Citation Nr: 22017790 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 17-18 687 DATE: March 26, 2022 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a disability manifested by seizures is denied. Entitlement to service connection for a disability manifested by memory loss is denied. Entitlement to service connection for hearing loss is denied. Entitlement to service connection for a disability manifested by high cholesterol is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for nasopharyngeal carcinoma is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that diabetes mellitus began during a period of ACDUTRA. 2. The evidence of record persuasively weighs against finding that the appellant has had a chronic disability manifested by seizures at any time during or approximate to the pendency of the claim. 3. The evidence of record persuasively weighs against finding that the appellant has had a chronic disability manifested by memory loss at any time during or approximate to the pendency of the claim. 4. The evidence of record persuasively weighs against finding that the appellant has had hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. 5. High cholesterol is considered a laboratory finding and not a disability for VA compensation purposes. 6. The evidence of record persuasively weighs against finding hypertension began during a period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303. 2. The criteria for service connection for a disability manifested by seizures have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303. 3. The criteria for service connection for a disability manifested by memory loss have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303. 4. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303. 5. The criteria for service connection for a disability manifested by high cholesterol have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303. 6. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had an initial period of ACDUTRA from March 1, 1988 to June 28, 1988; with additional periods of ACDUTRA. He was discharged from the Army Reserves in September 1995. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in November 2019. This matter was originally on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). 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. §§ 1110, 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). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101 (24), 106. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Thus, to establish "Veteran" status with respect to service in the Army Reserves, and eligibility for service connection, the record must show that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA. Regarding ACDUTRA, the presumptions available to a claimant are limited. Unless and until "Veteran" status is established for any period of ACDUTRA, the presumptions of soundness and aggravation, as well as the presumptions of service connection for certain diseases under the statute and pertinent regulations, do not apply. See 38 U.S.C. §§ 1111, 1153; Bowers v. Shinseki, 26 Vet. App. 201, 206-07 (2013). A claimant whose claim is based on a period of ACDUTRA can never be entitled to the presumptions of service connection for chronic diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). 1. Entitlement to service connection for diabetes mellitus The appellant contends that his diabetes mellitus could be related to service. In a statement received by VA in April 2017, he stated, "... as most medical researchers know that diabetes has many ways, as many disease[s] do, of developing over extensive periods of time. Diabetes isn't an overnight effect but rather an established long term effect in many cases, set off over an extensive period of time based on condition experienced during excessive military training and service. ... With all of this being said, there is no military diagnosis that can professionally and fairly say that anyone's condition wasn't a result of various situations faced during military training and service." The question for the Board is whether the appellant has a current diabetes mellitus diagnosis that began during a period of ACDUTRA or is at least as likely as not related to an injury, event, or disease during a period of ACDUTRA. Initially, the Board notes that the appellant filed his claim in November 2015. As the file contains private medical records which are dated from 1996 to only 2010, there are no current treatment records. In addition, Army Reserve treatment records are absent complaints, findings, or diagnoses of diabetes mellitus. On the Report of Medical Examination in July 1991, fasting glucose was 70 mg/dl. On the Report of Medical History completed by the appellant in conjunction with his July 1991 physical, he denied ever having sugar or albumin in urine. Further, medical treatment records obtained from the Social Security Administration (SSA) indicate that the earliest diagnosis of diabetes mellitus type II was in May 1998. At that time, there was no past medical history and the appellant was not on medication. Fasting Glucose was 138 mg/dl with normal range being between 70 and 120. Even assuming for the sake of argument that the appellant has a current diabetes mellitus type II diagnosis, the evidence of record persuasively weighs against finding that it began during a period of ACDUTRA or is otherwise related to an injury, event, or disease during a period of ACDUTRA. Although the appellant believes that he has diabetes mellitus type II related to a period of ACDUTRA, he not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge and training; and is, thus, outside the competence of the appellant in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board, therefore, reiterates that the evidence of record persuasively weighs against findings that such had its onset or is otherwise related to a period of ACDUTRA. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for diabetes mellitus. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Entitlement to service connection for a disability manifested by seizures The appellant contends that he has seizures that could be related to service. In his April 2017 statement, the appellant he stated, "... seizures are also developed over time due to certain conditions and certain exposures, and may show up under conditions unknown for many years after the initial reason has been gone thru. ... With all of this being said, there is no military diagnosis that can professionally and fairly say that anyone's condition wasn't a result of various situations faced during military training and service." The question for the Board is whether the appellant has chronic seizures that began during a period of ACDUTRA or is at least as likely as not related to an injury, event, or disease during a period of ACDUTRA. The Board concludes that the appellant does not have a current diagnosis of seizures 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). As noted above, as the file contains private medical records which are dated from 1996 to only 2010, there are no current treatment records. In addition, the medical records obtained, including service treatment records, are absent complaints, findings or diagnoses of any seizures. Medical treatment records obtained from the Social Security Administration (SSA) indicate that in September 2001, the appellant specifically denied seizures, fainting, numbness, or confusion. In October 2003 the appellant reported syncopal episodes of unclear etiology. Even assuming for the sake of argument that the appellant has a diagnosis of current, chronic syncope, the evidence of record persuasively weighs against finding that it began during a period of ACDUTRA or is otherwise related to an injury, event, or disease during a period of ACDUTRA. Army Reserve treatment records are absent complaints, findings or diagnoses of any syncope. On the Report of Medical Examination in July 1991, the appellant's neurological health was evaluated as normal. On the Report of Medical History completed by the appellant in conjunction with his July 1991 physical, he denied ever having dizziness or fainting spells, epilepsy or fits, and periods of unconsciousness. To the extent that the appellant believes that he has seizures or syncope related to a period of ACDUTRA, he not competent to provide a diagnosis or a nexus opinion regarding this issue. The issue is medically complex and requires specialized medical knowledge and training. Jandreau, 492 F.3d at 1377 n.4. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for a disability manifested by seizures or syncope is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch, 21 F.4th at 776. 3. Entitlement to service connection for a disability manifested by memory loss The appellant contends that he has memory loss that could be related to service. In his April 2017 statement, the appellant he stated, "Memory loss is a pattern of extensive stress conditions, extreme pressure, extreme mental pressure. These conditions can develop over time due to excessive stress from various training situations. ... With all of this being said, there is no military diagnosis that can professionally and fairly say that anyone's condition wasn't a result of various situations faced during military training and service." The question for the Board is whether the appellant has chronic memory loss that began during a period of ACDUTRA or is at least as likely as not related to an injury, event, or disease during a period of ACDUTRA. The Board concludes that the appellant does not have a current diagnosis of memory loss 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). As noted above, as the file contains private medical records which are dated from 1996 to only 2010, there are no current treatment records. In addition, the medical records obtained, including service treatment records, are absent complaints, findings or diagnoses of any memory loss. Army Reserve treatment records are absent complaints, findings or diagnoses of any memory loss. On the Report of Medical Examination in July 1991, the appellant's neurologic and psychiatric health were evaluated as normal. On the Report of Medical History completed by the appellant in conjunction with his July 1991 physical, he denied ever having loss of memory of amnesia. Although the appellant believes that he has a current diagnosis of memory loss, he is not competent to provide a diagnosis in this case as the issue is medically complex and requires specialized medical knowledge and training. Jandreau, 492 F.3d at 1377 n.4. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for a disability manifested by memory loss is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch, 21 F.4th at 776. 4. Entitlement to service connection for hearing loss The appellant contends that he has hearing loss which could be related to service. In a statement received by VA in April 2017, he stated, "Hearing loss is basically a no-brainer because of the extensive sounds and blast impacts encountered during different phases of basic training or exposure during military services. ... With all of this being said, there is no military diagnosis that can professionally and fairly say that anyone's condition wasn't a result of various situations faced during military training and service." The question for the Board is whether the appellant has a current hearing loss disability that began during a period of ACDUTRA or is at least as likely as not related to an injury, event, or disease during a period of ACDUTRA. The United States Court of Appeals for Veterans Claims (hereafter "the Court"), has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operated to establish when a hearing loss could be service connected. Hensley, 5 Vet. App. at 159. For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. As noted above, the appellant filed his claim in November 2015. As the file contains private medical records which are dated from 1996 to only 2010, there are no current treatment records. In addition, there are no post-service medical records which indicate that the Veteran had auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 or greater; or word recognition scores using the Maryland CNC test of less than 94 percent. Although the appellant believes that he has a current hearing loss, he is not competent to provide a diagnosis in this case or determine the severity if, in fact, hearing loss exists as the issues are medically complex and require specialized medical knowledge and training. Jandreau, 492 F.3d at 1377 n.4. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for hearing loss. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch, 21 F.4th at 776. 5. Entitlement to service connection for a disability manifested by high cholesterol The appellant contends that he has high cholesterol which could be related to service. In a statement received by VA in April 2017, he stated, "There isn't really any instant reaction or reactive way to dismiss, produce or cause high cholesterol. ... With all of this being said, there is no military diagnosis that can professionally and fairly say that anyone's condition wasn't a result of various situations faced during military training and service." As noted above, as the file contains private medical records which are dated from 1996 to only 2010, there are no current treatment records. Even assuming for the sake of argument that the appellant has had high cholesterol at any time since he filed his claim for service-connection, high cholesterol, also referred to as hypercholesterolemia and hypercholesterolemia, is "excessive cholesterol in the blood." Dorland's Illustrated Medical Dictionary 887 (32nd ed. 2012). Significantly, high cholesterol is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.). As noted above, the term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Court 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. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for high cholesterol. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch, 21 F.4th at 776. 6. Entitlement to service connection for hypertension The appellant contends that his hypertension could be related to service. In his April 2017 statement, the appellant he stated, "... and hypertension are also developed over time due to certain conditions and certain exposures, and may show up under conditions unknown for many years after the initial reason has been gone thru. ... With all of this being said, there is no military diagnosis that can professionally and fairly say that anyone's condition wasn't a result of various situations faced during military training and service." For reference purposes, VA considers systolic pressure of 140 mm Hg or more, or diastolic pressure of 90 mm Hg or more, to be indicative of Stage 1 hypertension. See Veterans Benefits Administration (VBA) Training Letter 00-07 (July 17, 2000) (citing to the Sixth Report of the Joint National Committee on Prevention, Detection, Evaluation, and Treatment of High Blood Pressure (1997)). A diagnosis of hypertension requires 2 or more readings on at least 3 different days. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1). The question for the Board is whether the appellant has a current diagnosis of hypertension that began during a period of ACDUTRA or is at least as likely as not related to an injury, event, or disease during a period of ACDUTRA. Initially, the Board notes that the appellant filed his claim in November 2015. As the file contains private medical records which are dated from 1996 to only 2010, there are no current treatment records. In addition, Army Reserve treatment records are absent complaints, findings or diagnoses of hypertension. On the Report of Medical Examination in July 1991, the Veteran had an elevated blood pressure reading of 140/90. On the Report of Medical History completed by the appellant in conjunction with his July 1991 physical, he denied ever having high blood pressure. Further, medical treatment records obtained from the Social Security Administration (SSA) indicate that the earliest diagnosis of hypertension was in May 1998. At that time, there was no past medical history and the appellant was not on medication; his blood pressure reading was 134/98. Even assuming for the sake of argument that the appellant has a current hypertension diagnosis, the evidence of