Citation Nr: 21015763 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-29 081 DATE: March 18, 2021 ORDER Entitlement to service connection for diabetes mellitus type II (DM II) secondary to the Veteran’s service-connected obstructive sleep apnea (OSA) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his DM II was aggravated by his service connected OSA. CONCLUSION OF LAW The criteria for service connection for DM II secondary to the Veteran’s service connected OSA have been met. See 38 U.S.C. §§ 501, 1110, 1131; 38 C.F.R. § 3.310.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Navy from September 1980 to September 1993 and in the Army from August 2003 to February 2012. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for DM II secondary to the Veteran’s service connected OSA. In September 2019, the Veteran testified before the undersigned Veterans Law Judge during a videoconference. The transcript is associated with the claims file. In February 2020, the Board remanded this matter for a VA examination (VAX). All the necessary development has been completed and this matter is ripe for adjudication. SERVICE CONNECTION Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3. 310 (a). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998); Allen, 7 Vet. App. at. 448. Entitlement to service connection for DM II secondary to the Veteran’s service connected OSA is granted. The record establishes that the Veteran has a current diagnosis of DM II. See March 2020 VAX. He is also in receipt of service connection for OSA. The first and second element of secondary service connection are met. Regarding the third element of secondary service connection, a positive nexus opinion has been provided. In March 2020, the Veteran was afforded a VAX. The VA medical examiner found that his DM II was at least as likely as not aggravated beyond its natural progression by his service connected OSA. Based on the review of available articles his OSA would adversely affect his DM II in such a manner that would be considered aggravation. As OSA alters glucose metabolism it promotes insulin resistant and is associated with the development of DM II. OSA has been shown to increase the risk and severity of DM II independent of age and obesity. The Board finds the March 2020 VA medical opinion to be highly probative, as it was based on a thorough review of the Veteran’s claim file and an adequate rationale was provided to support the conclusion. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The medical opinion is afforded substantial probative weight. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the RO continued the denial of the Veteran’s claim noting that it could not be conceded that a nonservice connected disability is aggravated by a service connected disability unless the baseline severity of the nonservice connected disability or injury is established by medical evidence created before the onset of aggravation and here a baseline severity of the Veteran's DM II could not be established. The Board disagrees. The VA examiner found that there was a 50 percent probability or greater that the Veteran’s DM II was aggravated beyond its natural progression by his service connected OSA and cited medical literature to back her opinion. There is medical evidence of record from which a determination can be made as to baseline severity. 38 C.F.R. § 3.310 (b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established. However, that regulation also states that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310 (b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. See also Ward v. Wilkie, 31 Vet. App. 233 (2019). In light of the foregoing, the Board finds that the evidence weighs in favor as to whether the Veteran’s DM II is aggravated by his service connected OSA. Accordingly, the Board will resolve all reasonable doubt in favor of the Veteran and find that secondary service connection is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.