Citation Nr: 21031769 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-32 969 DATE: May 24, 2021 ORDER Service connection for diabetes mellitus, Type 2 is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's diabetes mellitus, Type 2, is proximately due to his service connected obstructive sleep apnea. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability of diabetes mellitus, Type 2 have been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. § 38 U.S.C. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to November 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for diabetes mellitus, Type II. Service connection- Diabetes mellitus, type 2 The Veteran contends that service connection is warranted for diabetes mellitus, Type II. At his February 2021 hearing he alleged that his diabetes is secondary to service connected sleep apnea and/or hypertension. He described being diagnosed with diabetes in 2007, more than a year after his November 2005 discharge from service but suggested that he had some symptoms of possible diabetes within his first post service year in 2006, including night sweats, vision problems, and urinary frequency. He testified that his doctor linked his diabetes to his service connected sleep apnea, which was diagnosed in 2005. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. Certain chronic diseases, to include arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection solely on the basis of continuity of symptomatology can only 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). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of 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. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54 ). Service treatment records are negative for any evidence of diabetes and the Veteran has not alleged that it directly began in service. The records do show diagnoses of hypertension and sleep apnea including as noted in reports of medical history in April 2005 and May 2005. A June 2005 VA general examination conducted when he was still on active duty diagnosed hypertension, sleep apnea, and obesity but did not include any diagnosis of diabetes. It also noted complaints of reduced vision following a softball injury to the right eye, with no diagnosis because the condition was deemed resolved. Also, in June 2005 a sleep study confirmed the diagnosis of a sleep disorder later diagnosed as sleep apnea as noted in October 2005. Private treatment records disclose that the Veteran was prescribed medications for newly diagnosed diabetes mellitus in July 2007, with complaints that medications were causing blurred vision. Other records dated in July 2007 indicated that he was newly diagnosed with diabetes and had just started treatment. Additional treatment for diabetes is shown in records in August 2007, October 2007, August 2008, and July 2012. He also was noted to have morbid obesity in these records and underwent a gastric bypass surgery to treat this in July 2008, with diabetes noted to be a co-morbid condition. Subsequent records continued to show follow-up treatment for diabetes, including throughout the pendency of this appeal. Records from 2014 through 2020 disclosed the Veteran to continue treatment for diabetes and monitoring for possible complications such as diabetic retinopathy. None of the records addressing diabetes treatment or monitoring included any findings or opinion as to any etiological relationship between the diabetes and his service connected disabilities. In May 2017 the Veteran underwent a VA examination which diagnosed diabetes mellitus, Type II. The date of onset was confirmed to be in 2007. He was noted to have stopped taking diabetes medication after his gastric bypass surgery and would need to stay compliant with his diet. Following review of the records and examination of the Veteran the examiner gave an opinion that the Veteran's diabetes mellitus is less likely than not due to his sleep apnea condition because there is no pathophysiology connecting both conditions. No opinion was given regarding aggravation. Nor was there an opinion regarding any possible causative relationship between diabetes and his service connected hypertension. Another VA examination was conducted in July 2017. This examination addressed the possible relationship between his diabetes and hypertension. The examiner gave an opinion that the claimed diagnosis of diabetes was less likely than not proximately due to or the result of the Veteran's service connected hypertension. In the rationale, the examiner stated that while diabetes and hypertension are related, there is no medical evidence that hypertension causes diabetes. The veteran's diagnosis of hypertension preceded his diagnosis of diabetes; if his diabetes preceded his hypertension, it is conceivable that injury to the kidney from diabetes could lead to hypertension. However, the Veteran was noted to have no evidence of renal disease on his most recent labs to suggest that this is the case. Again, no opinion on aggravation was given. In May 2021 the Veteran submitted an independent medical opinion from a medical expert with an expertise in transplant surgery. This physician, D.A., MD, JD, reviewed the Veteran's medical treatment records and medical treatise evidence. Following this review this physician opined that it is more likely than not that the Veteran's diabetes mellitus, Type II is caused by and/or aggravated by his service-connected obstructive sleep apnea (OSA). The records review included noting that the Veteran was diagnosed with sleep apnea in 2005 with symptoms of diabetes in 2007, with records from June 2020 noting his diabetes was treated with medication (metformin). A statement from his treating physician in June 2018 was noted to give a history of sleep apnea diagnosed in service and hypertension which is highly linked with sleep apnea. The physician explained that people with OSA have a high incidence of Type II diabetes and related metabolic disorders and that sleep disorder breathing has been associated with insulin resistance and glucose intolerance. There has long been a recognized association between Type 2 diabetes and OSA and there is emerging evidence that this relationship is likely to be at least independent of adiposity. The physician cited to medical treatises and medical studies to support this opinion. After reviewing the pertinent lay and medical evidence, the Board finds that the balance of the favorable and unfavorable nexus evidence is in equipoise. The evidence shows a current disability of Type II diabetes mellitus. Regarding causation on secondary basis, there have been inadequacies in the May 2017 and July 2017 VA examiner's rationale which included failure to adequately discuss aggravation. Thus, the VA opinions are diminished in probative value and weight. It is not found to be of higher probative weight than the weight of the May 2021 favorable independent medical opinion. This opinion contained adequate rationale explaining the opinion and citing to supportive treatise evidence. The private opinion is at least on equal probative footing as the unfavorable VA examination report. Consequently, the balance of the evidence is in favor of granting service connection for a disability of diabetes mellitus, Type II as secondary to service-connected sleep apnea. Moreover, as the letter supports secondary service connection on either a causation or aggravation basis the Board will resolve doubt and find that the diabetes mellitus here is proximately due to the service-connected apnea, obviating the need to identify a baseline level of disability. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.