Citation Nr: 21030863 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-21 980 DATE: May 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for diabetes mellitus type II (diabetes) is denied. Entitlement to service connection for bilateral lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran was awarded service connection for bilateral hearing loss and tinnitus. 2. The Veteran's diabetes was not incurred in or due to his time in service, to include exposure to herbicide agents. 3. The Veteran does not have bilateral lower extremity radiculopathy that was incurred in and due to his time in service or proximately due to any of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeals regarding entitlement to service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55, 20.204. 2. The criteria for service connection for diabetes are not met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3. The criteria for service connection for bilateral lower extremity radiculopathy are not met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1962 to July 1965. Dismissed Claims Regarding the claims of service connection for bilateral hearing loss and tinnitus, that were before the Board in its previous remand, the claim was granted by the RO in an April 2017 rating decision. As the full benefit sought was granted i.e., an award of service connection further appellate review is moot, and the claims are no longer on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In relevant part, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ (i.e. demilitarized zone) in an area in which herbicides are known to have been applied during that period, 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. See 38 C.F.R. § 3.307 (a)(6)(iv). The Veteran contends he has diabetes and bilateral lower extremity radiculopathy that were incurred in and due to his time in service, to include his exposure to herbicide agents while serving in or near the Korean DMZ. Additionally, the Veteran contends his bilateral lower extremity radiculopathy is secondary to his diabetes. The Veteran has been diagnosed with diabetes. However, his record does not indicate he has been diagnosed with bilateral lower extremity radiculopathy. The Veteran's service treatment records (STRs) do not indicate he was seen for or diagnosed with diabetes or bilateral lower extremity radiculopathy while in service. The Board notes the Veteran was not provided a separate examination and opinion as to the current nature and etiology of his claimed conditions by VA. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as the Veteran is not shown to have suffered his condition while in service and there is no other competent medical evidence suggesting an association to service. The service records and post-service records provide evidence against this claim. While the Veteran's record may show service connection is not warranted on a direct basis, the Board will address the Veteran's contention that service connection is warranted on a presumptive basis due to exposure to herbicide agents. The Board notes the Veteran's record does indicate he served in the Korean DMZ. However, the Veteran separated from service in July 1965. Per VA regulations as discussed above, the Veteran's service in Korea occurred prior to the April 1, 1968, to August 31, 1971 time period in which it is presumed veterans had been exposed to herbicides. Additionally, an April 2014 formal finding stated there was a lack of information to verify the Veteran's exposure to herbicides while in Korea and there was no other evidence provided to show the Veteran served in Korea during the relevant time period. Therefore, based on all the above, the claim will be denied. Regarding the Veteran's claim to bilateral lower extremity radiculopathy, as noted above, the Veteran's file does not show a conclusive diagnosis of this claimed disability. However, even if the Board were to assume the Veteran had a diagnosis of this claimed condition, the Veteran's STRs do not indicate he was seen for this condition while in service and since the Veteran's diabetes has not been service-connected, it cannot be the basis for a finding of secondary service connection. Therefore, the claim will be denied. Both service and, as importantly, post-service treatment records provide evidence against these claims, indicating problems that began decades after service or not indicating the problem at all. Regarding all the above, the Board acknowledges the Veteran's disabilities cause him pain, discomfort, and stress and that he continues to seek treatment for some of his disabilities. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent medical evidence of record and has weighed it accordingly as discussed above. Additionally, the Board notes that while the evidence does show the Veteran served in Korea, it was not during the relevant time period when exposure to herbicide agents can be presumed. It is important for the Veteran to understand that the facts and medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that these problems are the result of service to include his exposure to herbicide agents, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.