and rashes during service. On remand, an October 2020 VA examiner diagnosed the Veteran with stasis dermatitis and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner merely stated that the Veteran's rash was not caused by military service. However, the VA examiner did not address the Veteran's service medical records showing he was treated for blisters, lumps, warts, and rashes during service. Therefore, the Board finds that the October 2020 VA examination does not substantially complete the April 2020 Board remand directives, and that the issues must be remanded for an addendum opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Entitlement to service connection for a heart disability is remanded. The Veteran contends that he has a heart condition that is directly related to his active service. Specifically, the Veteran testified that his current heart condition is related to in-service exposure to herbicide agents. The Veteran's military personnel records reflect that he served within the territorial waters of Vietnam during his active service. As such, exposure to herbicide agents is conceded. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (codified at 38 U.S.C. § 1116A ). Certain diseases shall be service connected presumptively for veterans with service in the Republic of Vietnam, even if there is no record of such disease during service. 38 C.F.R. § 3.307 (a). The diseases that will be presumed to be related to service as a result of exposure to herbicides are enumerated in 38 C.F.R. § 3.309 (e), but a claimant is not precluded from establishing service connection for other disabilities with proof of actual direct causation, i.e. a link between the current disability and in-service exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran was provided a VA examination related to his heart disability in January 2021. The VA examiner diagnosed the Veteran with supraventricular arrythmia and mild hypertrophic obstructive cardiomyopathy. The VA examiner opined that the Veteran's heart disabilities are less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner explained that the Veteran's heart conditions are not presumptive conditions of herbicide agent exposure. However, the VA examiner did not provide an opinion as to whether the Veteran's heart disabilities are directly related to his active service, including his conceded exposure to herbicide agents. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed stasis dermatitis is at least as likely as not (50 percent or greater probability) related to an in-service event, injury, or illness, to include the documented in-service blisters, lumps, warts, and rashes. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed heart disabilities are at least as likely as not (50 percent or greater probability) related to an in-service event, injury, or illness, to include his presumed exposure to herbicide agents? The examiner must note that, although supraventricular arrythmia and mild hypertrophic obstructive cardiomyopathy are not among the conditions subject to presumptive service connection as diseases associated with exposure to herbicide agents under 38 C.F.R. § 3.309 (e), the Veteran is not precluded from establishing service connection for supraventricular arrythmia and/or mild hypertrophic obstructive cardiomyopathy with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.