Citation Nr: 21030075 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-43 014 DATE: May 17, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, (DM) is denied. Entitlement to service connection for peripheral neuropathy (PN) of the right arm is denied. Entitlement to service connection for PN of the left arm is denied. Entitlement to service connection for PN of the right leg is denied. Entitlement to service connection for PN of the left leg is denied. FINDINGS OF FACT 1. The Veteran had active service from January 1965 to March 1974. 2. The most probative evidence reflects that DM was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; and is not causally or etiologically related to service, to include as due to exposure to herbicides. 3. The most probative evidence reflects that PN of either of the Veteran's arms or legs was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; PN is not causally or etiologically related to service, to include as due to exposure to herbicides, and was not caused by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for DM are not met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria to establish service connection for PN of the right arm are not met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2020). 3. The criteria to establish service connection for PN of the left arm are not met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria to establish service connection for PN of the right leg are not met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2020). 5. The criteria to establish service connection for PN of the left leg are not met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran: (1) served in the Republic of Vietnam between January 1962 and May 1975, (2) served between April 1968 and August 1971 in or near the Korean Demilitarized Zone; (3) served near the base perimeter of certain Thailand Air Force Bases during the Vietnam War era, or (4) regularly and repeatedly operated, maintained, or served aboard aircraft known to have been used to spray a herbicide agent during the Vietnam War Era. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's main contention is that DM is due to herbicide exposure, including Agent Orange, during service. He further contends that PN of all four extremities is secondary to DM. Service Connection DM The Veteran's VA clinical treatment notes reflect a current diagnosis of DM. As such, a current disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the service treatment records (STRs) do not reflect treatment for or a diagnosis of DM during service. Importantly, the February 1974 separation examination reported no defects and no diagnosis of DM was made. To this point, the Veteran's main contention is that DM is due to herbicide exposure during service. However, the personnel record does not show any evidence that he was exposed to Agent Orange or any other herbicide agents. First, although he served in the Navy, the personnel records do not reflect, nor does he contend, that he served in the Republic of Vietnam or Thailand. Rather, he argues that he was exposed to Agent Orange while stationed in Subic Bay in the Philippines between March 1968 and August 1969. Specifically, the Veteran contends that he was exposed to herbicides around the perimeter of the commissary store and at the ship docks where supplies were routinely transported. However, service in the Philippines is not entitled to the presumption of herbicide exposure. As such, exposure to herbicides may not be conceded presumptively. Further, Department of Defense records documenting herbicide usage outside of Vietnam during the relevant period do not indicate that herbicides were used in the Philippines. The Veteran has submitted an internet article and a copy of a prior Board decision regarding the use of Agent Orange in the Philippines; however, the prior decision by the Board is not precedential regarding this matter, and the internet article merely describes the circumstances of Veterans unrelated to the current appellant who attained a favorable decision from the Board. Wallin v. West, 11 Vet. App. 509, 514 (1998). This evidence is insufficient to establish exposure. Other than his lay testimony, there is no other evidence that supports exposure to Agent Orange or any other herbicides during service. Accordingly, the evidence does not support service connection for Agent Orange on a presumptive basis. Next, DM is considered as a chronic disease under 38 C.F.R. § 3.309 (a) and presumptive service connection will be considered. However, while DM has been shown during the appeal period, the most probative evidence does not show that the disease manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology has not been established. Specifically, while the Veteran's active service ended in 1974, VA medical treatment records from 1997 and 2000 reflect that he did not have a diagnosis of DM at that time. The medical evidence does not show treatment for DM until 2017, which is more than 40 years after he separated since service. As such, DM did not manifest itself to a compensable degree in service or within the one-year presumptive period. Additionally, because he did not report symptoms related to DM for many years after service, and did not experience symptoms in service, continuity of symptomatology has not been established. Therefore, the medical evidence does not support service connection on a presumptive basis. Service Connection PN Turning to the medical evidence, June 2017 VA clinical treatment records reflect PN manifested by pain and numbness in the hands and feet. As such, a current disorder has been shown for all four extremities and the first element of service connection has been met. As to in-service incurrence, the STRs do not show complaints of or treatment for symptoms of PN during service. Specifically, the 1974 separation examination reflected a normal clinical evaluation of the upper and lower extremities. As such, the medical evidence does not support the in-service incurrence of PN. Next, as noted above, there is no evidence that he served in Vietnam or was exposed to any herbicides, including Agent Orange, while in service. Thus, service connection is not warranted on this basis. Further, PN is considered as a chronic disease under 38 C.F.R. § 3.309 (a) and presumptive service connection will be considered. However, while PN has been shown, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology has not been established. Specifically, while the Veteran's active service ended in 1974, the medical evidence does not show treatment for PN until 2017, which is more than 40 years after he separated since service. As such, PN did not manifest itself to a compensable degree in service or within the one-year presumptive period. Additionally, because he did not report symptoms related to PN for many years after service, and did not experience symptoms in service, continuity of symptomatology has not been established. Therefore, the medical evidence does not support service connection on a presumptive basis. Finally, the Veteran's primary contention is that PN is related to his current diagnosis of DM. While he has a current diagnosis of PN, he is not currently service connected for DM. As such, secondary service connection for PN of the upper and lower extremities is not warranted. The Board has considered the Veteran's lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kokolas, 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.