Citation Nr: 21031086 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 05-23 047 DATE: May 20, 2021 ORDER Service connection for diabetes mellitus type 2 is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran's diabetes disability was incurred in service, diagnosed within the presumptive period after discharge, or was proximately due to or is being aggravated beyond the natural progression of the condition by his service-connected hypertension disability, to include treatment medications. CONCLUSION OF LAW The criteria to establish service connection for diabetes mellitus type 2 have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1972 to June 1980. The procedural histories of these claims have been thoroughly set forth in the March 2018, July 2019, August 2020, and January 2021 Board and Court of Appeals for Veterans Claims (Court) remands and decisions. Effective September 23, 2002, the Veteran is in receipt of a total disability evaluation based on individual unemployability (TDIU) and separate grants of special monthly compensation on various bases. In addition to the matters noted above, the Veteran has appealed the denial of service connection for prostate cancer. The electronic record indicates that the Agency of Original Jurisdiction (AOJ) is taking action on this issue. The issue has not been certified for appellate review and the Board will not undertake review of the matter at this time. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). This matter was remanded by a Joint Motion for Partial Remand in August 2020 for the Board to conduct additional development regarding the cause and potential aggravation of the Veteran's diabetes mellitus type 2 disability. The Board remanded the claim for an addendum opinion but finds that the preponderance of the evidence is against the claim. The appeal will therefore be denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Diabetes mellitus type 2 is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus type 2, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for diabetes mellitus type 2 VA treatment records indicate the Veteran was diagnosed with diabetes mellitus type 2 in March 2015, approximately 35 years after active service. Service treatment records do not indicate any complaints, diagnoses, or treatments for diabetes in service. His June 1972 report of medical history the Veteran denied blood, sugar, or albumin in his urine. His clinical endocrine evaluation was normal. On the May 1980 report of medical history at separation, the Veteran endorsed high blood pressure but denied blood, sugar, or albumin in his urine. His clinical endocrine evaluation was normal. At the June 2015 VA medical examination, the examiner noted the Veteran was diagnosed with both diabetes and hyperglycemia in March 2015. The examiner opined it was less likely than not that the Veteran's hypertension was causing or aggravating the Veteran's diabetes beyond its natural progression. In a July 2015 addendum, the same examiner explained that diabetes was not a consequence of hypertension and therefore could not be aggravated by it. At the November 2018 VA medical examination, the examiner noted the Veteran's 2015 diabetes and 2018 upper and lower extremity diabetic peripheral neuropathy diagnoses. The examiner reviewed the Veteran's medical records and noted the Veteran had been treated with the same hypertension medications for several years prior to his sudden glucose increase in 2015 that precipitated his diabetes diagnosis. The examiner therefore opined the Veteran's hypertension medications did not cause or aggravate his diabetes because his glucose readings were normal for several years while on these medications. The examiner also noted that once the Veteran's medications were adjusted after the glucose increase, to include removing the potentially offending medication HCTZ, the Veteran's glucose readings have continued to indicate a current diabetes diagnosis and that this indicated the Veteran's hypertension medications did not cause or were not aggravating his diabetes. The examiner explained that had the hypertension medication HCTZ caused or aggravated the Veteran's diabetes, its removal would either negate the continued diabetes diagnosis or the prior aggravation of the Veteran's diabetes. Finally, the examiner opined that the cause of the Veteran's diabetes was his body's resistance to insulin, which the examiner noted was typically the cause of diabetes in older populations. In a February 2021 addendum opinion, a different VA examiner reviewed the Veteran's claims folder and responded to the Board's request for opinions on direct causation, and secondary causation or aggravation, to include the effect of all of the Veteran's hypertension medications on the cause and/or aggravation of his diabetes disability and not just the medications the Veteran was taking in 2015 at the time of his initial diabetes diagnosis. The examiner opined the Veteran's diabetes mellitus type 2 was less likely incurred in service or secondary to his service-connected hypertension disability. With regards to direct service connection, the examiner noted the Veteran demonstrated a normal exit examination at separation, with no in-service test results indicative of diabetes. The examiner also noted the initial onset of diabetes happened at least 25 years after service. With regards to secondary service connection, the examiner opined the Veteran's diabetes was less likely proximately due to or being aggravated by his hypertension medications because the Veteran's hypertension medication HCTZ and lisinopril were used for several years prior to his initial diabetes diagnosis and thus did not suggest a causal relationship between the hypertension medications and his diabetes. The examiner also noted that once HCTZ was stopped after the onset of diabetes any aggravation caused by the medication would have been temporary and thus was no longer a current aggravating factor. The examiner then noted that all other hypertension medications since the onset of diabetes were either prescribed after the onset of diabetes or are not known as causal or aggravating factors according to medical literature, and pointed to the fact that once the Veteran's insulin levels were diagnosed and treated they have remained "fairly controlled" while on the Veteran's current hypertension medications. The preponderance of the evidence is against finding service connection for diabetes mellitus type 2. There is no probative medical evidence that indicates the Veteran's diabetes disability was incurred in service, diagnosed within the presumptive period after discharge, or was proximately due to or is being aggravated beyond the natural progression of the condition by his service-connected hypertension disability, to include treatment medications. The Veteran has continuously asserted throughout the appeal that his current diabetes disability is a result of his hypertension medications. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current diabetes disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Diabetes mellitus type 2 requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service or his service-connected hypertension disability. Since the Veteran's diabetes disability was not incurred in service, diagnosed within the presumptive period after discharge, or secondary to his service-connected hypertension disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.