Citation Nr: 1743772 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 10-43 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1991 to April 1992, January 1997 to September 1997, and March 2003 to February 2004. She had service in the Southwest Asia (Persian Gulf) Theater of Operations. The Veteran also had Reserve service, including periods of active duty for training (ACDUTRA), from 1980 to 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Board remanded this matter in March 2013, May 2014, August 2015 and August 2016, for additional development. The issue for entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is no longer before the Board. The RO granted service connection and awarded the full benefit sought in a May 2017 rating decision, effective October 21, 2008. FINDINGS OF FACT 1. The most probative evidence of record is against a finding that the Veteran has diabetes mellitus causally related to, or aggravated by, active service. 2. The Veteran's diabetes mellitus, type II was not caused or aggravated by an exposure to herbicides or other environment factors while serving in Saudi Arabia, nor is it related to her service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical records have been secured. She has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. First, VA letters issued in December 2008 and April 2013, satisfied the duty to notify provisions with respect to the claim for service connection herein, and notified the Veteran of the factors pertinent to establish said claims. Further, VA has satisfied its duty to assist the Veteran. The claims file includes the Veteran's service records, VA treatment records, and private treatment records, and the Veteran has not indicated that there are additional records to be obtained. Further, the Veteran underwent relevant VA examination in September 2013 October 2015 and September 2016. In addition, VA addendum opinions were provided in July 2014 and February 2016. The Board notes, the accompanying reports reflect that the VA examiners reviewed the Veteran's claims file, recorded her current complaints, conducted appropriate examinations, rendered appropriate diagnoses and opinions consistent with the evidence of record, and provided rationales for the opinions expressed. As such, the Board finds that the VA examination reports, particularly the September 2016 opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also finds that there has been substantial compliance with its August 2016 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, outstanding VA treatment records were obtained and associated with the evidence of record before the Board, and the Veteran was afforded an adequate September 2016 VA examination, and her claim was readjudicated by the RO in a May 2017 Supplemental Statement of the Case. Accordingly, the Board finds that VA has satisfied its duties to notify and assist the Veteran under governing laws and regulations. The Board will therefore review the merits of the Veteran's claim. Legal Criteria- Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2016). Service connection may also be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2016). To establish direct service connection for such a disability, the record must reflect: (1) Competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). Certain chronic diseases (to include diabetes mellitus) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post service (one year for diabetes). 38 U.S.C.A. §§ 1112; 38 C.F.R. §§ 3.307, 3.309(a). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317 Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Unlike service connection on a direct basis, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.317 (c); Gutierrez v. Principi, 19 Vet. App. 1 (2004). For purposes of § 3.317, qualifying chronic disabilities include: (1) an undiagnosed illness; and (2) a medically unexplained chronic multi-symptom illness such as (but not limited to) chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317 (a)(2). Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Analysis Due to Environmental Exposure The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has set forth alternative theories of entitlement. Primarily, she alleges she was exposed to environment factors such a herbicides or depleted uranium while serving in Dhahran, Saudi Arabia, from September 1991 through March 1992 and is entitled to consideration of her claim under the presumption provisions of 38 U.S.C.A. § 1116. See, VA Form 21-4138 received May 2013. She reported she was aware of certain environmental issues that were in the area and believes she was exposed to agents that caused her diabetes. Service Treatment Records from September 1991 through April 1992, from January 1997 to September 1997 and from March 2003 to February 2004 do not show a diagnosis or treatment for diabetes. During active service the Veteran's blood glucose level was 111 in November 2002 with urine being negative for sugar. She had reading a of 127 in May 2003. Here urine was again negative for glucose. During a January 2004 separation examination from the Veteran's last period of active service, she was instructed to follow up with VA due to "slightly elevated blood sugar'. Treatment records from Miami VA Medical Center, from June 2008 through October 2008, reflect that a diagnosis of diabetes mellitus was not made until June 2008. A May 2013 private treatment records from Dr. L.M. notes that the Veteran had no difficulty sleeping, fatigue, fever or malaise, no night sweats, weakness, no weight gain or weight loss. The Veteran had no chest tightness, cough, dyspnea, snoring or wheezing. With respect to her contention that her diabetes was caused by herbicides or other environmental factors in service, the Board notes that the medical opinion weighs against that contention. The Board notes that the February 2016 VA examiner noted that the diagnosis of diabetes mellitus, type II in a veteran who served in the Republic of Vietnam creates a presumptive service connection. However, the examiner opined that the Department of Veterans Affairs and or Institute of Medicine lacks sufficient objective, medically-based, clinical evidence to support a nexus between occupational exposures incurred by veterans deployed to Southwest Asia Theater during 1997 through 2004 with the development of diabetes mellitus, type II. The examiner further noted that the Veteran was diagnosed in 2008 and that approximately 8 percent of the world adult population in 2011 was affected with diabetes mellitus, type II because of deficient insulin. Similarly, the September 2016 VA examiner reviewed the entire claims file and noted that although diabetes has been shown to be considered presumptive to herbicides, such as those used in the Republic of Vietnam, there is no such evidence that the Veteran was exposed to any similar environmental factors to which her diabetes mellitus could be attributed to. The examiner opined that it is at least likely as not that the Veteran's diabetes mellitus, type II was either incurred in, or is otherwise related to the Veteran's active duty service, to include environmental and chemical exposure in Saudi Arabia and Bosnia. Therefore, the Board finds that the pertinent evidence of record failed to show that the Veteran's diabetes mellitus, type II is related to or due to her an herbicide exposure. Direct Service Connection The Veteran contends that she developed diabetes mellitus, type II following her service in the Gulf War, in Daharan, Saudi Arabia and Bosnia. The post-service clinical evidence is clear that the Veteran was first diagnosed with diabetes mellitus, type II in June 2008, four years after termination of her active service in 2004. Service treatment records from November 2002 showed blood glucose reading of 111 and readings of 127 was noted in 2002 and 2003. With respect to the Veteran's contention that her diabetes mellitus, type II is related to her active military service, the Board notes that the September 2016 examiner reviewed the entire claims file, including the STRs, private and VA treatment records and previous examination reports. The examiner opined that while the STRs dated in November 2002 showed a fasting glucose level of 111, however, that is not diagnostic of diabetes mellitus, type II. Similarly, the examiner opined that for the slightly elevated blood glucose of 127, dated in May 2003, that "single elevation" of the blood sugar of 127, however, is not diagnostic of diabetes mellitus, type II, finding that the lab work done at the West Palm Beach VA, dated in November 2004 showed normal blood glucose of 100mg/dl. The examiner concluded that it is less likely than not (less than 50 percent probability) that the claim disability incurred in or caused by the claimed in-service injury or illness. Thus, the evidence weighs against the claim for direct service connection. The record does not show (and it is not alleged) that diabetes mellitus was manifested in service or during the Veteran's first post service year. Notably, type II diabetes mellitus was first diagnosed in 2008, more than four years after service. Consequently, service connection for such disability on the basis that it became manifest in service, or on a presumptive basis (for diabetes as a chronic disease under 38 U.S.C.A. § 1112; 38 C.F.R. § 3.309 (a)) is not warranted. Secondary Service Connection The Veteran further contends that her diabetes mellitus, type II is secondary to her service-connected major depressive disorder, hypertensive vascular disease and or valvular heart disease. With respect to the Veteran's contention that her diabetes was caused or aggravated by her service-connected depressive disorder, hypertensive vascular disease, and or valvular heart disease, the Board notes that the February 2016 examiner noted that current occupational medical and internal medicine literature lacks sufficient objective, medically-based, clinical evidence to support a nexus between the development of diabetes mellitus, type II and her service-connected disabilities. The examiner opined that the medical literature does not support diabetes mellitus, type II is caused by or due to the result of depression, hypertension, or service-connected heart disease. Additionally, the September 2016 examiner noted that there is no medical documentation of her baseline disease of her diabetes mellitus when she was diagnosed in 2008. The examiner opined that there is no evidence that the Veteran's diabetes mellitus is aggravated beyond the natural progression by her service-connected disabilities. The examiner further opined that diabetes mellitus, type II is less likely than not (less than 50% probability) is aggravated by her service-connected depression, hypertension, and or tricuspid and mitral valve regurgitation, alone or in combination. The Board finds that VA's development in this matter has been exhaustive, and that the Veteran is not shown to have been exposed to an herbicide agent, including Agent Orange, while serving in Saudi Arabia and Bosnia. Hence, she is not entitled to consideration of her claim under the presumption provisions of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309 (e). The Veteran has not provided any evidence to show that her type 2 diabetes mellitus is somehow otherwise related to her service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There is no indication in her post service medical records that her diabetes mellitus, diagnosed more than four years after service, is directly related to service. Such a lengthy interval between service and the earliest post service clinical documentation of diabetes is of itself a factor for consideration against a finding of service connection for the disease. The Board has also considered the Veteran's secondary service connection theory of entitlement but finds that there is no competent evidence that her type II diabetes mellitus is proximately due to or the result of her service-connected disabilities (depressive disorder, hypertensive vascular disease, and or valvular heart disease). She has not submitted any medical opinion or medical literature supporting her theory of entitlement. All the competent (medical) evidence in the record regarding her diabetes mellitus and service-connected disabilities state it is less likely as not (less than 50 percent probability) caused by or a result of her service-connected disabilities. More recently, the September 2016 examiner provided detailed rationale for the opinion, citing to supporting factual data. The opinion is probative evidence in the matter. Because there is no probative evidence to the contrary, it is persuasive. The preponderance of the evidence is against the Veteran's claim of service connection for type II diabetes mellitus, under either a direct or a secondary service connection theory of entitlement. Accordingly, the benefit-of-the-doubt rule does not apply; the appeal in this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER Service connection for type 2 diabetes mellitus, to include as due to exposure to environmental factors such as herbicides other exposures during Persian Gulf service, or as secondary to service-connected disabilities, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs