Citation Nr: 21028076 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-21 392 DATE: May 10, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for diabetic retinopathy is granted. Entitlement to service connection for diabetic neuropathy affecting the right lower extremity is granted. Entitlement to service connection for diabetic neuropathy affecting the left lower extremity is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's service-connected posttraumatic stress disorder (PTSD) with major depressive disorder aggravated his diabetes mellitus, type II. 2. The evidence is at least evenly balanced as to whether the Veteran's diabetic retinopathy and bilateral lower extremity neuropathy are caused by his now service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, as secondary to service-connected psychiatric disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for diabetic retinopathy, as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for diabetic neuropathy affecting the right lower extremity, as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for diabetic neuropathy affecting the left lower extremity, as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1988 to December 1989, and from November 1990 to March 1991. In June 2016, the Veteran testified at a hearing before a Decision Review Officer (DRO), a transcript is of record. In April 2021, the Veteran withdrew his request for a hearing before the Board. Beyond the above, it is valuable to note that the Veteran is already receiving a 100 percent disability. The Service Connection Claims Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for diabetes mellitus, type II The Veteran seeks service connection for diabetes mellitus, type II, as secondary to his service-connected psychiatric disorder, to include PTSD with major depressive disorder. Specifically, the Veteran contends that his service-connected psychiatric disability caused him to become depressed and noncompliant with medical treatment for his diabetes, which caused his disability to worsen. The Veteran does not assert that diabetes was manifested in service or within one year of discharge therefrom and the service treatment records fail to document any findings consistent with a diagnosis of diabetes. The evidence shows that the Veteran was diagnosed with diabetes mellitus, type II, after 1999. VA and private treatment records indicate the Veteran has been noncompliant with medication for his diabetes, which at multiple times throughout the appeal was noted to be uncontrolled. The Veteran's treating clinicians generally associated his noncompliance with medication management with his mental health symptoms. VA treatment notes in March 2013 recorded an assessment of poorly controlled diabetes which had worsened over the preceding months. The clinician suspected that the noncompliance with treatment for diabetes was related to worsening mental health symptoms. In November 2013, noted that the Veteran was admitted for depression and anxiety, as well as non-compliance with self-care. The clinician noted that the Veteran had a history of recurrent severe major depressive disorder with suicidal ideation and worsening of depressive symptoms resulting in poor compliance with medications and poor control of his diabetes. In 2014, it was noted that the Veteran was not taking insulin for his diabetes due to depression. In February 2015 a clinician reported that the Veteran was being followed for depression, for which he had had a history of hospitalizations. It was also noted that he had a history of very poorly-controlled diabetes, which the Veteran attributed to lack of motivation to check blood sugar consistently or takes insulin. In September 2015, a clinician noted that the Veteran's noncompliance with treatment for diabetes was tantamount to passive suicidal ideation. A December 2015 treatment note recorded a history of noncompliance with diabetes regimen when the Veteran became depressed. A VA clinical treatment note in February 2019, showed noncompliance with treatment for his multiple medical problems, including diabetes, which was severely uncontrolled. On VA examination in May 2019, the examiner noted a history of noncompliance with diabetic treatment from the initial diagnosis of diabetes mellitus in 1999 to the present. The examiner reported that the Veteran was initially diagnosed with depression and depression associated with diabetes. However, there were other mental health disorders present that escalated over the years to major depression with psychotic features and hallucinations. The examiner indicated that the Veteran's treatment providers in 2014 reported that his diabetes was out of control due to noncompliance because of his severe mental disorders. The examiner opined that the Veteran's diabetes was not at least as likely as not aggravated beyond its natural progression by his service-connected PTSD because PTSD was not mentioned by psychiatric caretakers in connection with his depression and psychosis as the major mental disorder and life altering process. A VA examiner in October 2019, opined that the Veteran's PTSD and major depressive disorder exacerbated each other in a reciprocal manner. Thus, due to the overlap, chronicity, and the reciprocal nature of the mental health diagnoses, it was not possible to differentiate which impairment was caused by which mental disorder. By a rating decision in October 2019, the RO updated the Veteran's service-connected psychiatric disability from PTSD to PTSD with major depressive disorder and increased the disability rating to 100 percent. A private mental health provider in October 2019, indicated that the Veteran's mental health symptoms interfered with making progress in management of his diabetes, as he would even struggle with remembering to eat. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance. Concerning the Veteran's diabetes mellitus, type II, the Board is of the opinion that this point has been attained, based on the volumes of medical treatment records and opinions from treating health care providers which etiologically link the Veteran's noncompliance with treatment for diabetes with his service-connected psychiatric symptoms, including depression. The Board acknowledges that the VA examiner in May 2019 provided a negative nexus opinion regarding whether the service-connected PTSD aggravated the Veteran's diabetes. However, the examiner limited the opinion to the effect of PTSD on the Veteran's diabetes, exclusive of other mental health disorders, including the now service-connected major depressive disorder. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). As noted, the evidence supports a finding that the Veteran's service-connected psychiatric disability, to specifically include depression, aggravated his diabetes mellitus. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). The evidence in this regard is uncontroverted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases As the balance of positive and negative evidence is in relative equipoise, the benefit of the doubt rule applies. See 38 C.F.R. §§ 3.310, 3.102; Gilbert, supra. Thus, secondary service connection is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.310. Entitlement to service connection for diabetic retinopathy as well as diabetic neuropathy affecting the right and left lower extremities The Veteran claims service connection for diabetic retinopathy and bilateral lower extremity diabetic neuropathy as secondary to diabetes mellitus, type II. The Veteran's treatment records show diagnoses of diabetes mellitus with diabetic retinopathy and bilateral lower extremity diabetic neuropathy. Although the Veteran was not provided with a VA examination to obtain a medical opinion as to whether his know service connected diabetes mellitus, type II, caused or aggravated these disability, the nonetheless finds that the VA treatment records, when taken together, show that the Veteran's diabetic retinopathy and bilateral lower extremity diabetic neuropathy are associated with, and the result of, his know service connected diabetes mellitus. See Owens, supra. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's diabetic retinopathy and bilateral lower extremity diabetic neuropathy were caused by his service-connected diabetes mellitus, type II. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. (Continued on the next page) Therefore, service connection for diabetic retinopathy and bilateral lower extremity diabetic neuropathy, as secondary to service-connected diabetes mellitus, type II, is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.310. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.