Citation Nr: 18144233 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-10 560 DATE: October 24, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. Obesity, or being overweight, cannot qualify as an in-service event or injury. 2. Diabetes mellitus was not manifest in active service or within one year of service discharge; any current diabetes mellitus is not otherwise etiologically related to such service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from February 1986 to April 2001. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This case was previously before the Board in September 2017, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The Veteran testified before the Board at an October 2016 hearing conducted via videoconference. A transcript of the hearing is of record. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran claims entitlement to service connection for diabetes mellitus, type II, as directly due to active service or, in the alternative, as secondary to his service-connected disabilities. Specifically, he asserts that he was overweight and/or obese throughout service, and was diagnosed with diabetes mellitus shortly following service separation. He also contends that his service-connected orthopedic disabilities prevent him from engaging in physical activity, causing or exacerbating his current obesity which, in turn, caused or aggravated his diabetes mellitus. Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain disabilities, including diabetes mellitus, may be presumed to have been incurred in service where present to a compensable degree within 1 year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the evidence reveals that the Veteran currently suffers from diabetes mellitus, type II, the competent, probative evidence of record does not etiologically link the Veteran’s current disability to his service or any incident therein. Initially, the Board observes VA’s General Counsel has held that obesity cannot qualify as an in-service event because it occurs over time and is based on various external and internal factors, as opposed to being a discrete incident or occurrence, or a series of discrete incidents or occurrences. VAOPGCPREC 1-2017. VA General Counsel opinions are binding on the Board. See 38 U.S.C. § 7104 (c); 38 C.F.R. § 14.507. Therefore, the Veteran’s in-service obesity cannot serve as the sole indication of in-service manifestations of diabetes mellitus. Other than issues with his weight, there is no indication he sought treatment for, or complained of, diabetes mellitus or any associated symptoms during service. Indeed, the Veteran testified that he was not informed of any abnormal urine or blood laboratory testing during service. A March 2001 Report of Medical History, completed by the Veteran at service separation, indicates he affirmatively denied a history of sugar or albumin in the urine. Further, a March 2001 Report of Medical Examination notes a normal endocrine system clinical evaluation at the time of the Veteran’s separation from active service. As such, the Board finds that no diabetes mellitus was manifest during active service. When a disorder is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Alternately, service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board recognizes the Veteran’s testimony that he was diagnosed with diabetes mellitus and placed on medication shortly after service. See Board hearing transcript at 4. However, records as late as June 2002, more than one-year post-service, specifically note the Veteran did not suffer from diabetes mellitus. A January 2011 VA treatment records reveals there to be no known diabetes at the time. Post-service treatment records reveal the Veteran was first diagnosed with diabetes mellitus in approximately shortly before May 2011, approximately 10 years following service separation. While not dispositive of the issue, the Board may and will consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, as diabetes mellitus did not manifest to a compensable degree within one year following service separation, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309(a). Finally, the Board has considered whether service connection may be awarded based on continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as noted above, the Veteran himself affirmatively denied such symptomatology at the time of service separation. Therefore, continuity of symptomatology is not demonstrated, and service connection may not be presumed on this basis alone. The Veteran submitted a private medical opinion in November 2016 from Nurse G.U., in which she opines that it is at least as likely as not that the Veteran’s current diabetes mellitus is secondary to, related to, and/or aggravated by his service-connected bilateral orthopedic disabilities with associated weight gain, obesity, and decreased activity. In this regard, Nurse G.U. notes that the Veteran has been unable to lead an active lifestyle due to his knee and back pain and, since his entrance into service, he has gained approximately 77 pounds to a current weight of 260 pounds, which is considered obese. Nurse G.U. concludes there is current medical literature that supports a causal relationship between diabetes mellitus and the service-connected orthopedic disabilities and weight gain due to his inactivity caused by his service-connected knees and lumbar spine. A VA medical opinion was obtained in October 2017, in which the VA examiner opined that it is less likely as not the Veteran’s diabetes mellitus is caused or aggravated by his service-connected disabilities. In this regard, the VA examiner noted the main risks for the development of diabetes mellitus are a family history and obesity. The examiner noted records indicate both of the Veteran’s parents suffer from diabetes, and also opines that the Veteran’s poor diet is the main cause of his obesity. The VA examiner further stated that even a person with knee and/or back conditions can often exercise (e.g., swimming or water aerobics), and immobility from any cause is neither the inevitable nor unexpected result of reduced mobility. With respect to the conflicting medical opinions of record, the Board has the responsibility to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The Board finds that the November 2016 medical opinion provided by Nurse G.U. is of little probative value. In this regard, Nurse G.U. does not address the Veteran’s weight problems at both service entrance and separation. Further, Nurse G.U. attributes the entirety of the Veteran’s weight gain since service to his inability to lead an active lifestyle due to his service-connected disabilities. However, she does not acknowledge the Veteran’s poor dietary habits or significant weight gain at a time when he denied severe orthopedic pain and was able to engage in physical activity (e.g., playing softball). See, e.g., May 2002 VA comprehensive exam. In comparison, the VA opinion took into account the Veteran’s family history of diabetes, noting both parents suffer from the disease, as well as his poor eating habits, which are noted throughout the medical record. Further, the VA examiner pointed out that persons with orthopedic disabilities are capable of engaging in non-strenuous activities, such as swimming or water aerobics. Therefore, the Board finds the VA opinion more completely addressed the evidence of record and affords significant probative to this opinion. The Board acknowledges that the Veteran himself has claimed that he suffers from diabetes mellitus as directly related to his active service or as secondary to his service-connected disabilities. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., orthopedic pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran’s lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection, and the Board affords these statements little probative value. Latham v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board finds that there is no evidence of diabetes mellitus in service or within a year of service discharge. Furthermore, obesity or being overweight cannot serve as an in-service event or injury on which to base an award of service connection. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran’s current disability and his period of active service or to a service-connected disability. The preponderance of the evidence is against this aspect of the Veteran’s claim. Accordingly, the Board the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel