Citation Nr: 21003383 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-11 155 DATE: January 21, 2021 ORDER Entitlement to service connection for diabetes mellitus type 2 (DM II), to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The preponderance of evidence is against a finding that the Veteran’s DM II began during active service or within the year following service or is otherwise related to an in-service injury or disease; and is not caused or aggravated by his service-connected disabilities. 2. The Veteran's OSA had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for DM II, to include as due to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for OSA have been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to May 1983, October 2001 to September 2002, and from June 2006 to June 2008. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for impaired glucose tolerance without evidence for DM II and OSA. In December 2010 the Veteran filed a notice of disagreement (NOD) and in February 2014 the RO issued a statement of the case (SOC). In March 2014 the Veteran filed a substantive appeal (via VA Form 9). In August 2019 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to obtain treatment records from relevant non-VA medical providers along with any outstanding VA treatment records. The Board also instructed the RO to schedule a VA examination for OSA to confirm a diagnosis and obtain an opinion as to the nature and etiology of this disability. Also, the Board instructed RO to obtain a medical opinion regarding the nature and etiology of the Veteran’s DM II. As will be discussed below, the RO substantially complied with the August 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In July 2020, the RO issued a supplemental statement of the case (SSOC). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). A March 2020 VA examiner diagnosed the Veteran with DM II. Thus, a current disability has been demonstrated. As to the in-service injury element, in May 2020, a military record specialist made a formal finding of unavailability of some of the Veteran’s service treatment records (STRs). In these circumstances, when a Veteran’s STRs are unavailable through no fault of his own, VA’s duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). In a June 2019 informal hearing presentation (IHP) the Veteran, through his representative, stated that his DM II is directly related to his active service or secondary to his service-connected disabilities. Specifically, he stated that his DM II is the result of him being unable to exercise. A May 2008 service treatment record (STR) indicates that the Veteran suffered from prediabetes (impaired glucose tolerance). Taken together, the Veteran’s missing STRs and this treatment note is enough to meet the in-service injury or disease requirement. The Board notes that elevated glucose in the blood, in and of itself, is a laboratory finding. Elevated glucose may occur as a symptom of certain diseases or disabilities but is not, in and of itself, a disease, injury, or disability for VA compensation purposes. Therefore, impaired glucose tolerance does not constitute a diagnosis of DM II. Instead, impaired glucose tolerance merely refers to abnormal results on laboratory testing. Under VA regulations, laboratory results are not a disease upon which VA disability benefits can be based. Schedule for Rating Disabilities; Endocrine System, 61 Fed. Reg. 20440, 20445 (May 7, 1996) (Supplementary Information). The remaining question is whether the Veteran's DM II is related to an in-service injury or disease or whether the Veteran’s service-connected disabilities caused or aggravated his DM II. An April 2019 VA examiner opined that the Veteran’s DM II was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that, by the Veterans own admission, his glucose levels were normal while he was active and physically fit. He did have a mildly elevated glucose in 2005, but previous reports of medical history and examinations showed normal fasting glucose levels all the way back to 1998. The VA examiner noted a diagnosis of DM II in 2004, however, this was done in error as a November 2011 private treatment record indicates that the Veteran was still pre-diabetic following service and the VA examiner explained in his opinion that the Veteran was not diagnosed with DM II during service. The VA examiner further explained that there are several causes of diabetes such as genetics and lifestyle. When combined these factors contribute to insulin resistance which causes DM II. A March 2020 VA examiner opined that the Veteran's claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. The VA examiner explained that none of the Veteran’s service-connected disabilities are known to cause DM II and reasoned that if lack of exercise caused DM II, then every quadriplegic would be diabetic. Additionally, the VA examiner opined that the Veteran’s DM II was less likely than not aggravated beyond its natural progression by his service-connected disabilities. The VA examiner explained that the Veteran’s service-connected disabilities are not known to aggravate DM II beyond its natural progression. As the March 2020 VA examiner provided an opinion on a direct and secondary basis, with separate findings and rationales relating to causation and aggravation, the RO substantially complied with the August 2019 remand instructions. As the April 2019 and March 2020 VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence of record, their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The April 2019 and March 2020 VA examiners considered the Veteran’s lay statements regarding his inability to exercise in their opinions and found that this did not indicate a nexus between the current disability and active service. The Veteran’s statements may be competent on a variety of matters concerning the nature and cause of disability. The dispositive question presented in this case is whether any relationship exists between the Veteran's current DM II and his service or whether his service-connected disabilities caused or aggravated his DM II. This question goes to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372 at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether there is a link between the Veteran's DM II and service is one requiring specialized knowledge and testing to understand the complex nature of the body systems. Additionally, an opinion as to whether there is a link between the Veteran’s current DM II and his service-connected disabilities also requires specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience and his opinion on the question of nexus is therefore not competent. The Board has also considered whether service connection is warranted on the basis of the presumption of service connection for chronic diseases. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), which includes coronary artery disease, diabetes, and hypertension. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such 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 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). A compensable (10 percent) rating is warranted for DM II manageable by restricted diet and a 20 percent rating requires insulin and a restricted diet or hypoglycemic agents and restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. None of these scenarios are shown here. Following service, a June 2009 VA examiner noted that the Veteran had elevated glucose found on routine lab testing. However, the VA examiner noted that no symptoms were shown, the Veteran’s diet was unchanged, there was no effect on occupational functioning and daily activities, and that no activity restrictions (specifically related to fragile diabetic control) were necessary. The lay and medical evidence indicates that diabetes had its onset years following service and the record does not show a compensable degree of DM II was present within one year of the Veteran's June 2008 separation from service. Therefore, presumptive service connection is not warranted as the weight of the evidence is against a manifestation of DM II in service or within the one-year presumptive period. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For the reasons set forth above, the preponderance of the evidence is against the claim of service connection for DM II. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 2. OSA A March 2020 VA examiner diagnosed the Veteran with OSA. Thus, a current disability has been demonstrated. As to the in-service injury or disease element, service treatment records (STRs) are negative of complaints, treatment, or findings of OSA. However, in a May 2009 letter, the Veteran's wife stated that the Veteran had problems sleeping at night due to his shift work in the Air force. Given the subjective nature of symptoms, the lay statements regarding the in-service onset of symptoms are competent and credible to support the Veteran’s claim. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran’s current sleep apnea and his in-service sleep symptoms or whether those symptoms were early manifestations of the subsequently diagnosed sleep apnea. A March 2020 VA examiner opined that the Veteran’s was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As an explanation the VA examiner referenced the 2010 rating decision which stated that there was no evidence of the Veteran’s OSA during service and that the first time the Veteran was diagnosed was in 2011, 28 years after active duty. In this regard, the March 2020 VA medical opinion is inadequate as the Veteran served on active duty as recently as 2008 and is thus based on an inaccurate premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). The Veteran is competent to report the onset and persistent nature of his OSA. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (the Veteran is competent to report factually observable occurrences in-service and the timing of the observable symptoms of his disability). There is no evidence of record to indicate that the Veteran's contention or his wife’s statement as to the onset of his OSA in service are not credible. Therefore, the Veteran's statements as to having sleep symptoms in and since service are competent and credible. Buchanan, 451 F.3d at 1336 ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). While the Board could again remand the claim for yet another medical opinion, such action could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the weight of the evidence supports a relationship between the Veteran’s diagnosed OSA and service, specifically, that the Veteran had sleep-related symptoms in service that were indicative of sleep apnea which was untreated and undiagnosed. Entitlement to service connection for OSA is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.