Citation Nr: 21074534 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-41 454A DATE: December 15, 2021 ORDER Service connection for diabetes mellitus, type II, (DMII) is denied. FINDING OF FACT The Veteran's DMII has not been shown to be causally or etiologically related to any disease, injury, or incident during service and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for DMII have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to October 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office. On May 7, 2018, the Veteran testified at a Board hearing before a Veterans Law Judge; a transcript of the hearing is associated with the record. The case was first before the Board in September 2018, at which time the Board remanded the case. The case returned to the Board in February 2020, and the Board denied the Veteran's claim of service connection for DMII. The Veteran appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the case. In July 2021, the Board remanded the case for additional development; it now returns to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for DMII, to include as secondary to service-connected disability. The Veteran asserts his DMII had its onset in active service. Alternatively, he contends his DMII is attributable to his service-connected disabilities, including arthritis of the right shoulder and left foot calluses. As an initial matter, the Board finds the evidence of record reflects a current diagnosis of DMII, as shown by VA examinations in September 2013 and July 2019. The Veteran's service treatment records (STRs) are silent for any complaint of, treatment for, or diagnosis referable to DMII. In Reports of Medical Examination from June 1976 and October 1980, the examiners found that the Veteran's urinalysis was negative for albumin or sugar, and the condition of the Veteran's vascular system was normal. In a June 1976 Report of Medical History, the Veteran reported that he had not ever had eye trouble, frequent or painful urination, or sugar or albumin in his urine. In an August 2012 statement, the Veteran opined that he was undiagnosed and untreated for diabetes during active service, which allowed the disease to manifest to a greater degree. He asserted that the disease was undetected during active service. He stated that, during active service, he had frequent urination, blurred vision, obesity, and high glucose levels. He also stated that he experienced many upper respiratory infections, and he was very slow to heal when he got sick during active service. The Veteran stated that, even though he was diagnosed with DMII many years after active service, he still feels that his disease was there during active service but was not treated until years later. He noted that diabetes runs in his family. At the May 2018 Board hearing, the Veteran reported that, prior to active service, he had a diagnosis of juvenile diabetes, and during active service, he had symptoms that included blurred vision, frequent urination, thirst, and weight fluctuation. The Veteran reported that he was actually diagnosed with diabetes in the mid-1980s. He noted that his father and sister were diabetic as well. The Board herein takes judicial notice that juvenile diabetes, also known as diabetes mellitus, type I, is not the same as DMII. The Board also notes that, although the Veteran has stated during the period on appeal that he experienced DMII symptoms during active service, this statement is inconsistent with the objective evidence of record, including the Veteran's STRs described above. In weighing credibility, the VA may consider inconsistent statements and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Looking at the Veteran's post-service treatment records, in a February 2001 VA treatment note, the Veteran was noted to have diabetes. In a May 2006 VA Nursing Triage Note, the Veteran was again noted to have diabetes, as well as a positive family history for diabetes in his father, sister, and son. In a May 2006 VA Primary Care Attending Initial Evaluation Note, the Veteran was noted to have uncontrolled DMII that he reported was diagnosed in 1992. In a September 2006 VA Ophthalmology Consult, the Veteran reported that he had had diabetes since 1991. In a May 2009 private treatment note, the Veteran reported that he had a history of diabetes mellitus for over 15 years. In a December 2009 VA Ophthalmology Consult, the Veteran reported that he has had diabetes since 2006. In a June 2013 VA Endocrinology Consult, the Veteran was noted to have been diagnosed with diabetes about 15 to 20 years ago. In a December 2013 VA Diabetology Note, the Veteran was noted to have diabetes for approximately 20 years. At a September 2013 VA examination, the VA examiner provided a diagnosis of DMII. The Veteran reported that the onset of his symptoms was in 1977. He stated that he became sick during boot camp and was diagnosed in the early 1980s. The VA examiner found no medical records for diabetes mellitus during the Veteran's active service. The VA examiner stated that he could not opine beyond speculation that the diabetes mellitus was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. No medical records for diabetes mellitus were found during active service, and she could not find the onset of DM. Hence, the VA examiner determined there was no connection between DM II and service. At the May 2018 Board hearing, the Veteran reported that, when he first entered active service, he weighed 222 pounds, and he was informed that his standard weight should be 195 pounds. He was told he would be put on a weight loss program. Looking at the Veteran's STRs, in a June 1976 Report of Medical Examination, the examiner recorded that the Veteran's weight was 209 pounds. In an October 1980 Report of Medical Examination, the examiner recorded that the Veteran's weight was 225 pounds, and he was overweight at 28 pounds above the maximum weight. The examiner reported that the Veteran was placed on a weight control program in July 1979 and removed from the program in February 1980 after failing to reduce to an acceptable weight within 6 months. The examiner noted that the Veteran was qualified for release from active duty but not for retention or reenlistment at this time due to his overweight condition. In July 1979, the Veteran signed a statement saying that he had been advised that he is overweight by current standards due to dietary indiscretion, which is a condition not considered a physical disability and usually may be controlled by his strict adherence to the prescribed dietary control measures. He understood that he would receive a special physical examination, and in the event that the examination indicates that he had continued to demonstrate