DIABETES MELLITUS

B. G. LEMOINE · 2022 · Case ID: 22026596

DENIED

Summary

The Veteran served from November 1968 to July 1970. This case involves appeals for service connection for diabetes mellitus, peripheral neuropathy of the bilateral lower and upper extremities, and a pulmonary lung condition. The Veteran sought to reopen the diabetes claim, asserting presumptive service connection due to alleged Agent Orange exposure while serving aboard the USS Lloyd Thomas off the coast of Vietnam. However, the Board found that the newly obtained service records, including ship logs and command histories, did not support the claimed exposure event, as the USS Lloyd Thomas's deployments did not align with the Veteran's claimed presence in Vietnam or its territorial waters. The Board concluded that the new evidence was not relevant or material, and the prior denial of diabetes service connection remained final. For peripheral neuropathy, the Board denied service connection for the upper extremities, finding no current diagnosis or functional impairment. For the lower extremities, the Board found the evidence weighed against a nexus to service, noting the neuropathy was related to diabetes mellitus, which itself was not service-connected. The Board also denied service connection for a pulmonary lung condition, citing a lack of in-service symptoms or diagnosis, and finding the Veteran's smoking history to be a more significant risk factor for COPD than any alleged asbestos exposure. The Board found the February 2022 VA examination report persuasive, which opined that the COPD was not likely related to service.

Rationale

New and material evidence did not raise a reasonable possibility of substantiating the claim.; Service department records did not support claimed herbicide exposure.; The petition to reopen the claim for diabetes mellitus was denied.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

15-38 359

Full Decision Text

Citation Nr: 22026596
Decision Date: 05/05/22 Archive Date: 05/05/22

DOCKET NO. 15-38 359
DATE: May 5, 2022

ORDER

The petition to reopen the previously denied claim for service connection for diabetes mellitus is denied.

Service connection for peripheral neuropathy of the bilateral lower extremities is denied.

Service connection for peripheral neuropathy of the bilateral upper extremities is denied.

Service connection for a pulmonary lung condition is denied.

FINDINGS OF FACT

1. A September 2012 rating decision denied the Veteran's petition to reopen the previously denied claim for service connection for diabetes mellitus; the Veteran did not timely appeal the denials; new and material evidence was not received within the one-year appeal period following issuance of the rating decision; and relevant personnel records were not received.

2. Evidence received since the September 2012 rating decision does not raise a reasonable possibility of substantiating the claim for diabetes mellitus.

3. The Veteran's peripheral neuropathy of the bilateral lower extremities is not secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease.

4. The evidence of record persuasively weighs against finding that the Veteran has had peripheral neuropathy of the bilateral upper extremities at any time during or approximate to the pendency of the claim.

5. The evidence of record persuasively weighs against finding that the Veteran's pulmonary lung condition began during active service, or is otherwise related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria to reopen the claim for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for service connection for a pulmonary lung condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1968 to July 1970.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Board previously remanded these issues for further development in August 2018.

New and Material Evidence

1. The petition to reopen the previously denied claim for service connection for diabetes mellitus is denied.

The Veteran seeks to reopen the claim for service connection for diabetes mellitus. See November 2014 VA Form 21-526EZ. The Veteran has asserted that service connection is warranted based on the presumption of service connection for diabetes mellitus as due to herbicide agent exposure. Further, the Veteran reported that he served aboard the U.S.S. Lloyd Thomas off the coast of Vietnam. He contends that on one occasion when his ship was docked at Da Nang Harbor for two to three days, and he went ashore to get supplies. See September 2005 VA Form 21-4138.

In general, a finally disallowed claim will be reopened when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a).

When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of
. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a).

When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. at 117. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Notwithstanding the above, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. The examples of records that fit within the definition of "relevant official service department records" includes "service records that are related to a claimed in-service event, injury, or disease." 38 C.F.R. § 3.156 (c)(1)(i).

The plain language of the regulations makes clear that this provision does not apply where, at the time of the prior decision, the records were not "related to [any] claimed in-service event, injury, or disease." The term "relevant," as used in 38 C.F.R. § 3.156 (c)(1), means noncumulative and pertinent to the matter at issue in the case. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). Where the newly obtained records do not remedy the defects of the prior claim and contain facts that were never in question, they are not "relevant" within the meaning of 38 C.F.R. § 3.156 (c)(1).

In this case, the Veteran initially sought service connection for diabetes mellitus due to Agent Orange exposure while serving aboard the USS Lloyd Thomas. See August 2005 VA Form 21-526. In a September 2005 statement, the Veteran indicated that he had service in the waters off of Vietnam from November 1969 to June 1970. During that time, the Veteran reported that he went onshore to obtain supplies, and the ship was docked in Da Nang harbor for 2 to 3 days.

Service connection for diabetes mellitus was denied in a June 2006 rating decision on the basis that a causal nexus was not shown and the presumption of herbicide agent exposure was not applicable. The evidence of record at the time of the denial included the Veteran's statements, service treatment records, service personnel records, private treatment records and the October 2005 Agent Orange examination. The Veteran did not initiate an appeal of this decision. New and material evidence was not received within a year of the July 2006 notice of the rating determination. The determination became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011).

The Veteran filed a claim to reopen the claim for service connection for diabetes mellitus in September 2011. In a September 2012 rating determination, the RO considered the evidence of record at the time of the prior rating decision and the Veteran's September 2011 claim to reopen. The RO found that new and material evidence had not been submitted to reopen the claim for diabetes mellitus. The Veteran did not initiate an appeal of this decision. New and material evidence was not received within a year of the determination, and the determination became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103.

The Veteran sought to reopen the claim for service connection
2011. In a September 2012 rating determination, the RO considered the evidence of record at the time of the prior rating decision and the Veteran's September 2011 claim to reopen. The RO found that new and material evidence had not been submitted to reopen the claim for diabetes mellitus. The Veteran did not initiate an appeal of this decision. New and material evidence was not received within a year of the determination, and the determination became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103.

The Veteran sought to reopen the claim for service connection for diabetes mellitus in November 2014.

Evidence associated with the claims file since the September 2012 rating determination includes development related to herbicide agent exposure. Notably, pursuant to the Board's remand, the AOJ conducted development consistent with the holding in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) and the Blue Water Navy Vietnam Veterans Act of 2019 to determine whether the Veteran served within the territorial waters of the Republic of Vietnam to warrant presumptive exposure to herbicide agents.

The development included obtaining logbooks and records for the USS Lloyd Thomas for the periods from April 1969 to December 1969, and from December 1969 to July 1970. The logbooks indicated that the USS Lloyd Thomas was primarily at the Naval Station in Newport, Rhode Island. In addition, the USS Lloyd Thomas also traveled and was stationed at Florida, Cuba, the Atlantic Fleet Weapons/Culebra Island, Maryland, New York, California, Hawaii, and the Mid-Pacific Operational Area.

In addition, a professional researcher from the Military Records Research Center completed comprehensive research on the Veteran's claimed herbicide exposure while assigned to USS Lloyd Thomas from April 1969 to July 1970. See January 2022 records research response. The sources use in the comprehensive search included the 1969 and 1970 command history reports submitted by the USS Lloyd Thomas. However, the research indicated that there was no evidence to support the claimed exposure event. Although the USS Lloyd Thomas deployed while the Veteran was aboard, the evidence did not support the Veteran setting foot in the Republic of Vietnam. Further, the USS Lloyd Thomas did not travel up the inland waterways, in the territorial waters, or within 12 nautical miles of the Republic of Vietnam while the Veteran was aboard the USS Lloyd Thomas.

A January 2022 Herbicide Exposure Verification Memo concluded that exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23.

The initial question for the Board is whether the newly associated evidence, to include logbooks and command histories, presents an exception to the finality of the September 2012 rating decision under the regulation for relevant service department records. 38 C.F.R. § 3.156 (c)(1)(i). As noted, the Veteran's herbicide agent exposure cannot be conceded based on the Veteran's personnel records. The research did not suggest that there was herbicide agent exposure based on being in territorial waters, inland waterways, or within 12 nautical miles of the Republic of Vietnam. There is no documentation in the record indicating that there was any other method of exposure. In essence, the newly obtained records do not remedy the defects of the prior claim because they do not establish herbicide agent exposure. Thus, the newly-associated service personnel records are not "relevant" within the meaning of 38 C.F.R. § 3.156 (c)(1). Accordingly, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156 (c) is not required based upon the additionally-received service department records.

Accordingly, the dispositive question is whether there has been new and material evidence received since the final September 2012 rating decision in order to reopen the claim. Evidence associated with the claims file since the final rating determination includes the Veteran's statements, VA treatment records, and the above referenced personnel records. As noted previously, the personnel records are not relevant and do not establish herbicide agent exposure. None of the other new evidence establishes herbicide agent exposure. The Veteran's statements as to any herbicide agent exposure in service is redundant of the evidence previously of record. Further, the Veteran submitted a February 2017 statement for disabilities secondary to service-connected disabilities where he wrote "diabetes: erectile dysfunction." The Board notes that neither diabetes mellitus nor erectile dysfunction are service-connected disabilities. As such, the evidence does not address the causal nexus necessary to reopen the claim. The newly associated evidence does not otherwise link the Veteran's diabetes mellitus to active service. Accordingly, the new evidence does not raise a reasonable possibility of substantiating the claim and is not sufficient to reopen the previously denied claim.

In summary, the Veteran was most recently denied reopening of the claim for entitlement to service connection for diabetes mellitus in the final September 2012 rating decision. The additional personnel record associated with the claims file is not relevant and is not an exception to the finality of the September 2012 rating decision. Further, evidence received since the rating decision does not address causal nexus and does not raise a reasonable possibility of substantiating the previously denied claim.

Accordingly, new and material evidence to reopen the claim for service connection for diabetes mellitus has not been received. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine, but it is not for application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The petition to reopen the claim for service connection for diabetes mellitus is denied.

Service Connection

2. Service connection for peripheral neuropathy of the bilateral lower extremities is denied.

3. Service connection for peripheral neuropathy of the bilateral upper extremities is denied.

The Veteran seeks service connection for peripheral neuropathy of the bilateral lower and upper extremities as secondary to diabetes mellitus. See January 2017 and August 2018 VA Form 21-526EZ.

Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection.

Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.

The question for the Board is whether the Veteran has a current disability that is proximately due to, or aggravated beyond its natural progress by a service-connected disability.

In March 2010 VA treatment records, the Veteran was noted to have complaints of burning feet and a diagnosis of diabetic neuropathy of the bilateral lower extremities. In May 2015 VA endocrinology consultation, the neurological examination showed a lack of sensation to vibration bilaterally in his toes and feet, fine touch decreased bilaterally in the toes, ankle reflexes were absent, and extensive edema was present in the bilateral lower extremities. However, the finger sensation was intact and upper extremity reflexes were normal.

Initially, the Board concludes that the Veteran does not have a current diagnosis of peripheral neuropathy of the bilateral upper extremities 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). Despite consistent treatment during the pendency of this appeal for both his diabetes mellitus and peripheral neuropathy of the bilateral lower extremities, the treatment records do not contain a diagnosis related to the peripheral neuropathy of bilateral upper extremities. Further, the Veteran has not asserted, and the evidence does not otherwise show any functional impairment of earning capacity related to the claimed peripheral neuropathy of
extremities 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). Despite consistent treatment during the pendency of this appeal for both his diabetes mellitus and peripheral neuropathy of the bilateral lower extremities, the treatment records do not contain a diagnosis related to the peripheral neuropathy of bilateral upper extremities. Further, the Veteran has not asserted, and the evidence does not otherwise show any functional impairment of earning capacity related to the claimed peripheral neuropathy of bilateral upper extremities. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

While the Veteran believes he has a current diagnosis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body 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 contemporaneous clinical findings.

As to the peripheral neuropathy of the bilateral lower extremities, the persuasive evidence weighs against finding that the Veteran's disability is proximately due to or the result of, or aggravated beyond its natural progression by any service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The VA treatment records noted that this disability is related to the Veteran's diabetes mellitus. The Veteran does not offer any other theory as to the etiology of his peripheral neuropathy of the bilateral lower extremities. However, as noted above, the Board has denied service connection for diabetes mellitus. As such, there is no basis for service connection secondary to diabetes mellitus, a nonservice-connected disability, as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

In summary, the Board finds that the competent, credible, and probative evidence weighs against finding that the Veteran's peripheral neuropathy of the bilateral lower extremities is proximately caused or aggravated by service-connected disabilities. Further, the evidence persuasively weighs against finding that the Veteran has a diagnosis related to peripheral neuropathy of the bilateral upper extremities at any time during the pendency of this appeal. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

4. Service connection for a pulmonary lung condition is denied.

The Veteran contends that his pulmonary condition is due to asbestos exposure in service. See December 2014 report of general information.

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).

The Veteran is shown to have a military occupation specialty, and rate, ("TA" and "TN") for which "minimal" asbestos exposure is presumed. See VBA Manual M21-1, IV.ii.1.I.3.d. Further, the February 2022 VA examination noted a pulmonary diagnosis of chronic obstructive pulmonary disease (COPD). Thus, the question for the Board is whether the Veteran's current disability began during service or is at least as likely as not related to an in-service injury, event, or disease.

During service, the Veteran reported sharp left sided chest pain in March 1970. The
1163, 1166 -67 (Fed. Cir. 2004).

During service, the Veteran reported sharp left sided chest pain in March 1970. The physical examination was normal, and the impression was neuromuscular pain. The service treatment records are otherwise silent for symptoms, diagnosis or treatment related to a pulmonary condition. Notably, the Veteran's July 1970 separation examination was normal for the lung and chest.

In an October 2005 Agent Orange registry examination, the review of systems noted dyspnea on exertion with no history of asthmatic attacks, COPD, or hemoptysis. The Veteran reported a smoking history with one pack per day for 13 years, ending in 1974. Chest X-rays showed increased lung markings in the base, with fibrotic scarring.

The Veteran was afforded a VA examination in November 2019. In addition, VA obtained opinions in October 2019 and November 2019. The examination reports and opinion noted no diagnosis related to pulmonary conditions. In offering an opinion that there was no etiological link to service, the October 2019 and November 2019 VA examiners relied on the absence of a current diagnosis in their rationale. In this regard, the VA opinions relied on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on an inaccurate factual premise are not probative). Consequently, the Board does not find the October 2019 or November 2019 opinion probative.

In February 2022, the Veteran was afforded another VA examination as to respiratory conditions. The examiner noted a diagnosis of COPD and that pulmonary functioning tests showed moderate obstruction. In the February 2022 opinion, the VA examiner opined that the Veteran's diagnosed COPD is not likely related to service. Notably, the examiner indicated that the Veteran's disability did not have onset in service. In this regard, the medical and service treatment records lack demonstrable evidence of related symptoms or condition during a period of active duty service. Further, the Board notes that the Veteran did not indicate that his pulmonary disability had onset in service.

Moreover, the February 2022 examiner indicated that the diagnosed COPD is not related to any asbestos exposure in service. The examiner explained that asbestos-related lung disease have particular radiological features including opacities with a fine reticular pattern. In addition, nonmalignant asbestos related diseases include hyaline pleural plaques, asbestosis, pleural thickening, and pleural effusion. These specific finding are not shown in this case. Although individuals with asbestosis may develop COPD as a complication, asbestos exposure is not a direct cause of COPD.

Finally, the February 2022 VA examiner identified a higher risk factor from the Veteran's smoke history, as opposed to any alleged asbestos exposure. Notably, the Veteran has a documented history of smoking one pack a day for 13 years. Medical literature showed that cigarette smoking is the most commonly encountered and readily identifiable risk factor for COPD.

Upon review, the Board finds the February 2022 opinion is competent and persuasive evidence against the claim. The examiner has the appropriate training, expertise, and knowledge to evaluate the claimed disability. The examiner provided a thorough and cogent rationale in support of the opinion, which included consideration of the Veteran's reported symptoms, the clinical history, and the medical literature. Furthermore, the examiner also reviewed the entire claims file. The examination reports and opinions provided the Board with a clear description of all relevant data points necessary to evaluate this claim.

There are no competent opinions in favor of the claim. Although the Veteran believes his COPD is related to in-service asbestos exposure, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, an entirely internal disease 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 he has the medical training or credentials to make such a determination
medical literature. Furthermore, the examiner also reviewed the entire claims file. The examination reports and opinions provided the Board with a clear description of all relevant data points necessary to evaluate this claim.

There are no competent opinions in favor of the claim. Although the Veteran believes his COPD is related to in-service asbestos exposure, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, an entirely internal disease 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 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). Consequently, the Board does not find the lay statement is persuasive.

In conclusion, the February 2022 VA examination report is the only competent and persuasive evidence as to the etiology of the Veteran's pulmonary condition. The February 2022 VA examination report and opinion weighs against a nexus between the COPD and active service. Accordingly, the evidence persuasively weighs against the claim, and there is no reasonable doubt to be resolved in this instance. Service connection for COPD is not warranted.

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Vuong, 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.

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