Citation Nr: 21007335 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-19 186 DATE: February 9, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to medication taken for a service-connected psychiatric disability, is denied. FINDING OF FACT The Veteran’s diabetes mellitus, type II, was not shown in service and is not otherwise related to active duty to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to medication taken for a service-connected psychiatric disability. CONCLUSION OF LAW The criteria for Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to medication taken for service-connected psychiatric disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 194 to October 1985. This matter returns to the Board of Veterans’ Appeals (Board) following the issuance of a December 2018 remand order from the Court of Appeals for Veterans’ Claims (CAVC) and a July 2019 Board remand order, both of which directed for additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including diabetes mellitus, may 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 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). Additionally, effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminated drinking water at Camp Lejeune. Under the new regulations, a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of 38 C.F.R. § 3.307 (a)(7), the following diseases will be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): (1) kidney cancer; (2) liver cancer; (3) Non-Hodgkin’s lymphoma; (4) adult leukemia; (5) multiple myeloma; (6) Parkinson’s disease; (7) aplastic anemia and other myelodysplastic syndromes; and (8) bladder cancer. 38 C.F.R. § 3.309 (f). In addition to the regulations cited above, service connection may be established for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to contaminated water at Camp Lejeune and/or as secondary to medication taken for service-connected psychiatric disability The Veteran contends that his diabetes mellitus, type II, are related to his active duty service. Specifically, that it is due to his exposure to contaminated water while stationed at Camp Lejeune. He has also asserted that the Abilify prescribed for his service-connected psychiatric disability aggravates or is the source of his diabetes mellitus, type II. The question for the Board is whether the Veteran has a chronic disease that manifested in service or to a compensable degree within one year of separation from service, whether continuity of symptomatology has existed since service, whether he has a disease associated with exposure to contaminants in the water supply at Camp Lejeune, or whether his diabetes mellitus, type II was caused or aggravated by medication prescribed for a service-connected psychiatric disability. In this case, the Veteran's service treatment and personnel records indicate he was stationed at Camp Lejeune from January 1985 to March 1985. As such, he is presumed to have been exposed during that service to contaminants in the Camp Lejeune water supply. However, diabetes mellitus is not among the eight diseases entitled to presumptive service connection based on such exposure. 38 C.F.R. § 3.309(f). As such, the Camp Lejeune contaminant presumption is not available to this Veteran for this claim. Similarly, the Board concludes that while the Veteran has diabetes mellitus, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), the evidence does not demonstrate that it manifested to a compensable degree within a year of separation from service, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Rather, the medical evidence of record reflects the Veteran was diagnosed with diabetes mellitus, type II in 2010, approximately 25 years after separation from service. The large gap in treatment for an acquired psychiatric disorder weighs against the Veteran’s claim. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Therefore, service connection for diabetes mellitus, type II is not warranted on a presumptive basis under the provisions of 38 C.F.R. § 3.309(a). Service connection for diabetes mellitus, type II, may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's diabetes mellitus, type II, and an in-service injury or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Similarly, the preponderance of the evidence is against finding that the Veteran's service-connected psychiatric disability, including the prescribed medication Abilify, caused or aggravated his diabetes mellitus, type II. The Veteran’s service treatment records are silent for any signs, symptoms, treatment, or a diagnosis of diabetes mellitus, type II or a related disorder. The Veteran’s weight and endocrine system were reported as normal throughout his period of service. Post-service medical evidence of record reflects that the Veteran was diagnosed with diabetes mellitus, type II, in 2010. During an initial psychiatry visit in April 2007 the Veteran was prescribed Abilify (aripiprazole) to address his auditory hallucinations. VA treatment records document the Veteran's reports of a family history of diabetes mellitus and notations by treating psychiatrists that VA must check the Veteran's blood glucose regularly as a result because Abilify increases the risk of diabetes. To that end, the Veteran was provided with VA medical examinations in December 2014 and May 2017 to address the nature and etiology of his diabetes mellitus, type II. An addendum opinion was obtained in April 2020 to address the potential effect that the Veteran’s prescribed Abilify had on development of his diabetes mellitus, type II either by the way of cause or aggravation. The December 2014 VA examiner reviewed the claims file and opined it was less likely than not that the Veteran's diabetes mellitus, type II was caused by or the result of exposure to contaminated water at Camp Lejeune. Citing numerous epidemiological studies, the reviewing physician explained that there was no medical evidence to support the conclusion that diabetes mellitus, type II is caused by exposure to volatile organics. The examiner identified the Veteran's risk factors for developing diabetes mellitus, type II, observing the weight gain documented between military service and the onset of the Veteran’s diabetes, type II, and opined that obesity was the most likely cause of the Veteran's diabetes mellitus, type II. Next, the May 2017 VA examiner opined it was less likely than not that the Veteran's diabetes mellitus, type II, was related to service or caused or aggravated by his service-connected psychiatric disability. The Veteran indicated that his diabetes mellitus, type II, was uncontrolled at the time. The examiner explained that diabetes is a disease caused by insulin resistance and impairment of the body to metabolize glucose effectively and that there is no medical evidence that mental illness is a risk factor for diabetes. However, the examiner also noted that the Abilify prescribed to the Veteran for his service-connected psychiatric disability may cause weight gain and expose the Veteran to a higher risk for developing diabetes. The examiner did not provide a definite opinion regarding the potential link between the Veteran’s diabetes mellitus, type II, and his prescribed Abilify. The Veteran was afforded an examination in April 2020 to resolve the ambiguity regarding the potential relationship between his diabetes mellitus, type II, and Abilify. The examiner performed a review of the Veteran’s e-folder and electronic health record and opined that his Abilify was less likely than not the cause of, or an aggravating factor in the development and course of his diabetes mellitus, type II. The examiner noted that the Veteran’s worst HgA1c (a reading use to measure blood sugar levels over the past 2-3 months) readings took place at a time when the Veteran was not compliant with his prescribed Abilify. The results showed a 12.4% HgA1c level in October 2017, at this medical appointment, the Veteran stated that he had not been taking his Abilify since July 2017. The examiner noted that the Veteran’s diabetes mellitus has been poorly controlled by the Veteran citing poor diet control or use of insulin (citing refill history). The examiner also noted that the Veteran indicated having trouble controlling his blood glucose levels and that he often drank sodas. Finally, the examiner noted that the Veteran was on a small dose of Abilify in October and November 2017 (15mg per day) and that the medication was discontinued in 2018. However, the Veteran continued to gain weight and his diabetes remained poorly controlled. Overall, the examiner noted that the evidence did not indicate a positive correlation between his diabetes mellitus and Abilify, noting that there was a pattern of behavior by the Veteran defined by poor control of his blood glucose levels and diabetes. The Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a relationship between his diabetes mellitus, type II, and active service or another service-connected disability. In arriving at this conclusion, the Board acknowledges the Veteran’s statements that his current disorder was caused by exposure to contaminated water at Camp Lejeune, and/or due to the Abilify he was previously prescribed for his service-connected acquired psychiatric disorder. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of his diabetes mellitus, type II. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because this disorder is not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between his service and his current disorder. While the Board does not dispute the Veteran’s sincerity in describing his symptoms, the weight of the medical evidence is against a finding that they are etiologically related to his active service or another service-connected disability. Therefore, the Veteran’s lay statements that his current diabetes mellitus, type II, is related to his service or another service-connected disability are found to lack competency. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran’s diabetes mellitus, type II, to an event, injury, or disease incurred in service. Therefore, service connection must be denied. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel