Citation Nr: 21000344 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-06 891 DATE: January 5, 2021 ORDER Service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for sleep disorder, to include as secondary to or aggravated by service-connected heart condition is remanded. FINDING OF FACT The Veteran’s diabetes mellitus did not onset in service or manifest to a compensable degree within a year of separation from service and is not causally related to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to August 1992, including service in the Southwest Asia Theater of Operations. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board found that new and material evidence had been received to reopen the claims for service connection for obstructive sleep apnea, diabetes, and a disability manifested by chronic fatigue and joint pain. After reopening these issues, the Board remanded them for further development. VA exams were conducted for Chronic Fatigue Syndrome (CFS) and Obstructive Sleep Apnea (OSA) in September 2018, after a VA exam was conducted for diabetes in July 2018. The Board denied service connection for CFS and remanded OSA and diabetes again in November 2018. Service connection for OSA and diabetes have now returned to the Board for appellate review. Service Connection for Diabetes Mellitus The Veteran contends his diabetes mellitus onset during air service. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. Service connection may also be granted on a presumptive basis for certain chronic diseases, including diabetes, if shown to be manifest to a degree of 10 percent or more within one year following a Veteran’s separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In its first remand of January 2018, the Board remanded the issue because it found the May 2012 VA examination inadequate because it listed facts, but failed to explain why the Veteran’s metabolic syndrome shown in service could not have been the onset of his diabetes mellitus. The VA had another examination done in July 2018 as directed by the January 2018 Board remand. However, the next Veterans Law Judge (VLJ) found this medical opinion also to be inadequate and remanded the issue again. Specifically, the July 2018 clinician stated that while metabolic syndrome is a known diabetes risk factor, and the Veteran had metabolic syndrome in service, there has never been a scientifically established cause for diabetes. As such, the clinician concluded the etiology of the Veteran’s diabetes could not be determined without resorting to speculation. The Board found this opinion to be inadequate as it suggests that it would be impossible for VA to ever grant service connection for diabetes in any case. As this conclusion runs contrary to law supported by medical research—e.g., the Agent Orange Act of 1991, 38 U.S.C. § 1116—another medical opinion was necessary prior to adjudicating the issue of diabetes on its merits. As a result, a third VA examination was conducted in September 2019. The Board finds the third VA diabetes examination and medical opinion adequate. This September 2019 exam found a current diagnosis of diabetes mellitus, managed by restricted diet. A current disability diagnosis is the first of three prongs needed for service-connection. As for the second prong, an in-service event, the September 2019 examiner found the Veteran met the criteria for metabolic syndrome during service without elevated glucose and noted he did have episodes of hypoglycemia while in service. Specifically, a search for proof of an inservice event, metabolic syndrome, the examiner found the following syndrome traits in the record: Abdominal obesity - The examiner did not find a waist circumference in the record. However, the Veteran's BMI on discharge was 28; so, one can extrapolate that the waist circumference was less than 40 inches (criterion not met). The Veteran had serum triglyceride 199 at discharge (criterion met); HDL 27 on discharge (criterion met); BP 110/78 at discharge but service-connection for hypertension (HTN) (criterion met). The Veteran had fasting blood glucose 88 on discharge and multiple normal levels subsequent (98 on 6 Mar 95; 88 on 20 Feb 98) (criterion not met). A medical finding of metabolic syndrome during service was found and satisfies the second prong required for service connection. The 2019 examiner’s next task was to determine if the Veteran’s diabetes was caused by, arose in, or is otherwise related to service by analyzing the medical community’s understanding of the connection between metabolic syndrome and his later development of diabetes mellitus. The examiner opined that the Veteran’s diabetes was less likely than not (less than 50% probability) incurred in or caused by his metabolic syndrome during service. The examiner reviewed the Veteran's VBMS file, considered the relevant medical literature, and reasoned the following: According to UpToDate the metabolic syndrome (insulin resistance syndrome or syndrome X) with author: James B Meigs, MD, MPH; section editors: David M Nathan, MD and Joseph I Wolfsdorf, MB, BCh; deputy editor: Lisa Kunins, MD. This topic last updated: January 15, 2019. There are “several definitions for the metabolic syndrome, leading to some difficulty in comparing data from studies using different criteria (table 1) [17-23]. The National Cholesterol Education Program (NCEP) Adult Treatment Panel III (ATP III) is the most widely used [24]. Because metabolic syndrome traits co-occur, patients identified with one or just a few traits are likely to have other traits as well as insulin resistance [25]. Whether it is valuable to assess insulin resistance in addition to more readily measured traits of the syndrome is uncertain. In addition, although no formal definitions of metabolic syndrome include glycated hemoglobin (A1C), abnormal A1C (5.7 to 6.4 percent) is increasingly accepted and used to define impaired glycemia in patients with metabolic syndrome. (See "Clinical presentation and diagnosis of diabetes mellitus in adults," section on 'Diagnostic criteria.') and "Risk of type 2 diabetes.” Prospective observational studies demonstrate a strong association between the metabolic syndrome and the risk for subsequent development of type 2 diabetes [65-69]. In a meta-analysis of 16 multiethnic cohort studies, the relative risk (RR) of developing diabetes ranged from 3.53 to 5.17, depending upon the definition of metabolic syndrome and the population studied [70]. As an example, in an analysis of 890 nondiabetic Pima Indians, 144 developed diabetes over four years of follow-up [65]. The metabolic syndrome increased the RR for incident diabetes by 2.1-fold with the Adult Treatment Panel III (ATP III) definition and 3.6-fold using the World Health Organization (WHO) definition. This difference highlights the importance of insulin resistance (a required characteristic of the WHO definition) in the pathogenesis of type 2 diabetes. In several cohorts, the risk of diabetes increased with increasing number of components of the metabolic syndrome [45, 63, 67]. While the metabolic syndrome predicts increased risk for diabetes, it is not clear whether this adds additional important information [70,71]. In a prospective cohort study of 5842 Australian adults, metabolic syndrome (defined by WHO, ATP III, the European Group for the Study of Insulin Resistance [EGIR], or the International Diabetes Federation [IDF]) was not superior to fasting plasma glucose or a published diabetes prediction model (including age, gender, ethnicity, fasting plasma glucose, systolic blood pressure, high-density lipoprotein [HDL] cholesterol, body mass index [BMI], and family history) in identifying individuals who developed diabetes [72]." But the link between metabolic syndrome and subsequent development of Diabetes Mellitus (DM) is insulin resistance. Recurrent hypoglycemia is further evidence of the ABSENCE of insulin resistance. The Veteran underwent Roux en Y gastric bypass in 2018 for DM and overweight (BMI 35). The Veteran has lost significant weight and HbA1c has greatly improved. The Veteran now experiences frequent symptoms c/w hypoglycemia at least once a week (but doesn't have strips so no lab evidence). He treats with glucose tablets or orange juice with improvement in 15-20 minutes. Episodes are usually related to exercise. The Veteran has addressed this with his PCM and has been reassured. Further evidence of the resolution of his diabetes after gastric bypass in 2018 and return to a weight closer to his discharge weight supports the post-discharge weight gain as the primary factor in his post discharge DM diagnosis. Therefore, given the absence of evidence of insulin resistance while in service (as evidenced by repeatedly normal glucose measurements) and the limited clinical usefulness of metabolic syndrome in diagnosing or treating the component elements of metabolic syndrome, it is the examiner’s opinion that the Veteran's DM II was less likely than not to have occur in or be caused by military service itself or the result of metabolic syndrome first noted on active duty. A December 2010 statement of H.C.S., M.D., reported that the Veteran had a long term history of hypertriglyceridemia which had been associated with metabolic syndrome (pre-diabetes). The doctor indicated that asymptomatic insulin resistance can be present for many years prior to the onset of diabetes and he was diagnosed with type 2 diabetes in 2007. The doctor indicated that patients may be asymptomatic and have insulin resistance 10 years or greater before the diagnosis of diabetes. Another December 2010 letter from C.H., M.D. indicated she had treated the veteran since 207 for multiple health concerns including depression, anxiety, fatigue, dysmetabolic syndrome. She opined that she agreed with the diagnoses he has since received from specialists including PTSD, Gulf War Syndrome/Chronic Fatigue and sleep apnea. The doctor further noted that since she started working with him he developed type II diabetes mellitus. She concluded that she believed his time in the military either caused or at least significantly contributed to several of his health problems. The Board considered the opinions of Dr. S. and Dr. H. However, neither doctor provided a clear rationale for the opinion. A medical opinion is inadequate when it unsupported by medical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1993). See also, Kightly v. Brown, 6 Vet. App. 200 (1994). The Board finds the VA September 2019 medical opinion and rationale adequate and based on it and the entire record finds that a preponderance of the evidence is against finding that the Veteran’s diabetes mellitus