Citation Nr: 21025851 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-15 316A DATE: April 29, 2021 ORDER Service connection for diabetes mellitus is denied. REMANDED Service connection for vertigo is remanded. Service connection for a stomach disability is remanded. FINDINGS OF FACT The preponderance of the evidence weighs against finding that the Veteran’s diabetes mellitus is causally related to his service. CONCLUSIONS OF LAW The criteria for service connection diabetes mellitus have not been met. 38 C.F.R. §§ 3.302, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from August 1999 to January 2000 and on active duty from December 2003 to December 2004. The record also reflects a period of active duty from March 2008 to April 2008. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in March 2014 and St. Paul, Minnesota, in October 2015. The Veteran testified at a personal hearing in November 2018 before a Veterans Law Judge (VLJ), and a transcript of the hearing is of record. In a March 9, 2021 correspondence, the Veteran was alerted that the VLJ who held the November 2018 hearing is no longer employed at the Board. The Veteran was given 30 days to request a new hearing but did not respond in the allotted time. The Board will therefore proceed with adjudicating these matters. These matters were remanded by the Board in April 2019 for further evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. Service connection for diabetes mellitus Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Factual Background & Analysis The Veteran contends that he is entitled to service connection for diabetes mellitus. A June 2016 Disability Benefits Questionnaire (DBQ) completed by a private treating physician states that the Veteran was diagnosed with diabetes mellitus in July 2010. The physician stated that the Veteran “most likely had diabetes over the past year.” The Veteran underwent a VA examination in August 2015, and the examiner opined that the Veteran’s diabetes mellitus was not related to service because the Veteran was not diagnosed until 20 months after separation from service. The Veteran testified during a November 2018 hearing that he began experiencing symptoms of tiredness and fatigue in 2008 while awaiting deployment to Afghanistan. The Veteran further communicated that his weight dropped from 250 to 189 pounds in the period between his separation from service and his diagnosis for diabetes mellitus. On September 2019 VA examination the Veteran was diagnosed with type II diabetes mellitus. The examiner opined it is less likely than not that this disability was incurred in or caused by service. The examiner noted that the Veteran’s service treatment records (STRs) are silent for symptoms such as polyuria, polydipsia, dizziness, or weight loss during active duty, including a pre-deployment physical in 2008. Further, they explained that the medical literature supports non-service-related causes for the Veteran’s diabetes such as family history, ethnicity, environmental and lifestyle factors. The examiner further explained that the Veteran’s mother, father and two sisters all have been diagnosed with diabetes. Ultimately, the examiner attributed the Veteran’s diabetes to his particular risk factors such as hypertension, hyperlipidemia, and family history. Initially, the Veteran had active duty from December 2003 to December 2004, and a brief period of active duty service from March 2008 to April 2008. For presumptive service connection to be granted for a chronic disease such as diabetes mellitus, the evidence must show that it manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. § 3.309 (a). However, the qualifying period of service from which the presumptive period stems must have been at least 90 days of continuous service. 38 C.F.R. § 3.307 (a)(1). Consequently, the Veteran’s period of active duty service from March 2008 to April 2008 is not a qualifying period of active duty for the purposes of establishing presumptive service connection for his diabetes mellitus. The Veteran’s latest period of qualifying active duty ended in December 2004 and, by the Veteran’s own admission, he did not begin experiencing symptoms of diabetes until 2008 at the earliest. Therefore, the preponderance of the evidence weighs against finding that the Veteran’s diabetes mellitus manifested to a compensable degree within a presumptive period following a qualifying period of active duty service. Regarding direct service connection, the Board finds that the preponderance of competent medical evidence weighs against finding that the Veteran’s diabetes mellitus was incurred in or caused by his active duty service. In that regard, the September 2019 VA examiner offered a negative nexus opinion after a review of the medical records and determined that the Veteran’s risk factors such as hypertension, hyperlipidemia and family history were the more likely cause of his diabetes mellitus as opposed to events during service. The Board acknowledges the Veteran’s contentions that his diabetes mellitus had its onset in 2008 during his brief period of active duty from March 2008 to April 2008. In the Veteran’s May 2017 substantive appeal (VA Form 9) he stated that the June 2016 private physician’s DBQ contains an opinion stating that he had diabetes mellitus while on active duty. Initially, the assertion that this disability was initially incurred during this very brief period has been addressed by the medical opinions of record. Further, the 2016 private physician’s DBQ merely conveyed that the Veteran likely had diabetes mellitus throughout the year prior to July 2010 when he was diagnosed which does not encapsulate his period of active duty ending in April 2008. Moreover, as a lay person, the Veteran does not have the training or expertise to render a competent nexus opinion regarding the etiology of his diabetes mellitus which is more probative than the VA examiner’s opinion on this issue as this is a medical determination that is complex and requires specific medical training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the September 2019 VA examiner reviewed the lay and medical evidence of record and, based on their medical training and expertise, determined it to be less likely than not that his diabetes mellitus had its onset in or is otherwise related to his service. Further, there is no medical opinion or treatment record authored by a competent medical professional which supports the Veteran’s contention that this disability began during his active duty service. Consequently, the Board finds that the Veteran’s lay contentions regarding the etiology of his diabetes mellitus are outweighed by the competent opinions of the VA examiners of record. See Id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s diabetes mellitus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Service connection for vertigo is remanded. 