Citation Nr: 18160746 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 07-16 899 DATE: December 28, 2018 ORDER Entitlement to service connection for osteoporosis of the bilateral lower extremities is denied. Entitlement to service connection for diabetes mellitus, type II (diabetes) is denied. FINDINGS OF FACT 1. The Veteran’s osteoporosis is not related to service and is not secondary to service-connected disability. 2. The Veteran’s diabetes is not related to service and is not secondary to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoporosis of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.311 (2018). 2. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.311 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1955 to September 1958. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a U.S. Department of Veterans Affairs (VA) regional office (RO). These claims have been remanded several times, most recently in October 2017, to afford the Veteran new VA examinations, which were accomplished in June 2018. A review of the record shows substantial compliance with the Board’s prior remands. Therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). VA treatment records have been associated with the claims folder since the most recent adjudication of the claims in a July 2018 supplemental statement of the case (SSOC). These records are duplicative of medical evidence dated prior to the July 2018 SSOC. A remand for a waiver of this evidence is not necessary. 38 C.F.R. §§ 19.9, 20.1304(c). Issues of entitlement to service connection for kidney stones, bilateral cataracts, retinopathy, macular degeneration, sleep apnea, Cushing’s disease, and neuropathy of the legs were raised by a March 2017 statement. The issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Diabetes and arthritis may be presumed incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a)). Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R § 3.310 (a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran’s contends that he was exposed to ionizing radiation during service. The record demonstrates he is not a “radiation-exposed” veteran due to participation in a “radiation-risk activity” (e.g., exposure to atmospheric nuclear weapons testing or exposure during the American occupation of Japan). Further, neither osteoporosis nor diabetes is a radiogenic disease as defined by the code. The Veteran also has not submitted or cited to competent medical evidence showing that either of these disorders is a radiogenic disease. Thus, a service connection finding would be unwarranted here under either 38 C.F.R. § 3.309(d) or under 38 C.F.R. § 3.311(b). Nevertheless, the issue of service connection based on radiation exposure under 38 C.F.R. § 3.303 will be addressed below. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A. Entitlement to service connection for osteoporosis of the bilateral lower extremities The Veteran contends that his current osteoporosis disability was (1) caused by chemical exposure while working as an aircraft maintenance technician in-service; or (2) caused or aggravated by his service-connected eczematoid dermatitis, for which he received radiation and topical steroid treatment beginning in 1956. The Veteran filed a service connection claim for eczematoid dermatitis in September 1958, which the RO granted in January 1959. The evidence indicates a current osteoporosis disability. A May 2006 VA treatment record reports a diagnosis of osteoporosis. In addition, the Board finds that the Veteran was exposed to chemicals while in service. A July 1955 service treatment record notes that he spilled naphtha (a flammable oil) over his lower abdomen and thighs, resulting in first degree burns. Accordingly, the two Shedden elements are met here. The remaining issues, therefore, are (1) whether there is a causal connection between the osteoporosis and the in-service chemical exposure; or (2) whether the service-connected dermatitis either caused or aggravates the osteoporosis. The Veteran has submitted several lay statements to support his contentions. The Veteran stated that he was exposed to various chemicals as a part of his duties as an aircraft maintenance technician, including aviation fuels, benzene, naphtha, trisodium phosphate, and mercury. In addition, the Veteran stated that he was exposed to radiation both as a result of his dermatitis treatment therapy and from aircraft instrument dial repair during service. The Veteran also stated that he was prescribed a topical steroid cream to treat his service-connected dermatitis. The Veteran contends that this chemical, radiation, and steroid exposure either caused his disabilities or aggravates his current disabilities. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his current disabilities requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, his lay statements are accorded little probative value on the questions of etiology and diagnosis. The service treatment records reveal no osteoporosis diagnosis or treatment. An osteoporosis diagnosis was first reported in 2006, almost 50 years after military service. There has been no positive opinion by health care professionals indicating osteoporosis was caused by chemical exposure. Also, there has been no positive opinion indicating osteoporosis was caused or aggravated by the Veteran’s topical steroid and radiation treatment for his service-connected dermatitis. The Veteran underwent a VA examination in May 2017. The VA examiner gave a negative opinion that the osteoporosis was caused by the Veteran’s in-service chemical exposure or by radiation and topical steroid treatment due to his service-connected dermatitis. The examiner reported that osteoporosis is an endocrine disorder most commonly caused by lower hormone output associated with old age. The examiner also reported that the Veteran’s topical steroid treatment is of such low potency that it is not known to have systemic risks normally associated with high potency steroid treatment. In a June 2018 VA medical addendum opinion, the VA examiner gave a negative opinion that the Veteran’s osteoporosis was aggravated by his service-connected dermatitis. The examiner reported that the use of topical steroids does not result in the depletion of calcium stores in the body. The examiner also revealed that the most common cause of the Veteran’s osteoporosis was advanced age. These two VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran’s lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran submitted several medical journal articles and medical encyclopedia entries to support his contentions. These medical and encyclopedic articles discussed the possible side effects of topical steroid treatment, radiation treatment, and chemical exposure, which included both osteoporosis and diabetes. While the VA examinations did not specifically address each medical article and medical encyclopedic entry submitted by the Veteran, this omission would not have changed the outcome of the Veteran’s claim and, as such, is harmless error. The VA examiners specifically addressed each of the Veteran’s different theories of entitlement and found no causal connection between the Veteran’s osteoporosis and his claimed chemical, steroid, and radiation exposure both in-service as well as due to his service-connected dermatitis treatment. As stated above, these VA opinions are adequate and probative of the relevant issues on appeal. Also, no medical professionals have given a positive nexus opinion on the Veteran’s various theories of entitlement. As such, the submission of these medical journal articles and medical encyclopedia entries are afforded little probative value. In light of the negative nexus opinions and lack of positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran’s osteoporosis. Since a preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine does not apply. As such, the claim must be denied. B. Entitlement to service connection for diabetes The Veteran contends that his current diabetes disability was (1) caused by chemical exposure in service; or (2) caused or aggravated by service-connected dermatitis or acquired psychiatric disability. The Board finds that the Veteran has a current diabetes disability. The August 2014 VA examination reports a diagnosis of diabetes since 1989. The Board also finds that the Veteran was exposed to chemicals in-service, based on the July 1955 service treatment record previously mentioned. As such, the two Shedden elements are met and are not in dispute. The remaining issues are (1) whether there is a causal connection between the diabetes and the in-service chemical exposure; or (2) whether the diabetes was caused or aggravated by the service-connected dermatitis or acquired psychiatric disability. The Board finds that a preponderance of the evidence of record is against the Veteran. As such, service connection for diabetes is denied. As stated above, the Veteran’s lay statements regarding the cause or etiology of his diabetes disability are given little probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s service treatment records do not show any diagnosis or treatment for diabetes in-service. The Veteran’s VA treatment records also do not show a diabetes diagnosis within one (1) year after service. There has been no positive opinion by health care professionals indicating that the Veteran’s diabetes was caused or aggravated by either chemical or radiation exposure in-service. There has also been no positive opinion indicating that the Veteran’s diabetes was caused or aggravated by radiation or topical steroid exposure due to his service-connected dermatitis. Finally, there has been no positive opinion indicating that the Veteran’s diabetes was either caused or aggravated by his service-connected acquired psychiatric disorder. The Veteran underwent a VA examination in August 2014. The examiner gave a negative opinion that the Veteran’s diabetes was caused by service-connected dermatitis. The examiner reported that the Veteran’s low potency topical steroid treatment is not known for systemic risks normally associated with high potency steroid treatment. The examiner also referenced the Veteran’s history of chronic pancreatitis, which is a “well known” risk factor for diabetes development. In an August 2016 VA addendum opinion, the examiner gave a negative opinion that the Veteran’s diabetes was caused or aggravated by service-connected acquired psychiatric disability. The examiner reported that diabetes is due to insulin insufficiency that is influenced by genetic and environmental factors. The VA examiner stated that it is possible that the Veteran’s psychiatric disorder could have influenced the Veteran’s eating habits, stating that “[t]he N.I.H. Mayo Clinic and NAMI (National Alliance of Mental Illness) all give equal weight to over, and UNDER, eating as elements of bipolar mental conditions.” However, the examiner reported that there was little evidence to show how long this pattern of behavior had been occurring in order to demonstrate whether the Veteran’s psychiatric disorder aggravated the Veteran’s diabetes. In an August 2017 VA addendum opinion, the examiner gave a negative opinion that the Veteran’s diabetes was caused by radiation and topical steroid treatment associated with service-connected dermatitis. The examiner reported that the Veteran’s obesity and chronic pancreatitis are “well known” risk factors for diabetes development. The examiner also reported that the Veteran’s low potency topical steroid treatment would not result in adverse effects, especially since the Veteran stated that he only used the steroid cream once every 2 weeks on his hands. Finally, in a June 2018 VA addendum opinion, the examiner gave a negative opinion that diabetes was caused or aggravated by in-service chemical exposure. The examiner stated that chemical exposure has no bearing on the etiology of the Veteran’s diabetes. The examiner went on to report that the diabetes was due to a combination of the Veteran’s risk factors of obesity, chronic pancreatitis and the normal course of aging, in which insulin production decreases as a person ages. The Board finds that these VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran’s lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the August 2016 VA examiner’s opinion on whether the Veteran’s diabetes was aggravated by his acquired psychiatric condition to be speculative. However, it is clear that the examiner found the Veteran’s diabetes was due to insulin insufficiency that was influenced by genetic and environmental factors. As stated above, the Veteran’s submission of medical journal articles and medical encyclopedia entries are given low probative value. No medical professionals have given a positive opinion indicating the Veteran’s diabetes was caused or aggravated by either chemical, radiation, steroid exposure or by his acquired psychiatric disorder. More importantly, the VA examiners specifically addressed each of the Veteran’s theories of entitlement and found no causal connection between his diabetes and his claimed entitlement theories. Since a preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine does not apply. As such, the claim must be denied. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel