Citation Nr: 18147252 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 12-03 175 DATE: November 5, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II (DMII) is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDING OF FACT The Veteran’s DMII is due to his dishonorable period of active duty service. CONCLUSION OF LAW The criteria for service connection for DMII have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to January 2006. It was determined in a December 2008 Administrative Decision and a May 2009 addendum decision that the period of service between October 30, 1989 and April 6, 1997 was honorable for VA purposes, and the period of service between April 7, 1997 and January 24, 2006 was dishonorable for VA purposes. In August 2016, the Board remanded to the Regional Office (RO) the issues of entitlement to service connection for a psychiatric disorder, to include bipolar disorder with generalized anxiety disorder and posttraumatic stress disorder (PTSD), a right shoulder disability, a back disability, a respiratory disability, to include allergies, a gastrointestinal disability, to include an ulcer, DMII and migraine headaches, for additional development. While on remand, the RO granted the issues of service connection for PTSD, a right shoulder disability, a lumbar strain disability, chronic sinusitis with allergic rhinitis, and gastroenteritis. As these were grants of the full benefits sought, these issues are no longer before the Board. The issues of entitlement to service connection for DMII and migraine headaches have since been returned to the Board. Entitlement to service connection for diabetes mellitus, type II (DMII) Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that his DMII is due to service and that he is entitled to service connection for this disability. Service treatment records (STRs) are silent for treatment or diagnosis of DMII, until the year 2004. The Veteran was diagnosed with DMII in November 2004, during his period of dishonorable active duty service, which was from April 7, 1997 and January 24, 2006. Veterans are not eligible for service connection for disabilities caused by in-service incurrences during dishonorable periods of service. 38 U.S.C. § 5303 (a). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303 (West 2012); 38 C.F.R. § 3.12 (a) (2017). The Veteran was afforded VA examination in March 2017. The examiner opined that his condition was less likely than not incurred in or caused by service. The examiner reasoned that STRs showed treatment for abdominal pain in November 1990; stomach ache and diarrhea in August 1996; and stomach pain again in September 1996. However, the Veteran was not diagnosed with DMII until November 2004. The Veteran was afforded additional VA examination in May 2018. The examiner explained that the Veteran was in the Army from October 1989 to April 1997, and again from April 1997 to January 2006; and he was diagnosed with DMII in November 2004. The Veteran continues to have DMII present; he is taking Insulin. Hence, his claimed DM is at least as likely as not incurred in or caused during service. Although the Veteran is competent to report on experiencing such symptomatology, and he indicated that he believes his DMII symptoms might have been masked for some time because of the intensity of his duties, the March 2017 and May 2018 opinions noting a November 2004 diagnosis are of more probative weight. The opinions provided clear explanations as to why the Veteran’s current DMII is not related to his period of honorable active duty service, but was diagnosed in 2004, during his period of dishonorable active duty service. The opinions of record are the most probative evidence on the question at hand, and they weigh against the claim. The Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for DMII; therefore, the benefit of the doubt provision does not apply. REASONS FOR REMAND Entitlement to service connection for migraine headaches is remanded. The Veteran’s claim for entitlement to service connection for migraine headaches was remanded by the Board in August 2016. The Board’s remand directives included VA examination to the Veteran, and the examiner was to provide an opinion on whether the Veteran’s migraine headaches were related to his military service, or whether his migraine headaches were caused or aggravated by any diagnosed psychiatric disorder, to include his now service-connected PTSD. The Veteran was afforded VA examination for his migraine headaches in March 2017 and May 2018. The March 2017 examiner did not provide an opinion on direct service connection, and the May 2018 examiner stated that she was unable to determine a baseline of severity of the Veteran’s headaches based upon medical evidence, and the evidence provided made it difficult to establish whether the diagnosis was at least as likely as not aggravated beyond its natural progression by his service-connected condition. As such, the claim must be remanded for a VA opinion on secondary service connection, as directed by the Board in August 2016. Stegall v. West, 11 Vet. App. 268, 271. The matter is REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran’s headache claim. The need for examination is left to the examining official. The examiner is asked to offer the following opinion: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current headache disability began in service, or is otherwise the result of a disease or injury in service? b) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s current headache disability was caused or aggravated beyond its natural progression by his service-connected PTSD? The opinion must address both causation and aggravation, as these are two separate inquiries. The rationale for any opinion offered should be provided. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel