Citation Nr: 21012986 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-31 745 DATE: March 8, 2021 ORDER Entitlement to service connection for diabetes mellitus, also claimed as hyperglycemia, to include as secondary to service-connected status-post thyroidectomy, is denied. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected status-post thyroidectomy, is denied. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus is not proximately due to or aggravated by service-connected thyroidectomy; nor did it manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and it is not otherwise etiologically related to an in-service injury or disease., and is not otherwise related to an in-service injury or disease. 2. The Veteran’s sleep apnea is not proximately due to or aggravated by service-connected thyroidectomy, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, to include as secondary to service-connected thyroidectomy, are not met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 3.310. 2. The criteria for service connection for sleep apnea, to include as secondary to service-connected thyroidectomy, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 until his honorable discharge and retirement in July 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded these matters in October 2018 and August 2020 for further development. The Board finds substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for hypertension and erectile dysfunction were also on appeal and remanded by the Board. However, service connection for these disabilities was awarded in the November 2020 rating decision, representing a full grant of the benefits sought on appeal. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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, Service Connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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 or aggravated during service – the so-called “nexus” requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Certain chronic diseases, such as diabetes mellitus, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310 (a)-(b). 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) Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for diabetes mellitus, also claimed as hyperglycemia, to include as secondary to service-connected status-post thyroidectomy. The Veteran asserts that his diabetes mellitus, type II is secondary to his service-connected thyroidectomy. The question for the Board is whether the Veteran has a current disability that began during service, manifested to a compensable degree within one year of discharge; or is at least as likely as not related to an in-service injury, event, or disease, to include as secondary to service-connected status post thyroidectomy. Initially, the Board concludes that, while the Veteran has a diagnosis of diabetes mellitus, it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, was not noted in service with attributable continuity of symptomatology, or is otherwise related to an in-service injury, event, or disease. In this regard, service treatment are silent with respect to any findings pertaining to diabetes mellitus type II. Moreover, the Veteran has not asserted that his diabetes began during service. Rather, he has primarily asserted that his diabetes mellitus is secondary to his thyroidectomy. Importantly, the medical evidence of record shows that the Veteran was positive for diabetes/hypoglycemia in October 2004, over eight years after his discharge from service, and 7 years outside the presumptive period. In sum, there is no lay or medical evidence of pertinent symptomatology so the service incurrence of diabetes mellitus cannot be presumed. Importantly, the October 2020 VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In sum, the examiner rationalized that the Veteran’s first instance of diabetes/hyperglycemia occurred in October 2004. There was a note in April 1987 where the Veteran was experiencing polyuria, polydipsia, and polyphagia which are symptoms of diabetes, but the glucose at that time was normal at 87 and no further diabetes was worked up at that time. The Veteran was officially diagnosed with diabetes in 2007 after having hyperglycemia for multiple years prior. “Type 2 diabetes develops when the body becomes resistant to insulin or when the pancreas is unable to produce enough insulin. Exactly why this happens is unknown, although genetics and environmental factors, such as being overweight and inactive, seem to be contributing factors” (1). Being overweight or obese with low physical activity, insulin resistance, and genetics are all contributing factors to developing type 2 diabetes (2). Thyroid disease and diabetes are often concurrent diagnoses and thyroid disease is almost twice as likely to occur in those with diabetes (10%) than those without (6.6%) but this is not a causal relationship (3). There is no medical literature that supports that a thyroidectomy causes type 2 diabetes. The diabetes was documented 11 years after the Veteran was discharged from active duty. The examiner concluded that given the results of today's examination and review of the claims file and medical literature, it is less likely than not that the vet’s type 2 diabetes occurred during his time in service. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the above, the Board must find that service connection for diabetes mellitus on a presumptive or direct basis is not warranted. Moreover, the Board concludes the preponderance of the evidence is against finding that the Veteran’s diabetes mellitus is proximately due to or the result of, or aggravated by service-connected status post thyroidectomy. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). In this regard, the October 2020 VA examiner also opined that the claimed condition is less likely than not proximately due to or the result of Veteran’s service connected condition. The examiner rationalized that the conditions of Type 2 diabetes and thyroidectomy are not medically related. The Type 2 diabetes is a separate entity entirely from the thyroidectomy and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. The Veteran Vet was officially diagnosed with diabetes in 2007 after having hyperglycemia for multiple years prior. “Type 2 diabetes develops when the body becomes resistant to insulin or when the pancreas is unable to produce enough insulin. Exactly why this happens is unknown, although genetics and environmental factors, such as being overweight and inactive, seem to be contributing factors” (1). Being overweight or obese with low physical activity, insulin resistance, and genetics are all contributing factors to developing type 2 diabetes (2). Thyroid disease and diabetes are often concurrent diagnoses and thyroid disease is almost twice as likely to occur in those with diabetes (10%) than those without (6.6%) but this is not a causal relationship (3). There is no medical literature that supports that a thyroidectomy causes type 2 diabetes. The diabetes was documented 11 years after the Veteran was discharged from active duty. Given the results of today's exam and review of the C file and medical literature, it is less likely than not that the Veteran’s type 2 diabetes is caused by his thyroidectomy. Likewise, the examiner also found that the Veteran’s diabetes mellitus was not at least as likely as not aggravated by his thyroidectomy. In sum, the examiner rationalized that there is no medical literature that supports that a thyroidectomy causes or aggravates type 2 diabetes and there are studies being conducted now about if a thyroidectomy will actually lower blood sugars rather than raise them. The diabetes was documented 11 years after the Veteran was discharged from active duty. Given the results of today's exam and review of the C file and medical literature, it is less likely than not that the Veteran’s type 2 diabetes is aggravated by his thyroidectomy. The Board notes that the Court held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. However, here, although the VA examiner used the term beyond its natural progression, the VA examiner did not indicate that there was any incremental or transient increase. Rather, the examiner found that there was no causal relationship. The Board recognizes that a February 2012 private opinion reported that that after the removal of the thyroid, the Veteran manifested significant metabolic abnormalities. These metabolic abnormalities created hypertension, hyperglycemia, and later diabetes mellitus. He then developed erectile dysfunction, which is likely related to his antihypertensives and diabetes mellitus. He also suffered from sleep apnea, which was produced by his thyroid disease. However, the Board finds that this opinion is outweighed by the October 2020 VA opinion as this statement did not include an adequate rationale for the opinions provided. Again, the VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his diabetes mellitus is related to an in-service injury, event, or disease; or proximately due to or the result of/aggravated by his service-connected status post thyroidectomy. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim for service connection for diabetes mellitus, type II. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected status-post thyroidectomy. The Veteran also contends that his sleep apnea is secondary to his service-connected thyroidectomy. The question for the Board is whether the Veteran has a current disability that is related to an in-service injury, event, or disease, or secondary to his service connected thyroidectomy. Initially, the Board concludes that, while the Veteran has a diagnosis of sleep apnea, the preponderance of the evidence is against finding that it began during active service, within one year of discharge, or is otherwise related to an in-service injury, event, or disease. In this regard, service treatment are silent with respect to any findings pertaining to sleep apnea. Moreover, the Veteran has not asserted that his sleep apnea began during service. Rather, he has primarily asserted that his sleep apnea is secondary to his thyroidectomy. Importantly, the medical evidence of record shows that the Veteran was diagnosed with sleep apnea in May 2013, over 17 years after his discharge from service. Importantly, the October 2020 VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In sum, the examiner rationalized the claims file was positive for sleep apnea on 5/22/13. “Obstructive sleep apnea occurs when a person’s airway becomes blocked during sleep. Multiple factors have been found to increase the risk of blockage and OSA” including anatomical changes in the upper airway, obesity, sedatives, cigarette smoking, nasal congestion, under or overactive thyroid (1). “Hormone conditions like hypothyroidism may increase the risk of OSA by causing swelling of tissue near the airway and/or contributing to a person’s risk of obesity” but the risk lowers once the thyroid hormones are normalized (1). Obesity is the best documented risk factor for OSA. Thyroidectomy has been proven to reduce the risk of sleep apnea, not increase it (2, 3). The sleep apnea was documented 17 years after the Veteran was discharged from active duty. Given the results of today's exam and review of the claims file and medical literature, it is less likely than not that the vet’s sleep apnea occurred during his time in service. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the above, the Board must find that service connection for sleep apnea on direct basis is not warranted. Moreover, the Board concludes the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated by service-connected status post thyroidectomy. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). In this regard, the October 2020 VA examiner also opined that the claimed condition is less likely than not proximately due to or the result of Veteran’s service connected condition. In sum, the examiner rationalized that the conditions of sleep apnea and thyroidectomy are not medically related. The sleep apnea is a separate entity entirely from the thyroidectomy and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. The examiner reiterated the primary risk factors for sleep apnea and again noted that thyroidectomy has been proven to reduce risk of the sleep apnea not increase it. The concluded that given the results of today's exam and review of the claims file and medical literature, it is less likely than not that the Veteran’s sleep apnea is caused by his thyroidectomy. Likewise, the examiner also found that the Veteran’s sleep apnea was not at least as likely as not aggravated by his thyroidectomy. In sum, the examiner rationalized obesity is the best documented risk factor for OSA. Thyroidectomy has been proven to reduce the risk of sleep apnea, not increase it (2, 3). The sleep apnea was documented 17 years after the Veteran was discharged from active duty. Given the results of today's exam and review of the claims file and medical literature, it is less likely than not that the Veteran’s sleep apnea is aggravated by his thyroidectomy. Again, although the VA examiner used the term beyond its natural progression, the VA examiner did not indicate that there was any incremental or transient increase. Rather, the examiner found that there was no causal relationship. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Again, the Board recognizes that a February 2012 private opinion reported that that after the removal of the thyroid, the Veteran manifested significant metabolic abnormalities. These metabolic abnormalities created hypertension, hyperglycemia, and later diabetes mellitus. He then developed erectile dysfunction, which is likely related to his antihypertensives and diabetes mellitus. He also suffered from sleep apnea, which was produced by his thyroid disease. However, as discussed above, the Board finds that this opinion is outweighed by the October 2020 VA opinion as this statement did not include an adequate rationale for the opinions provided. Again, the VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his sleep apnea is related to an in-service injury, event, or disease; or proximately due to or the result of/aggravated by his service-connected status post thyroidectomy. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence.   In conclusion, the Board finds that the preponderance of the evidence weighs against the claim for service connection for sleep apnea. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.