nonadherence to the proper dietary regime and/or his obesity is considered such as to render him militarily not suitable, he may be administratively separated from the naval service for the convenience of the Government. A record from June 1980 stated that the Veteran had failed the Navy's weight control program. The Veteran had begun the program in July 1979 with a body weight of 214 pounds; at the time of this record, he weighed 229 pounds, which was 37 pounds over the maximum limit. At a July 2019 VA examination, the Veteran reported that his DMII occurred spontaneously and gradually over time in 2006. His symptoms included increased urination, unusual thirst, weight loss, weight gain, blurred vision, tingling feet and hands, numbness around the mouth, tiredness, and sluggishness. The VA examiner determined that the DMII was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner found that there were no progressive and longitudinal reports of blurred vision, frequent urination, thirst, or weight fluctuation between 1980 and 2006 to establish service connection. The VA examiner found that the Veteran's complaint of being overweight during active service had no pathophysiologic relation to the current diabetes since there were no records showing progressive signs or symptoms related to diabetes for many years between 1980 and his official diagnosis of diabetes. The VA examiner explained that there is no direct causal relationship of being overweight and diabetes mellitus. It is one of many factors that is a risk factor but not necessarily a cause of diabetes. The Board acknowledges that the July 2019 VA examiner primarily discussed the Veteran's record of having diabetes in 2006 and did not note the 2001 VA treatment note reporting that the Veteran had diabetes. However, the 2001 VA treatment note was still more than 20 years after the Veteran's separation from active service, and the July 2019 VA examiner's rationale still applies and competently addresses the evidence of record. Notably, no other evidence of record demonstrates a causal relationship between the Veteran's DMII and his active service. Based on the foregoing, the Board finds that the Veteran's DMII is not shown to be causally or etiologically related to any disease, injury, or incident in service. Thus, service connection for DMII on a direct basis is not warranted. The Board has also considered whether the Veteran's DMII is secondary to his service-connected disabilities. As noted earlier, the Veteran has asserted that his DMII is attributable to his service-connected disabilities, including arthritis of the right shoulder and left foot calluses. More specifically, the Veteran has asserted that his service-connected right shoulder and left foot have caused the Veteran to become obese, and this in turn has led to his DMII. In this regard, the Board notes that obesity may act 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). See VAOPGCPREC 1-2017. However, in order to show secondary service connection is warranted under such a theory, a veteran must show (1) that his service-connected disability caused or aggravated his obesity and, if so, (2) whether the obesity as a result of the service-connected disability was a substantial factor in causing or aggravating his claimed condition, and (3) whether the claimed condition would not have occurred or worsened but for obesity caused by the service-connected disability. Id; Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a November 2013 notice of disagreement, the Veteran stated that he felt his DMII was secondary to his joint problems and not being able to work out due to the high level of pain. Looking at the Veteran's post-service treatment records, in a February 2001 VA treatment note, the Veteran was noted to weigh 223 pounds and have a BMI of 31.2. In a February 2001 VA NEGA Primary Care Note, the Veteran was noted to be obese. In a July 2015 VA Nutrition Outpatient Initial Evaluation Note, the Veteran was noted to be obese, and the examiner found that the Veteran's obesity was related to excess caloric intake over time. The September 2013 VA examiner opined the Veteran's DMII was less likely than not proximately due to or the result of the Veteran's service-connected condition. The VA examiner observed that the STRs show that the Veteran was placed on a weight reduction program but was removed from it due to failure to lose weight. The VA examiner also could not determine a baseline level of severity of the diabetes mellitus based on medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected condition. The examiner found that there were no medical records showing any baseline level of severity of diabetes mellitus or the earliest medical evidence following aggravation by the service-connected condition. The September 2013 VA examiner also found that the Veteran's DMII was less likely than not aggravated beyond its natural progression by his service-connected condition. In a September 2021 VA medical opinion, the VA examiner determined that the Veteran's obesity was not caused or aggravated by his service-connected left foot and/or shoulder disabilities. The VA examiner specifically found there was no evidence that the Veteran's service-connected disabilities contributed to the increase in weight or provided a hinderance to losing weight. The VA examiner explained that the Veteran's food intake superseded his physical output, and per records, his weight had been a struggle since he was in active service. The Board affords great probative weight to the September 2021 VA examiner's opinion regarding service connection on a secondary basis. Here, the examiner considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the opinion is consistent with the contemporaneous medical evidence of record. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 284, 297 (1997). Notably, there is no competent medical opinion to the contrary. In this regard, the Board has considered the Veteran's statements that his DMII is caused by or related to his active service or, in the alternative, proximately due to his service-connected disabilities and obesity. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such complex medical matters as to the nature and etiology of his DMII. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to the etiology of his DMII are not competent evidence and, consequently, are afforded no probative weight. Based on the above, the Board finds that the preponderance of the evidence is against a grant of service connection for DMII. In reaching the foregoing conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and his claim of service connection for DMII must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.