onset in or is causally related to his service. The claims file was reviewed by VA examiner who considered the record and subjective history, examined the Veteran and provided a clear and thorough rationale for the opinions rendered. See Nieves-Rodriguez, 22 Vet. App. at 304 (indicating “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). As the Veteran has a diagnosis of diabetes, the Board carefully considered whether service connection could be granted as a chronic disease under 38 C.F.R. § 3.303 or 3.309. As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. The first way is for the chronic disease to be identified during service or within the presumptive period. In this case, the Veteran was not diagnosed with diabetes during service and it was not identified. The Veteran was diagnosed with metabolic syndrome, however, as explained above, this is not a clear manifestation sufficient to establish the chronic disease during service. As such, the chronic disease of arthritis was not established during service. Furthermore, the condition was also not established during the presumptive period, or within one year of the Veteran’s separation from service. Rather, the December 2010 private record confirmed the diagnosis of diabetes and had been diagnosed in 2007. Thus, the Veteran was not diagnosed with diabetes until nearly 15 years after his separation from service. The second way to establish service connection for a chronic disease occurs when a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned. In such a case a showing of continuity of related symptomatology after discharge is required in order to grant service connection. In this case, the evidence does not demonstrate a continuity of symptoms since service. The August 1992 separation examination did not note any abnormalities of the endocrine system. A heart examination in July 1995 indicated there was no history of diabetes mellitus. A 2006 cardiovascular treatment record also noted no history of diabetes but did note borderline blood sugar. To the extent to which the Veteran has claimed the metabolic syndrome was an early symptom the VA examiner addressed that and provided a clear rationale for the opinion. As a layperson, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau, 492 F.3d at 1372. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id. However, diabetes mellitus is a complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. In sum, after careful consideration of the evidence, the Board concludes that the legal requirements for entitlement to service connection for diabetes mellitus are not met. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for sleep disorder, to include as secondary to any service-connected disability either through causation or worsening is remanded. The Board’s second remand order specifically asked the RO to find a different VA examiner to perform the third VA examination for obstructive sleep apnea. This instruction was not followed. The examiner who performed the September 2019 VA examination also performed the September 2018 VA examination. Additionally, the previous remand in November 2018 found that the examiner in 2018 failed to discuss the Veteran’s lay testimony of tentmates complaining that he snored and had arrested breathing in service. Here again in the September 2019 VA sleep apnea opinion, the same examiner instead of discussing the lay statements simply stated, “I did not encounter any buddy statements regarding snoring or arrested breathing during service. Regardless, neither is conclusive evidence of OSA, particularly snoring as it is a common finding in people both with and without OSA.” The Board regrets the delay, but for both these reasons, the issue of obstructive sleep apnea needs another remand for an adequate medical opinion that substantially complies with the Board’s November 2019 remand order to properly address the Veteran’s contentions prior to final adjudication of this issue. Stegall v. West, 11 Vet. App. 268 (U.S. 1998). The matter is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since February 2020. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified as such. 2. After any records are obtained, send the Veteran’s claims file to an appropriate VA clinician to issue a medical opinion as to the nature and etiology of the Veteran’s obstructive sleep apnea. The claims file should be sent to a clinician different than the one who provided the September 2018 and September 2019 opinions. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician. Thereafter, the clinician should address the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea was caused by, incurred in, or is otherwise related to service. The clinician should specifically comment upon the Veteran’s report of being told he snored and had arrested breathing in service. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea is proximately due to the Veteran’s service-connected cardiomyopathy, cardiac arrhythmia, and/or hypertension. (c.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea was aggravated (worsened beyond natural progression) by the Veteran’s service-connected cardiomyopathy, cardiac arrhythmia, and/or hypertension. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim (June 2010). The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.