Citation Nr: 20052591 Decision Date: 08/07/20 Archive Date: 08/07/20 DOCKET NO. 15-33 777 DATE: August 7, 2020 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability, is granted. FINDING OF FACT The Veteran’s diagnosed diabetes mellitus, type II, is, as likely as not, caused or aggravated by other service-connected disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1995 to October 1999, and from October 2003 to April 2004. This appeal arises before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board remanded the issue on appeal for additional development in October 2018. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection – General General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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 or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include diabetes mellitus, must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For diabetes mellitus, the disease must have manifested to a degree of 10 percent or more within one year after the last date of the Veteran’s active service. 38 C.F.R. § 3.307(a)(3). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection for Diabetes Mellitus Type II – Evidence and Analysis The Veteran is seeking entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability. In his original claim for service connection dated October 2013, the Veteran posited that medications he took for other service-connected disabilities, including for pain for his lower extremity orthopedic disabilities, his migraine headaches, and his psychiatric medications, led to his diabetes. The Board notes the Veteran is service connected for both left and right chronic knee sprains, a separate rating for lower extremity sensory deficits associated with a lumbar back disability, migraine headaches, and major depressive disorder, all of which he is currently treated for at VA medical facilities. VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). VA must examine the record with a view towards ascertaining whether the claimant or the evidence raises consideration of any theory of entitlement, regardless of specific disability claims. Secondary service connection means service connection not for a disability that was incurred in or aggravated by active service, but rather for one that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310. In Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), the Court held that secondary service connection includes compensation for aggravation of a Veteran’s non-service-connected condition that is proximately due to or the result of a service-connected condition. Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service connection condition. An opinion that something “is not related to” or “is not due to” does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Veteran’s representative offered an alternative theory of service connection, claiming that the Veteran’s diabetes mellitus was due to exposure to contaminants in the water supply at one of his duty stations, Camp Lejeune, North Carolina. The Veteran’s service records do indicate the Veteran was stationed there during his first period of active service. However, pursuant to 38 C.F.R. § 3.307(a)(7), the applicable time period for consideration is August 1, 1953 to December 31, 1987, and the Board notes the Veteran first entered on to active duty on October 2, 1995 from his home of record of Montgomery, Alabama, and thus the Veteran was not present at Camp Lejeune during the applicable period. As such, the Board will not consider that theory of service connection. The Veteran had two different periods of active service, the last ending in April 2004, but service treatment records to include the separation examinations are silent for any indications of diabetes or high blood sugar. Here, the Board notes that the Veteran was diagnosed with diabetes mellitus type II formally by VA in February 2013, and that VA medical providers had previously in October 2012 noted several laboratory results that they indicated were likely signs of diabetes mellitus type II. The Veteran received a VA examination in February 2014, which noted a formal diagnosis of diabetes mellitus, type II, which was being treated with oral hypoglycemic agents and dietary modifications. No remarks as to possible etiology or opinion for service connection were provided by this examiner. VA provided an addendum opinion in March 2014 from a different examiner, providing a negative nexus opinion for secondary service connection for the diabetes as due to service-connected knee or back disabilities. In the Veteran’s July 2014 notice of disagreement after the RO’s March 2014 initial denial of service connection, the Veteran noted that his orthopedic disabilities keep him from walking or exercising sufficiently, which contributed to the worsening of his diabetes. The Veteran has a complex medical profile and history, to include the service-connected disability of major depressive disorder with social phobia and insomnia associated with migraine headaches, with an evaluation of 50 percent since January 19, 2007. The Veteran received regular, continuing care from VA for this psychiatric disability. In June 2011 and February 2013, the Veteran met with his VA psychiatrist, Dr. J.B., who was discussing new antipsychotic medications for the Veteran to reduce the incidence and effects of tardive dyskinesia, a side effect of the medications the Veteran took for his service-connected psychiatric disorder. Dr. J.B. specifically pointed out to the Veteran that different anti-psychotic medications had risks that include “... weight gain, elevations in blood sugar and blood pressure, and an increase in cholesterol and lipids. In addition, [Dr. J.B. and the Veteran] discussed that some patients even develop diabetes.... [The Veteran] indicated an understanding of these risks and benefits and chose to proceed with the use of this medication.” (Emphasis added.) VA provided an addendum medical opinion in October 2019 to address both direct and secondary service connection for the Veteran’s diagnosed diabetes mellitus, type II. This examiner, a nurse practitioner who did not examine the Veteran personally, reviewed the Veteran’s records and provided a negative opinion for direct service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s diabetes was caused by or the result of any in-service disease, event, or injury. The examiner’s rationale was that the Veteran had no signs of diabetes or high blood sugar during either period of his active service, and that his initial diagnosis of diabetes did not occur until October 2012 at the earliest, eight years after separating from active duty. This October 2019 VA examiner also provided a negative opinion for secondary service connection, saying the Veteran’s diabetes was less likely than not proximately caused by or aggravated by any of the Veteran’s service-connected disability. The examiner’s rationale here was that the Veteran’s high blood sugar readings were reflective of high caloric intake and from impaired glucose tolerance, but not from medications. The examiner remarked that medications given for depression are known to cause weight gain but not known to cause diabetes mellitus. The Board notes the mix of opinion but finds the VA examiner’s opinion for service connection from October 2019 to be of lower probative value. The VA examiner indicated she only reviewed VA medical records; she did not review all private medical records present in the claims file or respond to the Veteran’s statements regarding his own history. While the Board notes case law that an examiner need not review the claims file prior to providing as opinion, it does require that the examiner is aware of all pertinent facts from the Veteran’s history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008). However, the Board finds here that the Veteran’s statements of his diabetes symptoms in light of his medications for his psychiatric and orthopedic disabilities were discounted, the resulting opinion was conclusory, and thus considers the probative value of this opinion to be low because of that. The specific medications that the Veteran was taking were easily available in the VA medical records, but this examiner did not reference any of the medications to discuss possible aggravating effects on the Veteran’s high blood sugar and possible exacerbation of the Veteran’s diabetes. In order for the Board to rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence; the Board should ensure any such finding was well supported by the facts and data and reflects that the examiner has considered “all procurable and assembled data,” by obtaining all tests and records that might reasonably illuminate the medical analysis. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board also notes that the October 2019 VA examiner’s opinion for secondary service connection is of lower probative value because she did not address the issue of aggravation in the context of possible secondary service connection, in that a claimed disability can be secondarily service connected by noting aggravation above a certain baseline level of disability, to include the possibility of medications that treat one service-connected disabilities can aggravate another medical condition. An opinion that something “is not related to” or “is not due to” does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). On the other hand, the Board finds the etiology opinion of the Veteran’s VA psychiatrist, Dr. J.B., to be highly probative. Here, Dr. J.B. remarked of the likely cause or at least a significant contributing factor of the Veteran’s diabetes as due to the effects of the different anti-psychotic medications had risks that include “... weight gain, elevations in blood sugar and blood pressure, and an increase in cholesterol and lipids. In addition, [Dr. J.B. and the Veteran] specifically discussed that some patients even develop diabetes,” per the VA psychiatrist’s February 2013 examination report. VA examination records note the Veteran was taking antipsychotic medications to reduce the incidence and effects of tardive dyskinesia, a side effect of the Veteran’s service-connected psychiatric disorder. Here, Dr. J.B. was a VA psychiatrist who knew and was treating the Veteran personally, and who had knowledge of the Veteran’s specific psychiatric medications and their effects, based on his medical specialty and his role in treating the Veteran. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The treatment records of Dr. J.B., to include his opinions on the etiology of the Veteran’s diabetes, were sound and thorough, and had sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting medical literature and clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). The Board finds evidence of a current disability of diabetes mellitus, type II, as shown by recent VA and private treatment records as noted earlier in this decision. Thus, the first element of service connection is established. The second requirement is to establish in-service incurrence or aggravation of a disease or injury. Here, the claims file contains documentation of the Veteran’s diabetes along with statements and an opinion on the etiology of the diabetes from the Veteran’s VA psychiatrist that establishes the aggravation effect of the prescribed psychiatric medications necessary to treat the Veteran’s mental disorders on his blood sugar levels and subsequent development of diabetes. See also Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Thus, the Board finds that both criteria have been satisfied. Thus, resolving any doubt in favor of the Veteran, the Board finds that his diabetes disability is related to service on a secondary basis. As such, service connection for a diabetes disability is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.