Citation Nr: 24029719 Decision Date: 09/03/24 Archive Date: 09/03/24 DOCKET NO. 19-27 787 DATE: September 3, 2024 ORDER Entitlement to service connection for diabetes mellitus, type II to include as due to herbicide exposure is denied. Entitlement to service connection for a heart condition, claimed as cardiac arrhythmia, as due to herbicide exposure and secondary to diabetes mellitus, type II is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had diabetes mellitus at any time during or approximate to the pendency of the claim. 2. The Veteran's heart condition is not secondary to a service-connected condition, and is not otherwise related to an in-service injury or disease, to include exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a heart condition, claimed as cardiac arrhythmia, as due to herbicide exposure and secondary to diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2022. A transcript of the hearing is associated with the electronic claims file. In July 2023, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. VA regulations state that a Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). Prior to August 2022, service connection was presumed for a Veteran who has been exposed to an herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for the following: amyloidosis; chloracne or other acneform diseases consistent with chloracne; diabetes mellitus type II; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft tissue sarcoma. 38 C.F.R. § 3.309 (e). The Honoring our PACT Act of 2022 added diseases, including hypertension, to the list of diseases presumed to be associated with exposure to herbicide agents. See Honoring our PACT Act of 2022, H.R. 3967, 117th Cong. § 404 (2022). The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 ("PACT Act"), which is implemented, in part, in 38 U.S.C. § 1168, requires VA to schedule certain veterans for an examination and request a medical opinion for certain non-presumptive diseases if they engaged in a toxic exposure risk activity (TERA). Section 1168 requires VA to "obtain a medical opinion.... as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity." 38 U.S.C. § 1168 (a)(1)(B). Unlike general opinions for service connection, TERA opinions must consider "the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran." 38 U.S.C. § 1168 (a)(2)(A) and (B). VA obtained a TERA opinion in Mach 2024. 1. Entitlement to service connection for diabetes mellitus, type II to include as due to herbicide exposure The Veteran contends that he has diabetes mellitus, type II due to exposure to herbicides during active service. The question for the Board is whether the Veteran has a current disability that began during service or is approximately 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 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). An October 2016 private treatment record notes a new onset of diabetes. A June 2017 VA treatment record shows the Veteran has a history of prediabetes. The Veteran was afforded a VA examination in October 2017. The examiner found the Veteran's symptoms do not meet the criteria for a diagnosis of diabetes. The examiner noted the Veteran has some history of elevation of sugars but not diagnostic of diabetes. The Veteran was temporarily put on metformin during hospitalization for a pacemaker. The Veteran has now discontinued metformin and just watches his diet. He has not been diagnosed with diabetes to date based on currently available medical records. A March 2018 VA treatment record notes the Veteran has a history of type 2 diabetes on metformin. At the August 2022 Board hearing, the Veteran stated he took metformin but was no longer taking the medication. VA treatment records from March 2018 to April 2024 note the Veteran has prediabetes. A June 2019 VA treatment record notes the Veteran does not carry a diagnosis of diabetes. The March 2024 VA examiner found there is no official diagnosis of diabetes. An addendum opinion was obtained in April 2024. The VA examiner determined that, while temporary prescription of metformin due to previously elevated blood sugars has been referenced, prescription for metformin alone is not diagnostic for type II diabetes. A history of prediabetes is documented, however, no objective indicators, specifically, lab work diagnostic of type II diabetes from October 2016 to present are located for review in currently available c-file medical history. Hemoglobin A1C levels of 6.5 or above on two separate occasions, or fasting blood glucose levels diagnostic for type II diabetes, are not located for review in the current c-file record. Therefore, a diagnosis of diabetes cannot be rendered without prior or current lab work which meets the criteria of such. While some VA treatment records note a history of diabetes mellitus, there is no indication that any diagnostic tests to confirm the presence of diabetes mellitus was confirmed. Instead, the statement appears to be based on the use of medication, which is inconsistent with VA examinations and lab work that do not show a definitive diagnosis of diabetes mellitus. Consequently, the Board gives more probative weight to the October 2017, March 2024, and April 2024 VA examiners' findings. While the Veteran believes there is a current diagnosis of diabetes mellitus, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for diabetes mellitus is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to service connection for a heart condition, claimed as cardiac arrhythmia, as due to herbicide exposure and secondary to diabetes mellitus, type II The Veteran contends that his heart condition is due to active service. Alternatively, he contends his heart condition is due to exposure to herbicides or secondary to diabetes mellitus. See Transcript of August 2022 Board Hearing at 11. The question for the Board is whether the Veteran has a current disability that began during service or is approximately at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of implanted cardiac pacemaker, and evidence shows that exposure to herbicides occurred, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of implanted cardiac pacemaker began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with implanted cardiac pacemaker until September 2016, over four decades after separation from service. The Veteran has not asserted he has experienced symptoms of syncope or a heart condition since service. The October 2017 VA examiner opined that the Veteran's implanted cardiac pacemaker is not at least as likely as not related to an in-service injury, event, or disease, including exposure to Agent Orange. The rationale was the Veteran developed a heart block (arrhythmia) that required a pacemaker. This is not a coronary artery disease or ischemic heart disease diagnosis. There are no currently available medical records found supporting a diagnosis of coronary artery disease or ischemic heart disease which are the presumptive service-connected heart diagnoses. Status post pacemaker insertion secondary to heart block alone has not been determined to be secondary to Agent Orange exposure. The March 2024 VA examiner opined the Veteran's claimed heart condition is less likely than not due to service as there is a lack of substantiating evidence supporting a nexus between the current diagnosis of status post implanted pacemaker and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. The March 2024 VA examiner opined the Veteran's claimed heart condition is less likely than not due to the indicated toxic exposure risk activity (TERA). The rationale was that there is a lack of substantiating evidence supporting a nexus between the current diagnosis of status post implanted pacemaker and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. In an April 2024 addendum opinion, the VA examiner stated it is less likely than not that the Veteran's cardiac condition is due to or related to TERA, the conceded exposure to Agent Orange herbicide in service. Current medical evidence does not support a causal relationship whereby prior Agent Orange herbicide exposure would cause heart block with pacemaker insertion. Certain type of heart disease, to include those which qualify as ischemic heart disease have been studied and proven due to herbicide exposure. However, heart block is not shown in the literature to be caused by herbicide exposure. The Board finds that the VA medical opinions considered an accurate history, were definitive and were supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the VA medical opinions are entitled to great probative weight. Implanted cardiac pacemaker and heart block are not included in the list of conditions that are presumed to be associated with exposure to herbicide agents in 38 C.F.R. § 3.309(e). Accordingly, entitlement to service connection is not warranted for a heart condition on a presumptive basis. The Veteran believes the claimed heart condition is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that the Veteran has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions. Turning to secondary service connection, the Board concludes that, while the Veteran has a current disability of implanted cardiac pacemaker, the Veteran is not service connected for diabetes mellitus. Therefore, secondary service-connection is not warranted at this time. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for a heart condition is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia Palacios-Peters, 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.