2. Service connection for a stomach disability is remanded. The Veteran underwent a VA examination regarding his service connection for vertigo claim in December 2015. The examiner determined that the Veteran be scheduled for an electronystagmography (ENG) study to evaluate his claimed vertigo. The examiner explicitly asked that the claim not be adjudicated until an ENG was performed. The ENG was scheduled for January 2016 but the Veteran did not attend this examination and no reason for his absence was provided. Despite the ENG not taking place, the examiner opined in a January 2016 medical opinion that it was less likely than not that the Veteran’s vertigo was caused or aggravated by his service-connected tinnitus. During the November 2018 hearing the Veteran stated that he began experiencing dizziness during service and that he still has slight symptoms of dizziness and lightheadedness. He acknowledged the missed VA examination appointment and stated that he asked to have his examination rescheduled but “they just closed it out also and denied it.” The Veteran further communicated that he felt that his vertigo was due to the frequent bombings and sleepless nights he endured while in Iraq. He also noted that he has not sought treatment for this disability, although a December 2015 VAMC treatment note documents that the Veteran told medical personnel he was experiencing vertigo-like symptoms. Notably, there is no VA medical opinion of record addressing whether the Veteran’s claimed vertigo may be directly related to events during service. The Board will afford the Veteran another opportunity to attend a VA examination to determine the nature and cause of his claimed vertigo disability because he stated his intent to actively participate in the development of his claimed by attending a rescheduled examination. However, the Veteran is reminded that participation in the VA adjudication process is a two-way street, and his further refusal to participate in the requested examination provides a basis upon which to deny the claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (participation in the VA process is a “two-way street”); see also 38 C.F.R. § 3.655 (establishing that absent a showing of good cause, a claimant’s refusal to participate or cooperate during a VA examination is akin to a failure to report and serves as a basis for denial of a claim). Regarding the Veteran’s claimed stomach disability, on September 2019 VA examination the Veteran was noted to have stomach pain and burning in the chest and throat while stationed in Fort Hood, Texas. The examiner noted that the Veteran had an upper gastrointestinal (GI) study done in 2005 and was diagnosed with an unknown condition. The Board finds that a remand is warranted for a new VA examination that considers the above documented GI symptoms and, considering the Veteran’s qualifying service in Southwest Asia, whether the Veteran’s GI symptoms diagnosed as an “unknown condition” may be due to a “a medically unexplained multisymptom illness that is defined by a cluster of signs or symptoms,” such as, functional GI disorder (excluding structural GI diseases).” 38 C.F.R. § 3.317(a)(2)(B)(3). Therefore, this matter is remanded for further development, to include a Gulf War examination, to determine whether the Veteran’s GI symptoms may be characterized as a “qualifying chronic disability” pursuant to 38 C.F.R. § 3.317. The matters are REMANDED for the following action: 1. Associate any additional VA or private treatment records. 2. Schedule the Veteran for the appropriate examinations by appropriate clinicians to determine the nature and etiology of the Veteran’s claimed peripheral vestibular disability (to include vertigo). The clinician/s must respond to the following prompts: (a.) For any diagnosed peripheral vestibular disabilities, please opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current symptoms began in active service or are otherwise related to active service. (b.) Please opine as to whether it is at least as likely as not that any diagnosed peripheral vestibular disabilities are CAUSED or AGGRAVATED by service-connected tinnitus. (c.) Determine whether an ENG is necessary to opine. If not, state why. If so, schedule the Veteran for such testing. Complete and detailed rationales should be included in support of all opinions provided. 3. Then, schedule the Veteran for the appropriate examinations, to include a Gulf War examination, by appropriate clinicians to determine the nature and etiology of the Veteran’s claimed GI symptoms. The clinician/s must respond to the following prompts: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current symptoms began in active service or are otherwise related to active service, to include as due to exposure to harmful substances in Southwest Asia. (Continued on the next page)   (b.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s symptoms constitute a sign or symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to the provisions of 38 C.F.R. § 3.317. Complete and detailed rationales should be included in support of all opinions provided. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.