Citation Nr: 21004804 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-15 255 DATE: January 28, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as secondary to obesity caused by an inability to exercise due to service-connected disabilities, is denied. FINDING OF FACT The probative evidence of record does not show a medical nexus between the Veteran’s military service and his diabetes. CONCLUSION OF LAW The criteria for service connection for diabetes, to include as secondary to service-connected lumbar strain, residuals of left leg stress fracture, right knee shin splints and/or hypertension, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the U.S. Army Reserve from September 1994 to March 1995 and had additional periods of service in the National Guard until May 2000. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim was remanded by the Board in September 2015, May 2017, August 2018 and August 2020. The Board finds that there has been substantial compliance with the Board’ remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship-nexus-between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) proximately caused by or (b) aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a)-(b) (2016). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (a)-(b) (2016). Service connection for certain chronic diseases, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is legally presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). To establish service connection for a chronic disease under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307 ), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Obesity cannot qualify as an in-service event to warrant service connection for another disability because it occurs over time. Although service connection is not allowed for obesity on its own, obesity could act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 01-17 (January 6, 2017). Entitlement to service connection for diabetes mellitus type II The Veteran contends “that he should be granted service connection for the diabetes on a secondary basis. The appellant contends that service-connected disabilities of lumbar spine strain, residuals of left leg stress fracture, hypertension, and right knee shin splints do not allow him to work out in any capacity to lose weight. Because of this, he contends that he is now obese which has caused diabetes. See January 2021 Appellate Brief. The Veteran has been diagnosed with diabetes mellitus type II. See September 2020 C&P Exam, p. 1. As such, the first element of service connection has been met. As the Veteran is service connected for lumbar strain, shin splints, left leg fracture residuals, and hypertension, the second element of service connection is met. The Board thus turns to the third element of service connection. The question of whether a nexus exists is a medical determination that requires a competent nexus opinion, as the determination of the etiology of the Veteran’s disability is a complex medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran submitted a claim of service connection for diabetes in December 2010. Service treatment records are silent for any symptoms, diagnoses or treatment for abnormalities characteristic of diabetes. His enlistment physical examination showed that he was 69.5 inches tall, and weighed 216 pounds, and was satisfactory for service. A private treatment record in December 2006 noted that the Veteran weighed 250 pounds, was on a diabetic diet, and worked as a cook. A June 2010 record of private medical care, a physician noted that the Veteran weighed 380 pounds. In addition to service-connected disabilities, he was also diagnosed with heart disease, obstructive sleep apnea, diabetes, and obesity. In February 2011, the physician noted that the Veteran was inconsistent with his diet and lost no weight. In a March 2011 statement, the Veteran reported that he had diabetes, hypertension, and congestive heart failure and was working with his physicians and a nutritionist for healthy meals and to control weight. He contended that his leg injury precluded exercise. In October 2012 the Veteran was provided a VA examination for diabetes, hypertension, back and leg disabilities. The examiner noted that the Veteran’s diabetes required oral medication and insulin but no restriction of activities. In September 2015 the Board issued remand orders, having found that the October 2012 examination was not adequate as the examiner did not offer any opinion regarding the etiology of the Veteran’s disability. The Veteran was provided a medical examination in December 2015 and February 2016. However, the examiner did not provide the requested medical opinion regarding the Veteran’s diabetes and obesity, as such, the Board issued remand orders in May 2017 for an opinion addressing whether the Veteran’s obesity pre-existed service, and if so, whether the Veteran’s increase in weight was likely due to an inability to exercise, as caused by the Veteran’s service-connected bilateral tibial stress fractures. In a July 2017 medical opinion, a VA contract physician noted, “Stress fractures will limit activity and increase the risk for obesity and its complications, such as diabetes. However, appropriate care for his stress fractures should have resolved the issues. There is no evidence in the medical literature that stress factors are an identified risk factor for long term weight problems and development of diabetes.” In August 2019, the Board found the opinion to be inadequate as the examiner relied on medical literature without considering facts specific to the Veteran’s injury. As such, the Board issued remand orders for a new opinion. A medical opinion was provided in August 2019. A physician noted: Diabetes and 5% of Type 2 Diabetes occurs in individuals who are not obese so the probability of obesity or inability to exercise for causing diabetes or aggravating it is not likely. The veteran also was in cardiac rehab and had CHF so weight fluctuations are common with these conditions. Diabetes is also an endocrine disease and is not caused by chronic musculoskeletal conditions including limitation of left leg flexion, lumbar strain, or right knee shin splints. The veteran’s records also show a normal EGFR on 6/3/13 and his most current on 8/28/19.No evidence linking hypertension to the development of DM. However, the Board found the examination to be inadequate, as the examiner’s rational considered obesity as a service-connected disability, rather than as an intermediate step between the Veteran’s service-connected disability and his current diabetes. As such, in August 2020, the Board issued remand orders for a new opinion. In September 2020, another opinion was provided by a VA nurse practitioner. The physician continued to note that the Veteran’s diabetes was treated with oral medication and insulin but that there were no restrictions on activities. There, the physician opined that it was less likely than not that the Veteran’s diabetes was proximately due to or the result of any service connected disabilities. In doing so, she stated: While veteran claims that his DM is secondary to his back, left knee, right leg shin splints and hypertension in service, it does not take into consideration that he had ample time for the stress fractures to heal after service. Had he engaged in healthy dietary and exercise habits, he would less likely as not would have gained excessive weight. It is less likely as not that veteran's service connected disabilities of back, left knee and shin splints and hypertension caused veteran to become obese, as there are many low-impact cardiovascular activities which can be utilized, along with healthy diet, which could have been used to maintain weight. These are life-style choices. While obesity is a risk factor for development of diabetes mellitus, it is not the only factor for consideration. This was already addressed on prior examination and medical opinion, to which I concur. ‘Weight gain and obesity worsen insulin resistance, but the majority of people with obesity do not have type 2 Diabetes and 5% of Type 2Diabetes occurs in individuals who are not obese so the probability of obesity or inability to exercise for causing diabetes or aggravating it is not likely. See September 2020 C&P Exam. The Board affords the September 2020 opinion to be of significant probative value, as the examiner reviewed the Veteran’s medical records, considered his lay statements and provided a detailed rationale supported by the record. A careful review of the record has not uncovered any positive nexus opinions. In the absence of a positive nexus opinion, the third element of service connection has not been met and as such service connection for the Veteran’s diabetes may not be granted. In reaching this conclusion, the Board acknowledges that the Veteran believes that his current diabetes was caused by his service-connected disabilities. The Board has considered the Veteran’s lay statements. However, the Veteran is not shown to possess the requisite medical training or expertise to provide a competent opinion regarding the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.