record persuasively weighs against finding that it began during a period of ACDUTRA or is otherwise related to an injury, event, or disease during a period of ACDUTRA. The Board notes that at the time of the elevated blood pressure reading of 140/90 in July 1991, the Veteran was not on ACDUTRA. He had had his annual training that year from March 24, 1991 to April 6, 1991 and did not have another annual training until 1992. Although the appellant believes that he has hypertension related to a period of ACDUTRA, he not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge and training; and is, thus, outside the competence of the appellant in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board, therefore, reiterates that the evidence of record persuasively weighs against findings that such had its onset or is otherwise related to a period of ACDUTRA. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection is warranted for hypertension. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND 1. Entitlement to service connection for nasopharyngeal carcinoma is remanded. The Veteran contends that his nasopharyngeal cancer could be related to service. In a statement received by VA in April 2017, he stated, "There are many reasons for this type of cancer or any type for that matter. It is impossible to diagnose that the situations at camp or service was responsible for this condition. The different situation that each of the soldiers go thru can [a]ffect them differently. The gas chamber, weather conditions and much more, the determination could in many medical situations be proven false that has been stated in your decisions. Cancer has the ability as does many health problems, ... to stay dorm[a]nt for considerable amounts of time before becoming an active stage of cancer. The exposure to toxi[c] conditions can also result in certain delayed reactions especially in the sinus area. ... With all of this being said, there is no military diagnosis that can professionally and fairly say that anyone's condition wasn't a result of various situations faced during military training and service." Information obtained from the Mayo Clinic indicates that in its early stages, nasopharyngeal carcinoma may not cause any symptoms. Possible noticeable symptoms of nasopharyngeal carcinoma include a lump in the neck caused by a swollen lymph node, blood in saliva, bloody discharge from the nose, nasal congestion or ringing in the ears, hearing loss, frequent ear infections, sore throat, and headaches. https://www.mayoclinic.org/diseases-conditions/nasopharyngeal-carcinoma/symptoms-causes/syc-20375529. The appellant's Army Reserve treatment records are absent complaints, findings or diagnoses of nasopharyngeal cancer; however, during the first week of basic training in March 1988, he was seen with complaints of a fever. His sinuses were nontender with percussion, but it appears that his nasal cavity may have been congested. The assessment was viral syndrome (upper respiratory infection). In addition, in April 1990, during another period of ACDUTRA for annual training, the appellant was seen with complaints of cold symptoms of cough off and on since February 1990, somewhat sore throat, but no sinus or nasal discharge. Physical examination was unremarkable except that the appellant's pharynx was red. The assessment was allergies. On the Report of Medical Examination in July 1991, the appellant's nose and sinuses were evaluated as normal. Further, on the Report of Medical History completed by the appellant in conjunction with his July 1991 physical, he denied ever having nose trouble or sinusitis. Medical treatment records obtained from the Social Security Administration (SSA) indicate that the appellant had sinus symptoms in June and August 1996 with assessment of probable sinusitis as well as post-nasal drip in June 1997 and March 1999. In May 2001, the appellant reported a headache on right side for two weeks; diagnosis was sinusitis. In September 2001, the appellant presented for discussion of treatments for newly-diagnosed nasopharyngeal carcinoma at which time he reported that he was in his normal state of health until three to four months prior when he noted that onset of right sided headaches, right scalp soreness with right nasal congestion, and right nose bleed as well as some decreased hearing on the right side with right ear fullness. He was seen by a physician who diagnosed him as having sinusitis. A CT scan done in March was normal. He went three months without improvement of symptoms and was referred to an ENT where a repeat CT scan was done in August 2001 which demonstrated a nasopharyngeal mass extending into the ethmoid sinus and into the cavernous sinus. This was followed by an MRI and a biopsy which revealed poorly differentiated squamous carcinoma. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the appellant's symptoms during periods of ACDUTRA were the initial onset of his nasopharyngeal cancer. The matters are REMANDED for the following action: Schedule the appellant for a VA examination for his nasopharyngeal carcinoma. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is nasopharyngeal carcinoma at least as likely as not related to symptoms noted in March 1988 or April 1990 while the appellant was on ACDUTRA? Provide a rationale to support the opinion. In providing the requested opinion, consider the appellant's description of his in-service and post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.