Citation Nr: 21014928 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-27 408 DATE: March 16, 2021 ORDER Entitlement to service connection for an inguinal hernia, to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for a hiatal hernia, to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for erosive gastritis, to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for diverticulitis, to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for colon polyps, to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for a hydrocele and scrotal cyst (spermatocele versus epididymal) (claimed as bladder condition), to include as secondary to diabetes mellitus type II, is denied. FINDINGS OF FACT 1. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s inguinal hernia is proximately due to, a result of, or aggravated by diabetes mellitus type II. 2. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s hiatal hernia is proximately due to, a result of, or aggravated by diabetes mellitus type II. 3. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s GERD is proximately due to, a result of, or aggravated by diabetes mellitus type II. 4. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s erosive gastritis is proximately due to, a result of, or aggravated by diabetes mellitus type II. 5. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s diverticulitis is proximately due to, a result of, or aggravated by diabetes mellitus type II. 6. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s colon polyps is proximately due to, a result of, or aggravated by diabetes mellitus type II. 7. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s hydrocele and scrotal cyst (spermatocele versus epididymal) (claimed as bladder condition), is proximately due to, a result of, or aggravated by diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for inguinal hernia, to include as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for hiatal hernia, to include as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for GERD, to include as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for erosive gastritis, to include as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for entitlement to service connection for diverticulitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for entitlement to service connection for colon polyps, to include as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for entitlement to service connection for hydrocele and scrotal cyst (spermatocele versus epididymal) (claimed as bladder condition), to include as secondary to diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 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 January 1967 to December 1968. He died in 2014. The appellant is his surviving spouse who has been substituted as the claimant. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In July 2020, the Board remanded claims of entitlement to service connection for a genitourinary disorder, a gastrointestinal disorder, and erectile dysfunction. The agency of original jurisdiction (AOJ) was asked to procure a medical opinion assessing whether any of the Veteran’s disorders within the scope of the appeal were etiologically related to his service-connected diabetes mellitus type II. The record reflects medical opinions dated September, October, and December 2020. The Board finds that, taken together, the opinions substantially comply with the prior remand directives. Accordingly, the matters are ready for adjudication. The Board notes that the AOJ granted service connection for gastrojejunostomy with placement of jejunostomy tube, removal of gallbladder, and constipation, status post Whipple procedure, pancreatic neoplasm, renal mass of the right kidney, erectile dysfunction, and granted special monthly compensation for loss of use of a creative organ, in an October 2020 rating decision. This is considered a partial grant of the service connection claims on appeal because the record reflects diagnoses of other disorders reasonably encompassed by the appellant’s claim. See AB v. Brown, 6 Vet. App. 35 (1993). The Board will address these remaining disorders in this decision. Neither the appellant nor the evidence of record has raised any other issues. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria - Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110. A disability which is proximately due to or the result of a service-connected disorder shall be service-connected. Any increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disorder will also be service-connected. 38 C.F.R. § 3.310. Service Connection – Analysis The Board finds that the most probative evidence does not reach the level of equipoise in the claims of entitlement to service connection for any of the disorders at issue. Therefore, the appeal must be denied. Prior to the Veteran’s death, the record shows diagnoses of hydrocele, scrotal cysts, hernia, GERD, erosive gastritis, colon polyps, and diverticulitis. The appellant contends that these disorders are proximately due to, a result of, or aggravated by the Veteran’s service-connected diabetes mellitus type II. See 38 C.F.R. § 3.310; see also VA Form 21-4138, Statement in Support of Claim, January 2021. The record reflects a medical opinion from Dr. M.A. dated September 2020. He reviewed the claims file and opined that it is less likely than not that the Veteran’s hydrocele and scrotal cysts are due to or aggravated by diabetes. As rationale, he explained that diabetes does not predispose a patient to a higher risk for the above disorder. In October 2020, Dr. M.A. issued another opinion. He found that, based on his expertise and review of lay and medical evidence in the claims file, it is less likely than not that the Veteran’s hernia, GERD, erosive gastritis, diverticulosis, and colon polyps are proximately due to or a result of diabetes. He explained that there is no medical evidence in literature that supports any such association. Furthermore, Dr. M.A. observed that the Veteran’s mother had a history of colon cancer, and that the Veteran’s colon polyps are likely due to genetic factors. Dr. R.P.M. provided a medical opinion dated December 2020. He reviewed the claims file, including lay and medical evidence, and opined that it is less likely than not that the Veteran’s hernia, GERD, erosive gastritis, diverticulosis, and colon polyps are aggravated by his service-connected diabetes. He concurred with Dr. A.M.’s finding that there is no medical evidence in the literature that supports an association between any of the above disorders and diabetes. He cited to medical evidence to support his conclusions. The Board has reviewed VA treatment and private medical records. However, these records do not support an etiological nexus between the disorders on appeal and the Veteran’s service-connected diabetes mellitus type II. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claims at issue. In making this finding, the Board has considered the medical evidence. Dr. M.A. opined that it is less likely than not that hydrocele or scrotal cysts are due to or aggravated by diabetes. He further opined that it is less likely than not that the Veteran’s hernia, GERD, erosive gastritis, diverticulosis, and colon polyps are proximately due to or a result of diabetes. As Dr. A.M. reviewed the claims file, and rendered a persuasive medical opinion supported by his professional expertise, his findings are entitled to probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has likewise reviewed the medical opinion of Dr. R.P.M., who found that it is less likely than not that the Veteran’s hernia, GERD, erosive gastritis, diverticulosis, and colon polyps are aggravated by diabetes. As Dr. R.P.M. gave a persuasive medical opinion supported by citations to relevant medical evidence, his conclusions are likewise entitled to probative weight. The Board has reviewed the lay evidence, including statements submitted by the appellant, the Veteran’s brother, and his daughter. However, the ability to opine as to an etiological nexus between the Veteran’s disorders and his service-connected diabetes requires complex medical knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The competent medical evidence has found that it is less likely than not that there is a causal relationship between the disorders at issue and diabetes. Therefore, the Board affords such findings higher probative weight. The Board is sincerely grateful for the Veteran’s honorable military service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the present appeal. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that “the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.