Citation Nr: 21040702 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-62 524A DATE: July 6, 2021 ORDER Service connection for diabetes, to include as secondary to a service-connected disease or injury, is denied. Service connection for diabetic retinopathy, to include as secondary to a service-connected disease or injury, is denied. Service connection for diabetic peripheral neuropathy in the extremities, to include as secondary to diabetes and to a service-connected disease or injury, is denied. Service connection for arthritis, to include as secondary to a service-connected disease or injury, is denied. Service connection for dyspnea, to include as secondary to a service-connected disease or injury, is denied. Service connection for a heart disorder, to include as secondary to a service-connected disease or injury, is denied. Service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to a service-connected disease or injury, is denied. Service connection for sleep apnea, to include as secondary to a service-connected disease or injury, is denied. Service connection for gastroesophageal reflux disease (GERD), to include as secondary to a service-connected disease or injury, is denied. Service connection for a back disorder, to include as secondary to a service-connected disease or injury, is denied. FINDING OF FACT The Veteran's diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder were not shown in service or for many years thereafter and are not otherwise etiologically related to active duty service, are not proximately due to or the result of a service-connected disease or injury, and have not been aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for diabetic retinopathy, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for diabetic peripheral neuropathy of the bilateral upper extremities, to include as secondary to diabetes and to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for diabetic peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes and to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The criteria for service connection for arthritis, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 6. The criteria for service connection for dyspnea, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 7. The criteria for service connection for a heart disorder, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 8. The criteria for service connection for COPD, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 9. The criteria for service connection for sleep apnea, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 10. The criteria for service connection for GERD, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 11. The criteria for service connection for a back disorder, to include as secondary to a service-connected disease or injury, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from June 1964 to December 1964 and in the Texas Army National Guard from July 1965 to May 1968. The Board notes that in addition to the claims of service connection discussed herein, the Board also remanded the Veteran's claims seeking an increased disability rating for his service-connected acquired psychiatric disability and a total disability rating based on individual unemployability (TDIU). In March 2021, a rating decision was issued addressing his claim seeking an increased disability rating for his service-connected acquired psychiatric disability, increased the assigned rating to 50 percent effective April 2016 and 100 percent effective March 2021. As a 50 percent rating was what the Veteran requested in his notice of disagreement, the RO considered this to be a full grant of the benefits sought. The Board agrees and this issue is no longer on appeal. As for the Veteran's claim for TDIU, a statement of the case has not been issued per the Board's remand instructions, but the March 2021 rating decision makes clear that this issue will be addressed separately. Service Connection 1. Entitlement to service connection for diabetes, to include as secondary to a service-connected disease or injury 2. Entitlement to service connection for diabetic retinopathy, to include as secondary to a service-connected disease or injury 3. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral upper extremities, to include as secondary to diabetes and to a service-connected disease or injury 4. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes and to a service-connected disease or injury 5. Entitlement to service connection for arthritis, to include as secondary to a service-connected disease or injury 6. Entitlement to service connection for dyspnea, to include as secondary to a service-connected disease or injury 7. Entitlement to service connection for a heart disorder, to include as secondary to a service-connected disease or injury 8. Entitlement to service connection for COPD, to include as secondary to a service-connected disease or injury 9. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disease or injury 10. Entitlement to service connection for GERD, to include as secondary to a service-connected disease or injury 11. Entitlement to service connection for a back disorder, to include as secondary to a service-connected disease or injury The Veteran contends that service connection is warranted for diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, a heart disorder, COPD, sleep apnea, GERD, and a back disorder. He contends that his claim seeking service connection for diabetes should be granted because research associates diabetes with posttraumatic-stress disorder (PTSD) and stress, and that his claims for diabetic retinopathy, and diabetic peripheral neuropathy of the bilateral upper and lower extremities should, therefore, also be granted. With respect to his claims seeking service connection for arthritis, dyspnea, a heart disorder, COPD, sleep apnea, and GERD, he similarly contends that epidemiological studies have linked PTSD to his conditions. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Moreover, service connection is warranted for a disability that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Based upon the evidence of record, the Board determines that service connection for diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, a heart disorder, COPD, sleep apnea, GERD, and a back disorder is not warranted because the preponderance of the evidence weighs against finding that they began during service or are otherwise etiologically related to service, were caused by or a proximately due to a service-connected disease or injury, or that they were aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309, 3.310. Initially, the Board finds that the Veteran's service treatment records fail to establish that his diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder began during or are otherwise etiologically related to his active duty service. In this case, his service treatment records do not reflect that he received treatment for, reported signs or symptoms of, or was diagnosed with diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, a heart disorder, COPD, sleep apnea, GERD, and a back disorder. The Board acknowledges that November 1964 treatment records reflect that he experienced symptoms consistent with bronchitis, but this does not establish that he experienced symptoms of any of the claimed disorders, including COPD, during his active duty service. Moreover, the report from his December 1964 separation examination reflects that the examining physician determined that eyes, lungs and chest, heart, upper extremities, lower extremities, and spine were "normal," and did not identify any issues related to diabetes, dyspnea, sleep apnea, or GERD. Thus, the Veteran's service treatment records do not establish that these disorders began during or are otherwise etiologically related to his active duty service. The post-service clinical evidence also fails to establish a relationship between the Veteran's diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder and his active duty service. As an initial matter, report from the July 1965 examination performed in connection with his service in the Texas Army National Guard reflects that the examining physician determined that his eyes, lungs and chest, heart, upper extremities, lower extremities, and spine were "normal," and did not identify any issues related to diabetes, dyspnea, sleep apnea, or GERD. The July 1965 report of medical history that he completed in connection with his service in the Texas Army National Guard similarly reflects that he denied eye trouble, shortness of breath, pain or pressure in his chest, palpitation or pounding heart, recurrent back pain, and frequent trouble sleeping, and did not express any concerns related to diabetes or dyspnea. The Board acknowledges that the Veteran reported that he experienced frequent indigestion in the July 1965 report of medical history. However, given that the significant gap in treatment for GERD, and that the physician who examined him at his separation from service and in connection with his service in the Texas Army National Guard, his report of frequent indigestion alone is not sufficient to establish that he has experienced continuous symptoms related to GERD since service. Additionally, the post-service clinical evidence shows significant gaps between the Veteran's separation from service and when he first sought treatment for, reported signs or symptoms of, or was diagnosed with diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder. Specifically, the post-service clinical evidence fails to show that he sought treatment for, reported signs or symptoms of, or was diagnosed with diabetes, dyspnea, COPD, sleep apnea, GERD, and symptoms of a heart disorder until approximately August 2007, more than 42 years after his separation from service. The post-service clinical evidence fails to show that he reported signs or symptoms of a back disorder until approximately November 2009, more than 44 years after his separation from service. With respect to diabetic peripheral neuropathy of the bilateral upper and lower extremities, the post-service clinical evidence fails to show that he sought treatment for and reported signs or symptoms of neuropathy until approximately August 2013, more than 48 years after his separation from service. With respect to diabetic retinopathy, the post-service clinical evidence fails to show treatment for diabetic retinopathy until approximately March 2015, more than 50 years after his separation from service. With respect to arthritis, the post-service-clinical evidence fails to show treatment for or that he reported signs or symptoms of arthritis until approximately September 2016, more than 51 years after his separation from service. Given the significant gaps between his separation from service and when he first sought treatment for diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, a heart disorder, COPD, sleep apnea, GERD, and a back disorder, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). Indeed, given the Veteran's arguments that the claimed disorders have been caused by or are proximately due to his diabetes or his service-connected acquired psychiatric disability, he is not truly asserting symptoms of the claimed disorders since service. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran's diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder to active duty service, to include a service-connected disease or injury. The Board initially notes that there is no objective medical evidence linking the Veteran's diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder to an event during his active duty service. Next, the Board places great probative weight on the VA examinations considering the etiological relationship between his disorders and his service-connected acquired psychiatric disability and his active duty service. With respect to diabetes and diabetic peripheral neuropathy of the bilateral upper and lower extremities, the report from the April 2021 VA examination reflects that the examiner opined that his diabetes and diabetic peripheral neuropathy of the bilateral upper and lower extremities were less likely than not proximately due to or the result of his service-connected acquired psychiatric disability. In support of that opinion, the examiner explained that diabetes is a metabolic disorder characterized by blood sugar derangements and associated end organ damage, caused by systemic inflammation, pancreatic endocrine dysfunction, and peripheral insulin resistance, and that there is no physiological basis for the Veteran's acquired psychiatric disability causing diabetes. The April 2021 VA examiner also opined that the Veteran's diabetes and diabetic peripheral neuropathy of the bilateral upper and lower extremities were less likely than not aggravated beyond their natural progression by his service-connected acquired psychiatric disability. In support of that opinion, the examiner explained that although the Veteran stated that his acquired psychiatric disability began when he was in basic training, he developed diabetes two decades later in the mid-1980s, and that the evidence showed variable blood sugar control and the eventual development of diabetic peripheral neuropathy, but nothing unusual for the expected progression of diabetes. The examiner also stated that there was no physiological basis for the Veteran's acquired psychiatric disability to affect the natural progression of diabetes. Additionally, with respect to diabetic retinopathy, the report from the April 2021 VA examination reflects that the examiner, determined that the Veteran did not have diabetic retinopathy as a complication of diabetes. Next, the March 2021 VA examiner provided opinions concerning the Veteran's right lower extremity diabetic peripheral neuropathy, dyspnea, COPD, sleep apnea, back disability, arthritis, left upper extremity diabetic peripheral neuropathy, GERD, and heart disorder. With respect to right lower extremity diabetic peripheral neuropathy, the examiner opined that the Veteran's right lower extremity diabetic peripheral neuropathy was less likely than not incurred in or caused by his active duty service because the records reviewed did not provide sufficient evidence, or continuity of care, that the Veteran's service led to his current condition. With respect to dyspnea, the examiner opined that the Veteran's dyspnea was less likely than not incurred in or caused by his active duty service because the records reviewed did not provide sufficient evidence, or continuity of care, that the Veteran's service led to his current condition. With respect to COPD, the examiner opined that the Veteran's COPD was less likely than not incurred in or caused by his active duty service, explaining that his COPD was not established or related to any treatment for a sore throat and cough during his active duty service in November 1964. With respect to sleep apnea, the examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by his active duty service because was less likely than not incurred in or caused by his active duty service because the records reviewed did not provide sufficient evidence, or continuity of care, that the Veteran's service led to his current condition. With respect to a back disorder, the examiner opined that the Veteran's back disorder was less likely than not incurred in or caused by his active duty service because the records reviewed did not provide sufficient evidence, or continuity of care, that the Veteran's service led to his current condition. With respect to arthritis, the examiner opined that the Veteran's arthritis was less likely than not incurred in or caused by his active duty service because the records reviewed did not provide sufficient evidence, or continuity of care, that the Veteran's service led to his current condition. With respect to left upper extremity diabetic peripheral neuropathy, the examiner opined that the Veteran's left upper extremity diabetic peripheral neuropathy was less likely than not incurred in or caused by his active duty service because it was not substantiated on exam and was never established during service. With respect to GERD, the examiner opined that the Veteran's GERD was less likely than not incurred in or caused by his active duty service because it could not be linked to the post-service report of medical history where he reported frequent indigestion, and because there were no service treatment records that supported continuity or exacerbation of GERD symptoms. With respect to a heart disorder, the examiner opined that the Veteran's heart disorder was less likely than not incurred in or caused by his active duty service because the records reviewed did not provide sufficient evidence, or continuity of care, that the Veteran's service led to his current condition. The examiner also noted that the Veteran's claimed heart disorder was neither established on examination, per diagnostic studies, nor established during active duty service. Finally, with respect to the Veteran's right lower extremity diabetic peripheral neuropathy, dyspnea, COPD, sleep apnea, back disability, arthritis, left upper extremity diabetic peripheral neuropathy, GERD, and heart disorder, the report from the March 2021 VA examination reflects that the examiner determined that there were no medical records that supported any evidence of those conditions beyond their natural progressions. Given the expertise of the March 2021 and April 2021 VA examiners, their reviews of the claims file, their in-person examinations, and their well-supported rationales, the Board finds that their opinions are entitled to substantial probative weight. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his right lower extremity diabetic peripheral neuropathy, dyspnea, COPD, sleep apnea, back disability, arthritis, left upper extremity diabetic peripheral neuropathy, GERD, and heart disorder. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his disorders to his service-connected acquired psychiatric disability and to his active duty service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent testimony regarding symptoms, these disorders are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that his diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, heart disorder, COPD, sleep apnea, GERD, and back disorder are related to his service-connected acquired psychiatric disability and/or his active duty service he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims seeking service connection for diabetes, diabetic retinopathy, diabetic peripheral neuropathy of the bilateral upper extremities, diabetic peripheral neuropathy of the bilateral lower extremities, arthritis, dyspnea, a heart disorder, COPD, sleep apnea, GERD, and a back disorder. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel