Citation Nr: 21041901 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-25 491 DATE: July 10, 2021 ORDER Entitlement to service connection for major depressive disorder is granted. Entitlement to service connection for diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's major depressive disorder is shown by the evidence to have been caused, at least in part, by his experiences in military service. 2. The Veteran's type II diabetes is not shown to have had its onset in service or within the first year following service separation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from June 1979 to October 1999. These matters were previously before the Board in October 2018, when it was remanded for further development, to include VA examinations. At that time, the Board instructed that if service connection was granted for mental health disorders or disabilities of the neck and back, a VA examination should be performed to determine the nature and etiology of his claimed obstructive sleep apnea. No VA examination or opinion were obtained with respect to obstructive sleep apnea and that claim must be remanded for further development. Stegall v. West, 11 Vet. App. 268 (1998). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Diabetes mellitus, type II, is one such chronic disease for which presumptive service connection is possible. Entitlement to service connection for major depressive disorder The Veteran seeks service connection for an acquired psychiatric disability, originally claimed as posttraumatic stress disorder (PTSD), which he asserts is related to his experiences in service. These include the deaths by suicide of two young servicemen with whom he worked closely. In accordance with Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009), the Board is required to construe the claim to encompass disabilities which are manifested by similar symptoms. Notably, while a diagnosis of PTSD would require confirmation of the stressor incidents identified by the Veteran, another mental health diagnosis would not require confirmation if the stressors are consistent with the nature and circumstances of the Veteran's duties while in service. The Veteran's stressor statement submitted in March 2016 detail incidents which are consistent with his service as reflected in his service records. The August 2019 VA examination diagnosed the Veteran with Major Depressive Disorder and detailed symptoms of depressed mood, chronic sleep impairment, mild memory loss, difficulty in adapting to stressful circumstances, and suicidal ideation. It was the examiner's opinion that the Veteran's Major Depressive Disorder was at least as likely as not as due, at least in part, to his experiences in service. The examiner also noted that there was no evidence of symptoms sufficient to support diagnoses of autism, schizophrenia, PTSD, or any other mental health disorder other than Major Depressive Disorder. Inasmuch as the elements of service connection a current diagnosis, an event in service, and a link between the diagnosis and the event have been satisfied, the claim of service connection for Major Depressive Disorder is granted. 38 C.F.R. § 3.303. The Board notes that the Veteran had been diagnosed multiple mental health disorders in March 2013, including schizophrenic disorder, manic disorder, major depressive disorder, autistic disorder, generalized anxiety disorder, social phobia, other specific phobia, obsessive compulsive disorder, sleep disorder, posttraumatic stress disorder, and anxiety state. The evaluation yielding these diagnoses listed the Veteran's symptoms as poor appetite, sleep impairment, occasional mild panic attacks, mood swings and irritability, and variable concentration. These diagnoses have been reviewed by VA examiners in July 2017 and August 2019. The July 2017 VA examiner found that the Veteran's reported symptoms of chronic sleep impairment, mild memory loss, and circumstantial speech did not satisfy the requirements for a diagnosis of any mental health disorder. The August 2019 VA examiner, as noted above, found that only the criteria for major depressive disorder were met and that no other mental health diagnosis was found. The Board finds these opinions to be of greater probative value since they are supported by clear rationale and explanations. Moreover, where this decision grants service connection for an acquired mental health disorder, any aggravation or worsening of mental health symptoms would be considered as part of the rating for his now service-connected disability. As such, there is no basis or necessity for granting service-connection for any other mental health disabilities aside from major depressive disorder. Entitlement to service connection for diabetes mellitus, type II. The Veteran has a diagnosis of type II diabetes, for which he seeks service connection. He asserts that the symptoms of diabetes were first manifested in service. Specifically, he has reported experiencing and seeking medical treatment for excessive thirst, frequent urination, and blurry vision while on active duty, all of which were at issue when his diabetes was diagnosed after service separation. The record shows that he was formally diagnosed with type II diabetes and began treatment for the condition in March 2006, about 7 years after leaving service. The Veteran notes that he was diagnosed with peripheral neuropathy shortly after the diagnosis of diabetes and that normally such a diagnosis is due to long periods of elevated blood glucose. (See Correspondence, 07/15/2015.) The Board acknowledges and accepts as credible and competent the Veteran's statements regarding his symptoms in service. The Board also notes and acknowledges that the Veteran disclosed on multiple occasions that close relatives, including his mother, were diabetic and that the service record therefore reflects an increased possibility that he would develop type II diabetes. However, the question before the Board is whether the record supports a finding that type II diabetes was manifested in or otherwise had its onset in service. At one point it was determined that the Veteran's service treatment records were unable to be located. Since that time, VA has received at least some of those records, although it is not clear whether there are additional medical records that are not currently in the claims file. Nevertheless, a good portion of the Veteran's service treatment records are available and have been reviewed. These show that a fasting blood sugar test performed in May 1980 when the Veteran reported feeling weak showed a blood glucose of 80. (See Medical Treatment Records, 03/02/2011.) In February 1993, his blood glucose was measured as 108, which was indicated to be within normal limits of 70 to 110. (See Medical Treatment Records, 03/02/2011.) In July 1994, his blood glucose was reported to be 118. (See STR, 03/17/2011.) In June 1999, his blood glucose was measured at 108. (See STR, 03/17/2011.) The Veteran provided a written statement in July 2013 as part of his Notice of Disagreement which asserted that he had a high blood glucose reading while in service. Specifically, he reported that prior to his last deployment in 1998 he had a blood glucose of 305. The provider asked about a family history of diabetes and the Veteran informed him that his mother had died from complications of diabetes. The provider advised him that given his lifestyle as an athlete at that time and other aspects of his health on examination, it was possible the high reading was due to his high sugar and starch diet the previous day. A VA examination in August 2019 yielded the opinion that the Veteran's type II diabetes did not have its onset in service or within the first year following service separation. The examiner specifically considered the symptoms that the Veteran reported experiencing in service, namely, frequent urination, excessive thirst, and blurry vision and acknowledged that these can be symptoms of diabetes. However, the examiner noted that these are also symptoms related to other conditions shown in the service treatment records, such as urinary tract infection, and are not definitive evidence of diabetes. Diagnosis of diabetes requires specific laboratory findings related to blood glucose and urinalysis testing. These findings were not shown in the records prior to the Veteran's service separation and the blood glucose as late as June 1999 was within normal range. Based on the evidence of blood glucose readings shown in service and the diagnosis some 7 year after service, the VA examiner concluded that diabetes was not present during service despite the reported symptoms. Based on the evidence of record, with specific attention to the documents cited, the Board concludes that there is no basis for a grant of service connection for diabetes mellitus, type II. While the Veteran did have risk factors for developing the condition and non-specific symptoms which can be indicative of a possible diagnosis, the presence of diabetes was not shown in the objective laboratory findings. The service treatment records show a high glucose reading of 118, just above normal range, in 1994, but a subsequent normal reading of 108 in June 1999. As such, the slightly elevated blood glucose shown on one test is deemed to be an anomaly. The Board notes that the Veteran's reported elevated reading prior to his last deployment was felt by his physician to be related to his recent diet rather than diagnostic for diabetes. Again, while the Veteran's risk was shown to be elevated, in part because of genetic factors, the law requires evidence that the condition had its onset in service or within the first year after service separation. The Veteran's reported symptoms of excessive thirst, frequent urination, and blurry vision are reported to have recurred between his separation from service and his diagnosis with diabetes. However, because these symptoms have been noted to be related to multiple conditions and are non-specific, the Board finds that they are not sufficient to justify application of the presumptive standard based on a chronic condition. In this instance, the evidence does not support service connection on a direct or a presumptive basis and the claim must be denied. 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea The Veteran seeks service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities, such as back and neck disabilities and major depressive disorder. The Veteran has submitted statements from fellow service members attesting to his having a snoring problem in service as support for his claim of incurrence of obstructive sleep apnea in service. The claim of service connection for obstructive sleep apnea was previously remanded in July 2018 with instructions to afford a VA examination with respect to the disability if service connection for back or neck disabilities was granted. Both back and neck disabilities were found to be service connected, but no specific examination of the Veteran to address his obstructive sleep apnea was provided. The Board notes that the Veteran did have a VA examination of his respiratory system in January 2013, but that examination did not discuss sleep apnea at any point and occurred prior to the remand in 2018 and therefore would not satisfy the remand directives. A VA examination and opinion, to include a discussion of secondary service connection, is required on remand. The matters are REMANDED for the following action: Provide the Veteran with an appropriate VA examination to determine the nature and etiology of any sleep apnea. Specifically, the examiner should review the statements of the Veteran regarding symptoms in service, including snoring, and any continuity and severity of symptoms and diagnosis of sleep apnea since service separation. The examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran has sleep apnea that was incurred in or had its onset during service. If that opinion is negative, the examiner should review and consider all relevant medical records related to the Veteran's neck, back, and mental health disabilities, as well as any relevant medical literature regarding links between such disabilities and sleep apnea. The examiner should then offer an opinion as to whether the Veteran's sleep apnea was at least as likely as not (probability 50 percent or greater) caused or aggravated by any or all of his service-connected disabilities. In the event aggravation is found, the examiner should provide a statement of the baseline level of severity of sleep apnea prior to such aggravation, to the extent possible. The examiner is asked to provide a statement of the reasons or rationale for all opinions provided. The examiner is asked to provide citations to specific evidence of record and any relevant medical research or literature which informs the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.