Citation Nr: 21029537 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-29 192 DATE: May 13, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for a bilateral hand disorder, to include as secondary to a service-connected disability, is denied. REMANDED Entitlement to service connection for a bilateral eye disorder, to include as secondary to a service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran's diabetes mellitus, type II, was not incurred in and is not etiologically related to any incident of active duty service, was not diagnosed within one year of service discharge, and was not caused or aggravated by a service-connected disability. 2. The Veteran's bilateral hand disorder was not incurred in or caused by any incident of active duty service, and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a bilateral hand disorder have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1976 to April 1977. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2017. A transcript of that hearing has been associated with the claims file. The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to a service-connected disability The record establishes a current diagnosis of diabetes mellitus, type II. The first medical evidence in the claims file showing a diagnosis of diabetes mellitus, type II, is shown in January 2005. Thus, a current disability is demonstrated. However, the record does not establish in-service incurrence of diabetes mellitus, type II, as the Veteran's service treatment records are negative for any indication of elevated blood glucose. Moreover, the Veteran has not provided any lay statements suggesting that he experienced elevated blood glucose during service or continuously since service. In fact, he has not provided any statements whatsoever linking this disability directly to active duty service. Additionally, there is no competent and credible evidence linking the Veteran's current diabetes mellitus to any incident of service. Therefore, in-service incurrence of diabetes mellitus is not established, and service connection on a direct basis is not warranted. Service connection is possible for diabetes mellitus as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 if such disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Also, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the medical evidence of record does not demonstrate a diagnosis of diabetes mellitus within one year of service discharge. The first medical evidence of diabetes mellitus is shown 27 years after service discharge. Further, as noted above, the Veteran has not provided any lay statements indicating that he experienced symptoms of diabetes during and continuously since service discharge. Therefore, service connection on a presumptive basis or based upon continuity of symptomatology is not warranted for diabetes mellitus. Last, service connection on a secondary basis is not warranted. The Board acknowledges the Veteran's argument that his service-connected bilateral foot disorder has impaired his mobility and functioning which led to physical deconditioning, and ultimately, diabetes. However, the probative medical evidence of record does not support the Veteran's contention. In an August 2019 VA opinion, the examiner found that the Veteran's diabetes was not proximately due to the side effects of medications or other treatment prescribed for the Veteran's bilateral foot disability. In an October 2020 VA opinion, the examiner opined that the Veteran's diabetes was not caused or aggravated by his service-connected bilateral foot disability. The examiner explained that there is no physiologic or anatomic mechanism by which foot conditions can cause diabetes directly. The examiner also noted that the medical evidence of record did not support the conclusion that the physical limitations caused by the service-connected bilateral foot disorder impacted the Veteran's diabetes, as there was only a marginal increase in the Veteran's body mass index between 2001, four years before the diagnosis of diabetes, and 2009, four years after the diagnosis. The examiner observed that, because the Veteran was "clearly overweight well before the diagnosis of diabetes, weight gain alone is less likely than not the cause of the [V]eteran's diabetes." Additionally, the examiner noted that, although the Veteran's foot problems impacted his mobility, the service-connected bilateral foot disorder did not prohibit healthful eating or all exercise, as the Veteran was still able to engage in swimming, stationary cycling, rowing, and upper body exercises. The Board finds the opinions provided by the August 2019 and October 2020 VA examiners to be probative, as they are based upon review of the evidence in the claims file and the Veteran's lay statements, and because they provide adequate rationale to support their conclusions. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. 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) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... 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). 2. Entitlement to service connection for a bilateral hand disorder, to include as secondary to a service-connected disability After thorough consideration of the evidence of record, the Board concludes that service connection for a bilateral hand disorder is not warranted. There is a current diagnosis of diabetic neuropathy of the bilateral upper extremities, as noted in an August 2019 VA examination report. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, the record does not establish in-service incurrence of a bilateral hand disorder. Service treatment records are negative for any indication of complaints of or treatment for problems with the hands. A March 1977 separation examination reflects that the upper extremities were normal. The Veteran has not provided any lay statements suggesting that he experienced hand symptoms during service or continuously since service. In fact, he has not provided any statements whatsoever linking his current bilateral hand disorder to active duty service. Additionally, there is no competent and credible evidence linking the Veteran's current bilateral hand disorder to any incident of service. Therefore, in-service incurrence of a bilateral hand disorder is not established. Accordingly, service connection for a bilateral hand disorder is not warranted on a direct basis. 38 U.S.C. § 5107 (b). Service connection may also be granted on a secondary basis, but the preponderance of the evidence is against finding that the Veteran's bilateral hand disorder is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen, 7 Vet. App. 439; 38 C.F.R. § 3.310(a). The Board acknowledges that an August 2019 VA examiner concluded that the Veteran's bilateral hand disorder was at least as likely as not proximately due to or the result of the Veteran's diabetes mellitus, type II. However, service connection for diabetes mellitus, type II, has been denied. 38 C.F.R. § 3.310; see Allen, 7 Vet. App. 439 (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Thus, service connection for a bilateral hand disorder may not be granted on a secondary basis. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as discussed above, the preponderance of the evidence is against the Veteran's claim, and the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a bilateral eye disorder, to include as secondary to a service-connected disability is remanded. Although a VA opinion addressing the etiology of the Veteran's bilateral eye disorder was obtained in July 2019, the opinion provided discussed the etiology of only bilateral cataracts and bilateral dry eye syndrome. Review of the record reflects numerous other diagnoses pertinent to the eyes, including nuclear sclerosis, astigmatism, hyperopia, and peripheral retinal pigment degeneration. Because the July 2019 VA opinion did not address the etiology of these eye disorders, a new VA opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). The matters are REMANDED for the following action: Provide the Veteran with a VA examination by an appropriate physician to determine the existence and etiology of his bilateral eye disorder. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. The examiner must state all diagnosed bilateral eye disorders found now or at any time during the appeal period. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that any bilateral eye disorder currently diagnosed or diagnosed during the pendency of the Veteran's claim, including cataracts, dry eye syndrome, nuclear sclerosis, astigmatism, hyperopia, and/or peripheral retinal pigment degeneration, was caused or incurred as a result of the Veteran's active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran's lay statements regarding in-service and post-service symptomatology. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.