Citation Nr: 20028858 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 10-17 456 DATE: April 24, 2020 ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents or as secondary to service-connected musculoskeletal disabilities, is denied. FINDINGS OF FACT 1. It is more likely than not that the Veteran was not exposed to herbicide agents during his active duty service. 2. It is more likely than not that the Veteran did not have diabetes mellitus during his active duty service. 3. It is more likely than not that the Veteran’s currently-diagnosed diabetes mellitus is not due to or aggravated by his active duty service or his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1968 to April 1979. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of September 2008 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in March 2009. The RO subsequently issued a statement of the case (SOC) in March 2010 and the Veteran’s timely appeal to the Board followed in April 2010. A hearing was conducted before the undersigned VLJ at the RO in March 2013. A transcript of the hearing is of record. The Board notes that this case has undergone extensive prior appellate development, including remands of November 2013, June 2016, and October 2018. Following the October 2018 remand, the RO provided an additional VA examination from the Director of the Compensation and Pension Service in July 2019 and issued a supplemental statement of case (SSOC) in December 2019. After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). The Board will therefore proceed to adjudicate the Veteran’s claim on the merits. 1. Entitlement to service connection for diabetes mellitus. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may 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). The Board notes that certain conditions, including diabetes mellitus, can also be presumptively service-connected on the basis of exposure to certain herbicide agents. See 38 C.F.R. § 3.307(a); see also 38 C.F.R. § 3.307(a)(6)(i)-(v) (providing the geographic and temporal boundaries to which the presumption applies); see also 38 C.F.R. § 3.309(e) (providing that diabetes mellitus is such a presumptive condition). The Veteran has previously asserted exposure to herbicide agents as a result of his active duty service, which included repairing vehicles which had previously been deployed in Vietnam. See Transcript at 7. However, the Veteran’s military service records reflect that he did not serve on active duty in any of the geographic areas contemplated under 38 C.F.R. § 3.307(a)(6)(i)-(v). See November 2013 Military Personnel Records at 1. Furthermore, the RO documented its efforts to establish whether the Veteran was exposed to herbicide agents as part of his repair work and concluded that no such exposure could be demonstrated. See July 2014 Memorandum at 1-3. The Veteran has provided no additional competent evidence supporting a finding that he was exposed to herbicide agents as contemplated by 38 C.F.R. § 3.307. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). While the Veteran is competent to state that he was told during his active duty service that the vehicles he repaired had previously been deployed in Vietnam, he is not competent to opine that such vehicles carried residue of herbicide agents sufficient to cause diabetes mellitus because such a determination requires medical expertise. Id. The Board therefore concludes that the assignment of service connection on the basis of exposure to herbicide agents is not warranted. In the alternative, the Veteran has also asserted that his diabetes mellitus is due to or the result of obesity, which in turn is due to his service-connected musculoskeletal disabilities. See March 2020 Appellate Brief. Generally, disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. The October 2018 Board remand directed that the RO obtain a medical opinion specifically addressing this theory of causation. See October 2018 Board Remand at 4-6. The July 2019 VA examination report, provided by the Director of the Compensation and Pension Service, comprehensively reviewed the Veteran’s medical history, including prior VA examinations and private medical opinions. See July 2019 VA Examination Report at 1-17. The Director concluded that the Veteran’s service-connected disabilities were less likely than not to have caused or aggravated his diabetes. See id. at 18-21. In support of this conclusion, the Director noted that “medical literature does not support the [conclusion that the] Veteran’s service-connected knee and lumbar spine disabilities cause inactivity or obesity… [in] fact, exercise is routinely recommended for individuals with chronic low back and knee pain[.]” See id. at 18-19; see also id. (citing multiple studies recommending exercise, including for purposes of weight loss, in alleviating symptoms of musculoskeletal disabilities). The Director also noted the Veteran’s additional risk factors for diabetes, including age and non-service-connected hypertension and dyslipidemia, and additionally noted that his age is separately correlated with weight gain even in otherwise-healthy adult men. See id. “Relevant points that can be discussed in an examination report include, but are not limited to, why the examiner finds cited studies persuasive or unpersuasive, whether the veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested itself in an unusual way.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran submitted a private medical opinion in support of his claim on this point. See December 2013 Correspondence (providing March 2013 opinion that “diabetes… might be related to obesity secondary to inactivity related to the aforementioned [musculoskeletal] issues… [it] is my professional medical opinion that it is possible that [the Veteran’s] primary medical conditions are service connected”). However, because the Director’s July 2019 medical opinion thoroughly explains its reasoning and addresses the Veteran’s other risk factors, the Board assigns it greater probative weight than the private medical opinion, which does not. See Stefl and Nieves-Rodriguez, supra. Finally, the Veteran asserts that he experienced polyuria and polydipsia during his active duty service as symptoms of diabetes mellitus. See March 2020 Appellate Brief at 2. The Board notes that polyuria and polydipsia are defined as unusual or excessive urination and thirst, respectively. See “Polydipsia (Excessive Thirst)”, Healthline (obtained via https://www.healthline.com/health/diabetes/polydipsia). The October 2018 Board remand likewise directed that the RO obtain a medical opinion as to whether the Veteran’s reported symptoms of polyuria and polydipsia could support the conclusion that it is at least as likely as not that he had diabetes mellitus during his active duty service. See October 2018 Board Remand at 2. Accordingly, the Director likewise addressed this directive in the July 2019 VA examination report. In addition to noting the absence of corroborating service treatment records (STR), the Director noted that “on 9/28/1994 a Glucose Tolerance Test did NOT objectively support a diagnosis of diabetes mellitus… As diabetes mellitus is a chronic condition without a cure, it stands [to reason] that if diabetes mellitus was not objectively clinically present in the year 1994 for this Veteran, diabetes mellitus was [also] not present during the Veteran’s active duty service time many years prior.” See July 2019 VA Examination Report at 20. The Board therefore concludes that it is more likely than not that the Veteran did not have diabetes mellitus during his active duty service and that his currently-diagnosed diabetes mellitus is less likely than not due to or aggravated by either his active duty service or by his service-connected musculoskeletal disabilities. The second and third Shedden factors have therefore not been met within a theory of direct service connection, and the third Shedden factor has not been met within a theory of secondary service connection. See 38 C.F.R. §§ 3.303, 3.310. The Board   has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.