Citation Nr: 18142869 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 12-00 655 DATE: October 17, 2018 ORDER Entitlement to service connection for diabetes mellitus II (diabetes), to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran’s diabetes did not have its onset during active service or within one year of separation from service, and is not otherwise related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for diabetes, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1990 to July 1992. This matter comes before the Board from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2014 decision, the Board denied service connection for diabetes. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court, in a September 2015 Order, vacated and remanded the Board’s decision. In December 2015, the Board remanded the appeal. Analysis At the outset of this analysis, the Board notes that the parties to the JMR did not object to or otherwise find insufficient the Board’s general recitation of the facts or procedural history. Rather, the parties to the JMR determined that the Board erred in relying on an inadequate VA examination, conducted in October 2010. The Veteran has since obtained Veterans Health Administration (VHA) expert opinions. The June 2018 VHA opinion is adequate to decide the claim. In a September 2018 Informal Hearing Presentation (IHP), the Veteran asserts that the June 2018 VHA expert failed to include favorable scientific literature that supports the claim, specifically as study addressing intake of high caloric diet by camels. See September 2018 Veteran’s Informal Hearing Presentation. The Veteran’s argument is unpersuasive. Notably, a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in reviewing the record and supporting his or her opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). Here, an assertion that an examiner failed to address a study that does not pertain to humans, and therefore has no bearing on this case, does not meet this high standard. Service connection may be granted for a disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. 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). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic diseases, including diabetes, service connection can be presumed without showing evidence of such disease having been incurred during a period of service, if the disease has manifested to a degree of 10 percent or more within one year from the date of separation. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic diseases have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has a current diagnosis of diabetes. See October 2010 and February 2016 VA Examinations. Therefore, the first element of service connection is established on a direct and secondary basis. Regarding the second element of direct service connection, in-service occurrence of a disease or injury, the Board notes that the Veteran’s service treatment records (STRs) are silent as to any diagnosis or treatment of diabetes. In this regard, the Veteran asserts his diabetes manifested during service in the form of chills, tremors, high body temperature and sweats from 1991 until the present. Critically, on his January 1992 Medical Evaluation Board (MEB) report, while endorsing stress-related shaking of his hands and feet, the Veteran specifically “denie[d] a personal or family history of diabetes.” Moreover, he specifically denied diabetes or symptoms of diabetes in his 1993 VA Persian Gulf registry examination. See May 1993 VA Persian Gulf Registry. The Veteran is not competent to determine whether in-service symptoms he may have experienced, such as chills and sweating, were an initial manifestation of his diabetes. Notably, clinicians providing care for him at that time diagnosed him with a heat stroke, with no indication of any suspicion of diabetes, and again, the Veteran himself denied any diabetes symptomatology in 1992. In this regard, while the Veteran asserted on his January 2012 VA Form 9 that “[t]here is no history of DMII in my family,” he endorsed a family history of diabetes (father) in an October 1990 optometric examination. Yet, less than one year later, Veteran denied any family history of diabetes on his January 1992 MEB medical examination and separation examination. Then in 1996, Veteran noted a family history of diabetes in seeking VA treatment. See May 1996 VA Ambulatory Primary Care Assessment. Given his inconsistent statements, the Board finds his report of an in-service diabetic symptoms that continued until the present lack credibility. The Board notes that the Veteran evidenced an abnormal glucose value reading of 169 during a July 1991 hospitalization. He asserts that he fasted for this specific test. See February 2018 Informal Hearing Presentation. However, the June 2018 VHA expert opined that the July 1991 elevated glucose value reading was unlikely a fasting test, due to the late hour of the test completion (almost 2pm) and other normal glucose ranges during the same timeframe. The Board affords more probative value to the determination in this regard from the VHA expert than the to the Veteran, who has presented contradictory statements in conjunction with his claim for benefits, as noted above. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating it is “the responsibility of the trier of fact fairly to…draw reasonable inferences from basic facts to ultimate facts”); Bastien v. Shinseki, 599 F. 3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). Regarding the final element of direct and secondary service connection, nexus, the only competent opinions are against the claim. In this regard, the Board finds that the October 2010 and February 2016 VA opinions, as well as the November 2016 VHA expert opinion against the claim are inadequate and will not be further addressed. The June 2018 VHA expert, an endocrinologist, determined that it was not as least as likely as not that the Veteran’s diabetes had its onset in service or within one year of separation from service or was otherwise related to service, to include as a result of consumption of meals-ready-to-eat (MREs). (In this regard, the Veteran recently asserted his body became overwhelmed by eating MREs and he could not digest the MREs correctly due to his age and civilian diet. See February 2018 Informal Hearing Presentation.) As rationale, the expert noted the Veteran has many risk factors for developing diabetes, including family history, obesity and his ethnicity, and highlighted that there is no medical literature supporting that the intake of MREs directly causes diabetes. She emphasized that the Veteran’s in-service heat stroke symptom and reported shaking of the extremities were not consistent with diabetes onset. Instead, she noted that the heat stroke symptoms were consistent with an infection as opposed to diabetes, and that there was no indication of record any association of his shaking to blood sugar values or food intake. She reviewed each of the Veteran’s documented glucose readings beginning in 1991 and determined the diagnostic criteria for diabetes were not met prior to 1996, well past the one-year presumptive period for service connection. Notably, the Veteran has consistently reported a 1996 onset date for his diabetes. Regarding secondary service connection, the Veteran is service-connected for asthma and low back pain, and he asserts that obesity stemming from these disabilities resulted in his diabetes. The Board notes that obesity is not a disease or injury under VA’s laws and regulations and is not service-connected on a direct basis. See VAOPGGCPREC 1-2017. However, obesity may be considered an “intermediate step” between a service-connected disability and a current disability that allows for a service-connection on a secondary basis under 38 C.F.R. § 3.310(a). Specifically, the Board must determine (1) whether the Veteran’s service-connected asthma and/or chronic low back pain disabilities caused the Veteran to become obese; (2) if so, whether his obesity, as a result of his asthma and/or chronic low back pain, was a substantial factor in causing his diabetes; and (3) whether his diabetes would not have occurred but for his obesity caused by his bronchial asthma and chronic low back pain. If the above obesity questions are answered in the affirmative, the Veteran’s diabetes may be service-connected on a secondary basis. See VAOPGCPREC 1-2017. Here, element (1) is not met, as the June 2018 VHA expert opined that it was less likely than not (less than 50% probability) that the Veteran’s service-connected disabilities caused him to become obese. The expert reasoned that the Veteran was considered obese, with a body mass index of 30.3 Kg/m2 in 1987, prior to his active duty service and onset of his service-connected disabilities, and since multiple other risk factors contributed to his obesity, any weight gain during service could not be attributed to his service-connected disabilities. Notably, the expert provided an adequate rationale for her inability to opine without resorting to speculation (multiple possible etiologies with none more prevalent than another). The Board finds the June 2018 VHA expert’s opinion is persuasive and of great probative value, given her expertise in endocrinology, her review of the relevant medical information in this case, and her reasoned opinions. There are no competent medical opinions in favor of the claim. The Board notes that the parties to the JMR have not disputed the Board’s prior finding that the Veteran is not competent to address the etiology of his diabetes. Accordingly, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria L. Stephens, Associate Counsel