Citation Nr: 20060308 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 14-34 118 DATE: September 14, 2020 ORDER Service connection for type 2 diabetes mellitus is denied. Service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran’s type 2 diabetes mellitus onset many years after service, is not the result of an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 2. The Veteran’s sleep apnea onset many years after service, is not the result of an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for type 2 diabetes mellitus have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for sleep apnea have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran’s active military service extended from February 1976 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January and March 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2018 and March 2020, when it was remanded for examination of the Veteran and medical opinions. The requested development has been completed. Generally, to establish service connection, a claimant 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as diabetes mellitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran claims entitlement to service connection for type 2 diabetes mellitus and sleep apnea. He does not claim that these disabilities began during active service. On his February 2012 Application for Compensation, VA Form 21-526, he indicated that both disorders began in 1997, which is almost two decades after he separated from service. On this form he also asserted that asbestos exposure during service caused his sleep apnea. The evidence shows that the Veteran served in the Navy as a fireman apprentice aboard a ship. The Board will concede that the Veteran was exposed to asbestos during service. However, as will be shown below, the Veteran’s claim fails because he does not have any asbestos related disorder, and the credible medical evidence of record indicates that his sleep apnea is not caused by asbestos exposure. He has also asserted that due to his service-connected back disability he developed obesity which has caused his claimed type 2 diabetes mellitus and sleep apnea While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service event for service connection purposes, obesity may serve as an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 30 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. In such a case, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the Veteran to become obese or aggravated the Veteran’s obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the Veteran’s service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities. Walsh, 30 Vet. App. at 306-7. The Veteran’s service treatment records do not show any complaints of, treatment for, or diagnosis of diabetes mellitus or sleep apnea during service, including on separation examination. Private medical treatment records dated November 2009 indicate that the Veteran had a diagnosis of sleep apnea from “about 15 years ago,” which puts his diagnosis around 1994. Other private treatment records dated in February 2012 indicate a diagnosis of longstanding, poorly controlled type 2 diabetes mellitus. In December 2012 VA examination of the Veteran was conducted. The diagnosis was sleep apnea dating from a reported initial diagnosis in 1998. The accompanying medical opinion indicted that the Veteran’s sleep apnea was obstructive and was not caused by asbestos exposure, moreover, the examiner indicated that medical examination did not reveal that the Veteran had any asbestos related respiratory disorder. In September 2014, the Veteran’s private physician submitted a letter which stated that the Veteran “has chronic back pain, DM [diabetes mellitus], neuropathy, and ED. It is completely agreed that his back injury that happened while serving our country, in not doubt has lead to his continued medical problems. After reviewing records from his previous Dr in Michigan, and here at Nashville Medical Group, I’m sure you will agree that back pain can severely limit mobility, limiting the amount of activity [the Veteran] is capable of doing. Increased weight gain due to pain, can, and does lead a pt towards diabetes.” This opinion attempts to link the Veteran’s diabetes mellitus to a lack of activity from his back pain resulting in weight gain and ultimately diabetes mellitus. However, the opinion is speculative and does not account for other risk factors addressed in the VA medical opinions below. Thus, it is afforded little probative weight. VA treatment records reveal diagnoses of sleep apnea and diabetes mellitus, the latter of which is being treated with prescribed medication. In October 2019 another VA examination of the Veteran was conducted. The Veteran reported a diagnosis of sleep apnea dating from the 1990s and that he uses a CPAP machine for treatment. The Veteran was also diagnosed with type 2 diabetes mellitus. The examining physician expressed the requested medical opinions and indicated that the Veteran’s diabetes mellitus manifested more than 20 years after service and was less likely than not related to service. Also, the examiner stated that diabetes mellitus was less likely than not caused by the Veteran’s service-connected back disability. The physician stated that while “it is true that risk factors for developing type II diabetes include genetics (family history) and lifestyle factors such as obesity, smoking and dietary patterns, it can not be said that the presence of one risk factor causes one to become diabetic. Type II diabetes is multifactorial. The vet does have degenerative disc disease to the lumbar spine which may have been a contributing factor to obesity, but is not the only factor. Risk factors for obesity are multifactorial including genetics, sedentary lifestyle, western diet and consuming more calories than required. It is likely than not that vet’s type II diabetes is proximately due to or the result of the vet’s degenerative disc disease of the lumbar spine.” Moreover, the examiner further stated that the diabetes mellitus was less likely than not aggravated by the service-connected low back disability stating that she reviewed “the September 2014 letter submitted by the vet’s private physician. While I agree that back pain can severely limit mobility, it does not affect dietary choices and other lifestyle changes that contribute to obesity. There is no medical evidence that the veteran’s type [II] diabetes is aggravated by degenerative disc disease of the lumbar spine.” With respect to sleep apnea, the examining physician also expressed medical opinions that the Veteran’s sleep apnea was unrelated to service, including asbestos exposure during service stating that there “is no medical science to support that sleep apnea can be due to exposure to asbestos. Sleep apnea is a diagnosis with a clear and specific etiology. It is characterized by recurrent collapse of the nasopharyngeal and velopharyngeal airway during sleep. This is an anatomical process that is not in any way at all related to asbestos exposure.” The physician also stated that it was less like than not that the sleep apnea was caused by the Veteran’s service-connected back disorder. Stating that there “is no medical or scientific evidence that degenerative disc disease of the lumbar spine causes sleep apnea. The two diagnoses are separate and distinct. Although obesity is a contributing factor to sleep apnea, there is no medical evidence that degenerative disc disease alone causes obesity. Risk factors for obesity are multifactorial including genetics, western diet, sedentary lifestyle, and consuming more calories than required. Therefore it is less likely than not that vet’s sleep apnea is proximately due to or the result of degenerative disc disease of the lumbar spine.” The physician also stated that there is no medial or scientific evidence to support that degenerative disc disease aggravates sleep apnea. In March 2020 the examining physician provided addendum opinions stating that: It is less likely than not that the vet’s degenerative disc disease of the lumbar spine caused the veteran to become obese. There is no concrete evidence that due to the veteran’s degenerative disc disease, that he was not able to exercise for more than 20 years. A large majority of the population has degenerative disc disease of the lumbar spine and are not obese. It is less likely than not that the vet’s degenerative disc disease of the lumbar spine aggravated the vet’s obesity. The most likely contributor to obesity and aggravator of obesity is dietary choices and consuming more calories than one should. The physician further stated that there “is not enough medical evidence to opine as to whether the vet’s type II diabetes and/or sleep apnea disabilities would not have occurred had the veteran not been obese. Risk factors for diabetes are multifactorial, with a strong genetic predisposition. Sleep apnea occurs as a result of the recurrent collapse of the velopharyngeal and/or nasopharyngeal airway during sleep. There is a percentage of the population who are not obese but have been diagnosed with sleep apnea as a result of the craniofacial and upper airway structure which play an important role in sleep apnea.” With respect to the claim for service connection for sleep apnea, the evidence shows that the disorder was not present during service; it was diagnosed in the 1990s more than a decade after the Veteran separated from service. The letter from the private physician does not address sleep apnea. The VA medial opinions of record indicate that sleep apnea is not related to service or any asbestos exposure experienced therein. These medical opinions also indicate that sleep apnea is not caused or aggravated by the Veteran’s service-connected lumbar degenerative disc disease. Moreover, while the Veteran asserts that inactivity from his service-connected degenerative disc disease caused obesity, which led to developing sleep apnea; the VA medical evidence shows obesity to be the result of multiple causes including diet and genetics. The Veteran’s dietary choices and excess calorie intake resulted in his obesity and his back disability is not shown to have restricted activity to a degree which would have caused or aggravated his obesity. The preponderance of the evidence is against the claim for service connection for sleep apnea, and the appeal is denied. With respect to the claim for service connection for type 2 diabetes mellitus; the evidence shows that the disorder was not present during service and did not become manifest within the first year after separation from service. The letter from the private physician does address diabetes mellitus indicating that the Veteran’s service-connected degenerative disc disease caused pain resulting in inactivity which “can and does” lead to diabetes. However, the private opinion does not address other risk factors for weight gain and obesity. The VA medial opinions of record indicate that diabetes mellitus is not related to service. These medical opinions also indicate that diabetes mellitus is not caused or aggravated by the Veteran’s service-connected lumbar degenerative disc disease. Moreover, while the Veteran asserts that inactivity from his service-connected degenerative disc disease caused obesity, which led to developing diabetes; the VA medical evidence shows obesity to be the result of multiple causes including diet and genetics. The Veteran’s dietary choices and excess calorie intake resulted in his obesity and his back disability is not shown to have restricted activity to a degree which would have caused or aggravated his obesity. The Board finds the VA medical opinions to be more probative than the letter from the private physician. The preponderance of the evidence is against the claim for service connection for type 2 diabetes mellitus, and the appeal is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, 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.