Citation Nr: 1307050 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-43 940A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected obstructive sleep apnea. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service from July 1976 to July 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. On his substantive appeal, received in October 2010, the Veteran requested a hearing before the Board in Washington, D.C.; such a hearing was scheduled for May 2012, however, prior to the hearing, the Veteran withdrew his request for a hearing, and asked that the Board proceed with appellate consideration. FINDING OF FACT The weight of the competent evidence is in relative equipoise as to whether the Veteran's diabetes mellitus, type II, is etiologically related to his service-connected obstructive sleep apnea. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, his diabetes mellitus, type II, is proximately due to his service-connected obstructive sleep apnea. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for diabetes mellitus, type II, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duties to notify and assist is necessary. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Veteran, in his original claim and throughout the appeal, has limited his appeal to service connection for diabetes mellitus, type II, as secondary to his service connected disabilities including obstructive sleep apnea, chronic obstructive pulmonary disease, and asthma with repeated episodes of bronchitis. In support of his claim, he provided multiple internet articles noting studies published in Diabetes Research and Clinical Practice and American Journal of Respiratory and Critical Care Medicine which found generally that sleep apnea is a known risk factor for diabetes mellitus, type II. Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Disability that is chronically worsened by service-connected disability shall be service connected. See Allen v. Brown, 7 Vet. App. 439 (1995). The medical evidence confirms a current diagnosis of diabetes mellitus, type II. In this regard, according to a January 2003 letter, R.M.S., M.D., a private treating physician, indicated that the Veteran had recently been diagnosed with diabetes mellitus, type II. Additionally, during an August 2009 VA compensation examination, it was noted that the Veteran had been diagnosed with diabetes mellitus, type II, in 2004. While there is some discrepancy as to when the condition was actually diagnosed, a current disorder as required by 38 C.F.R. § 3.303 is clearly shown to have been established in early 2000. As indicated, the Veteran seeks service connection on a secondary basis. He, as a layperson, is competent to provide observable symptoms of his diabetes, but is not competent to provide a medical opinion as to its etiology. See Layno v. Brown, 6 Vet. App. 465 (1994). The possibility of a causal relationship between one disability and another requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder as related to another disorder. Thus, the Veteran's statements relating his diabetes mellitus, type II, to a service-connected disability, are afforded no probative value. Nevertheless, the record does contain medical opinions addressing the etiology of the Veteran's diabetes. In this regard, according to a December 2008 letter, P.C.W, M.D., a treating private physician, stated that the Veteran's diabetes is likely caused by his sleep apnea because it is known that sleep apnea causes higher glucose readings and more difficulty with weight management. On the other hand, the August 2009 VA examiner who continued the diagnosis of diabetes mellitus, type II, concluded that the Veteran's diabetes is not proximately due to his sleep apnea. The examiner felt that the Veteran's obesity is more likely the cause of his diabetes, given his height, weight, and body mass index. The examiner also indicated that the Veteran's diabetes is not likely secondary to, or permanently aggravated by, the Veteran's service-connected sleep apnea. In assessing these medical opinions, the critical question is whether a medical opinion is credible in light of all the evidence. Indeed, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this case, the Board finds the 2008 private opinion and the 2009 VA medical opinion to be equally probative on the question of whether the Veteran's diabetes is etiologically related to his service-connected sleep apnea. Dr. P.C.W. provided rationale to support his conclusion that the Veteran's diabetes is likely caused by his sleep apnea. Notably, this physician practices endocrinology. Moreover, although the medical articles submitted by the Veteran do not pertain specifically to him, they do tend to support the private physician's conclusion as they suggest a relationship between sleep apnea and type II diabetes mellitus. To the contrary, the VA examiner did not attribute the Veteran's diabetes to his sleep apnea, but rather to his obesity, noting his height, excessive weight and body mass index. This, too, is a competent medical opinion supported by rationale. Further inquiry could be undertaken in the form of obtaining additional clarification or an additional VA opinion to resolve the discrepancy. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Thus, with the resolution of all reasonable doubt in the Veteran' favor, the Board finds that he has satisfied his burden of showing that he currently has diabetes mellitus, type II, secondary to his service-connected sleep apnea. 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus, type II, secondary to sleep apnea is granted. ____________________________________________ S. B. MAYS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs