Citation Nr: 21008167 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 09-23 029A DATE: February 11, 2021 ORDER Service connection for diabetes mellitus, type II (DM) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from November 1980 to October 1992. 2. DM was not shown in service, is not causally or etiologically related to service, and is not caused by or permanently worsened in severity by a service-connected disability. CONCLUSION OF LAW DM was not incurred in service or aggravated by service nor is it proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified at a February 2016 Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In February 2020, the Board notified him that the VLJ that conducted the February 2016 hearing was no longer employed by the Board and that he had the opportunity to testify at another hearing. In March 2020, he responded that he did not want another hearing. A copy of the transcript of the hearing is in the file. As a procedural matter, in August 2017, the Board denied service connection for DM. The Veteran appealed to the Veterans Claims Court. In a November 2018 Joint Motion for Remand (JMR), the Court Clerk vacated the Board’s decision and remanded the issue with directions to further develop the file in support of the Veteran’s claim. In March 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for appellate action. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As to the first element of service connection on any basis, the medical evidence reflects a current diagnosis of DM. In this regard, an August 2020 VA examination report reflects a current diagnosis of DM. As such, the criteria of a current disorder have been met. As to an in-service incurrence, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of DM. On a June 1992 separation examination, clinical evaluation of the endocrine system was normal. Urinalysis was negative for sugar. Therefore, the medical evidence does not support direct service connection based on an in-service incurrence. Next, DM is a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As noted above, the STRs are silent for complaints of, treatment for, or a diagnosis of DM. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the medical evidence shows the Veteran first treated for elevated glucose levels in January and May 1994. The November 2016 VA examiner noted the Veteran’s elevated glucose levels in 1994; however, the examiner noted that those abnormal levels resulted in a diagnosis of impaired fasting glucose, which was not DM. Rather, DM was not diagnosed in 1999. The Veteran separated from service in October 1992. The medical evidence shows that symptoms of his current disability developed in 1999 almost seven years after service. While he maintains that DM was incurred in service, this is not supported by the contemporaneous evidence. As such, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, DM did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1992 but did not note symptoms until 1994 at the earliest, at which time the Veteran was diagnosed with impaired fasting glucose. He was not diagnosed with DM until 1999. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. Next, the Veteran’s primary contention is that service connection is warranted for DM because it is secondary to service-connected hypertension. In November 2012, August 2019 and November 2019, he submitted numerous medical treatise articles concerning a relationship between DM and hypertension. As noted, the Veteran has a diagnosis of DM and the first element of secondary service connection is met. Further, he has been service connected for hypertension since 1996, therefore the second element of secondary service connection a service-connected disability is also met. As to the third element of secondary service connection a link between DM and hypertension the weight of the medical evidence does not support the claim. Evidence weighing against the claim consists of two separate VA medical examinations and opinion reports. Specifically, in a November 2016 VA examination, after a thorough review of the record and examination of the Veteran, the examiner opined that it was less likely than not that DM was of service onset or otherwise related to service. The examiner reasoned that the STRs were silent for a diagnosis or treatment for DM and that medical records within one year of separation were likewise silent for such a diagnosis or treatment. With regard to the elevated glucose levels in 1994, the examiner noted that those abnormal levels resulted in a diagnosis of impaired fasting glucose, which was not DM. This was diagnosed in 1999 and was “a stand-alone entity, neither due to nor aggravated by active military service.” Regarding the December 2012 opinion of a private physician, Dr. A. S., it was noted that there was no indication that he had reviewed the STRs or the remainder of the record and, in fact, made no comment regarding the Veteran’s DM. The examiner also opined that it was less likely than not that DM was proximately due to or aggravated by a service-connected disability. The examiner reasoned that a review of current medical literature was silent for any mechanism by which the Veteran’s service-connected disabilities may cause or aggravate DM. This was a “stand-alone entity” that was neither due to nor aggravated by a service-connected disability. Next, on an August 2020 VA examination, after a thorough review of the record and examination of the Veteran, the examiner opined that it was less likely than not that DM was of service onset or otherwise related to service. The examiner reasoned that based on a review of the medical records and articles submitted by the Veteran, no evidence was found to indicate that DM was shown during service. Further, the examiner reflected that DM was less likely than not proximately due to or the result of service-connected hypertension. The examiner reasoned that, based on a review of the medical record, articles submitted by the Veteran and an examination of the Veteran, no evidence was found to indicate that DM was the result hypertension or any other of the Veteran’s service connected disabilities. In addition, no medical evidence was found to support hypertension causing DM. Further, the examiner found that DM was not aggravated beyond its natural progression by service-connected hypertension. On the other hand, evidence in support of the claim consists of medical articles submitted by the Veteran in November 2012, August 2019 and November 2019, concerning a relationship between DM and hypertension, as well as his testimony and lay statements. After considering the totality of the evidence, the medical evidence weighs against the claim. In this regard, the Board has afforded great probative weight to the medical opinion provided at the August 2020 VA examination. The opinion was based on an examination of the Veteran as well as a review of his medical history and the articles submitted by the Veteran and considered his contentions. Additionally, there is no evidence that any essential fact was misstated or improperly relied upon in rendering the opinion. Most importantly, there is no medical opinion which tends to contradict either opinion. As such, the medical evidence does not support service connection on a secondary basis. The Board has also carefully considered the articles submitted by the Veteran regarding any causal relationship between DM and hypertension. The Court has indicated that treatise evidence may suffice to establish nexus in instances where “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998). Significantly however, the Court has also held that treatise materials generally are not specific enough to show nexus, id. at 317, and that medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). In this situation, the August 2020 medical opinion addressed the Veteran’s specific case and rendered an opinion following examination of the Veteran and a review of his medical history, which is more probative than generic treatise evidence. The examiner provided an adequate rationale and considered the Veteran’s submitted articles. Importantly, these articles and abstracts are broad and general and are not directly and specifically pertinent to his individual case. Accordingly, they are afforded less probative weight. Further, while medical treatise evidence can provide important support when combined with an opinion of a medical professional, such a medical nexus has not been provided. Mattern v. West, 12 Vet. App. 222, 228 (1999). As such, this evidence is not dispositive and does not outweigh the findings of the August 2020 VA opinion which was based on a specific examination of this Veteran. The Board has considered the Veteran’s testimony and lay statements that DM was caused by his service-connected hypertension. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. Further, the medical treatise and article evidence does not relate to this particular Veteran. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.