Citation Nr: 21040855 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-14 751 DATE: July 7, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, with proteinuria (DM type II) is denied. Entitlement to service connection for coronary artery disease, to include as secondary to DM type II is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to DM type II is denied. Entitlement to service connection for peripheral neuropathy right lower extremity, to include as secondary to DM type II is denied. Entitlement to service connection for peripheral neuropathy left lower extremity, to include as secondary to DM type II is denied. Entitlement to service connection for peripheral neuropathy right upper extremity as secondary to DM type II is denied. Entitlement to service connection for peripheral neuropathy left upper extremity as secondary to DM type II is denied. FINDINGS OF FACT 1. The Veteran is shown to have had DM type II prior to service, which was not aggravated by service. 2. The Veteran's coronary artery disease did not have its onset during active duty, did not manifest to a compensable degree within one year of discharge from service and is not otherwise related to service. 3. The Veteran's erectile dysfunction did not have its onset during active duty, did not manifest to a compensable degree within one year of discharge from service and is not otherwise related to service. 4. The Veteran's peripheral neuropathy, right lower extremity did not have its onset during active duty, did not manifest to a compensable degree within one year of discharge from service and is not otherwise related to service. 5. The Veteran's peripheral neuropathy, left lower extremity did not have its onset during active duty, did not manifest to a compensable degree within one year of discharge from service and is not otherwise related to service. 6. The Veteran's peripheral neuropathy, right upper extremity did not have its onset during active duty, did not manifest to a compensable degree within one year of discharge from service and is not otherwise related to service. 7. The Veteran's peripheral neuropathy, left upper extremity did not have its onset during active duty, did not manifest to a compensable degree within one year of discharge from service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for DM type II are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. 2. The criteria for entitlement to service connection for coronary artery disease, to include as secondary to DM, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to DM, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to DM, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to DM, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 6. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to DM, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 7. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to DM, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1977 to November 1980, from January 1997 to October 1997, and from December 2003 to June 2004 with additional periods of active duty training. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the San Juan, Commonwealth of Puerto Rico Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board notes that the Veteran's representative included the issue of entitlement to an increased rating in excess of 50 percent for anxiety disorder in the Informal Hearing Presentation. This issue was decided by the Board in its May 2015 rating decision and it not on appeal. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in August 2004 and in April 2011. The RO associated the Veteran's service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, conditions listed as chronic diseases under 38 C.F.R. § 3.309 (a), such as DM type II, are entitled to service connection if the evidence establishes continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089, 1096 . Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). Diabetes Mellitus The Veteran is seeking service connection for DM type II. The Veteran's service treatment records (STRs) include a record dated March 2004 indicating the Veteran was to return to the clinic daily for glucose check. The Veteran's service personnel records show he was released from active duty effective July 9, 2004 as he was found to be unfit by reasons of physical disability by a Physical Evaluation Board. Medical Evaluation Board proceedings dated January 2004 note the Veteran's DM existed prior to service. The report of the proceedings noted the Veteran had adult onset DM diagnosed for less than five years, currently controlled on oral medications and that on oral medications and with exercise, his prognosis was good. Physical Evaluation Board proceedings note the Veteran was diagnosed with DM in July 2001 and that there was compelling evidence to support a finding that the Veteran's DM which existed prior to service was not permanently aggravated by service. Medical records dated May 2004 reflected a diabetic consult. The Veteran had a list of blood sugars ranging from 130s to 400s; he denied open areas on skin, stated he felt well, and reported his energy was high. He stated that he had trouble eating the right things due to institution food. He reported no current symptoms of his diabetes mellitus type II. The clinician's assessment was improved control of DM on current regimen was noted, but he was clearly not at goal; concerned about the dietary choices at the base; insulin resistance may not be the biggest factor in his DM, but likely with sig secretory problem. The Veteran underwent a VA diabetes mellitus examination in September 2004. The VA examiner noted that the Veteran's file was not available for review. The Veteran reported he was diagnosed with DM type II in 2001, by a private physician. He was retired from military service due to DM type II. The Veteran denied a history of ketoacidosis or hypoglycemic reactions. He also denied hospitalizations for ketoacidosis or hypoglycemic reactions. He stated that he did not follow his diabetic diet strictly. He had no restriction of activities due to DM type II. Treatment consisted of an oral hypoglycemic and insulin. VA treatment records from October 2004 noted the Veteran's DM type II was uncontrolled. He admitted he was not compliant with his diet. The Veteran refused to be evaluated by a nutritionist. A treatment note dated March 2005 indicated the Veteran had uncontrolled DM due to diet noncompliance. He was reoriented about diet, medication, and complications. A September 2005 treatment note indicated the Veteran's DM type II was fairly controlled. VA treatment records dated May 2020 reflect the Veteran continues to take oral hypoglycemics and insulin for his DM type II. The Veteran underwent a VA diabetes mellitus examination in August 2017. The VA examiner noted the Veteran continued to take oral hypoglycemics and insulin for DM type II. The Veteran did not require regulation of activities as part of medical management of his DM type II. He sees his diabetic care provider less than twice a month. He had no hospitalizations for ketoacidosis or hypoglycemic reactions. Complications of DM were identified as diabetic peripheral neuropathy. The VA examiner determined that the Veteran's DM type II existed prior to service and that there was evidence of aggravation while on active military service in 2004. In April 2020, an addendum opinion was obtained to clarify the August 2017 opinion. The VA examiner noted there the STRs reflect evidence of multiple episodes of uncontrolled blood sugar readings and treatment in March and April 2004 where the Veteran admitted he was not compliant with his diabetic therapy. He does not always take his medication. The VA examiner stated that the claimed condition, which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury, or illness. The VA examiner determined that it was less likely than not that the Veteran's uncontrolled DM type II is aggravated beyond its normal course by his 2003-2004 service, as the cause of uncontrolled DM type II was noncompliance with his medical treatment regimen and not from service, or beyond the normal course of the disease. A pre-existing condition is presumed aggravated by service when there is an increase in disability during service, unless clear and unmistakable evidence shows that the worsening is due to natural progression. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306. The August 2017/April 2020 VA examiner found no increase in disability during service. The Board agrees. While the Veteran experienced episodes of elevated glucose readings, such were able to be effectively treated with diet and compliance with medication. He was released from active duty because he had adult onset DM which did not meet retention standards. VA treatment records post separation continue to show the Veteran's DM was treated with medication and diet. There were no episodes of hospitalization due to ketoacidosis or hypoglycemic reactions. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996). As increase in service is not shown, aggravation is not presumed. The Board finds the VA examiner's opinion to be adequate and reliable and affords it great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The VA examiner's opinion was based on a thorough review of the record and contains sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the Veteran's relevant medical history and contentions when formulating the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, aggravation of DM, falls outside the realm of common knowledge of a law person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran believes that his DM was aggravated by service, as a lay person, he is not shown to possess any specialized training in the medical field. His opinion as to the aggravation of DM is not competent evidence, as the nexus question involved in this case requires medical expertise. Id. Additionally, the Board notes that no medical professional has supported the Veteran's position. Based on the above, the preponderance of evidence is against service connection for DM type II and the claim must be denied. The evidence demonstrates that the Veteran's pre-existing DM type II was not permanently aggravated by the Veteran's period of active duty service. There is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Coronary Artery Disease, Erectile Dysfunction, and Peripheral Neuropathy of the Lower and Upper Extremities The Veteran asserts that his coronary artery disease, erectile dysfunction, and peripheral neuropathies of the lower and upper extremities are secondary to his diabetes mellitus. As the Veteran is not service connected for diabetes mellitus, service connection for coronary artery disease, erectile dysfunction and peripheral neuropathies of the lower and upper extremities cannot be granted on a secondary basis. The Veteran's STRs are negative for diagnoses and/or treatment of coronary artery disease, erectile dysfunction, and peripheral neuropathies of the lower and upper extremities. The Board notes that peripheral neuropathy, as an organic disease of the nervous system, is subject to a presumption of service connection if manifested to a compensable degree within one year of separation from service. The medical evidence of record first reflects diabetic neuropathy was diagnosed in 2018. As this diagnosis was made 14 years after the Veteran's discharge from service, the presumption of service connection is not warranted for peripheral neuropathy. 38 C.F.R. § 3.307, 3.309. The Appellant has not made any other contentions in regard to these claims and has not pointed to an in-service event or injury to support his claims for service connection. Thus, the criteria for the claims of entitlement to service connection for coronary artery disease, erectile dysfunction and peripheral neuropathies of the lower and upper extremities have not been met. 38 C.F.R. § 3.303, 3.310. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.