Citation Nr: 1017233	
Decision Date: 05/10/10    Archive Date: 05/26/10

DOCKET NO.  09-35 201	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUE

Entitlement to service connection for diabetes mellitus, type 
II (DM).


REPRESENTATION

Appellant represented by:	New Jersey Department of 
Military and Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 


INTRODUCTION

The Veteran had active military service from October 1961 to 
September 1963.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from an April 2008 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Newark, New Jersey.

In connection with his appeal the Veteran testified at a 
videoconference hearing before the undersigned Veterans Law 
Judge in March 2010 and accepted such hearing in lieu of an 
in-person hearing before a Veterans Law Judge.  A transcript 
of the hearing is associated with the claims file. 


FINDING OF FACT

DM was not present until more than one year following the 
Veteran's discharge from service and is not etiologically 
related to his active service.


CONCLUSION OF LAW

DM was not incurred in or aggravated by active service, and 
its incurrence or aggravation during such service may not be 
presumed.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 
38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2009), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2009), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.  
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  Although the regulation previously 
required VA to request that the claimant provide any evidence 
in the claimant's possession that pertains to the claim, the 
regulation has been amended to eliminate that requirement for 
claims pending before VA on or after May 30, 2008.

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) requires that notice to a claimant 
pursuant to the VCAA be provided "at the time" that, or 
"immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  

The timing requirement enunciated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006). 

The record reflects that prior to the initial adjudication of 
the claim, the Veteran was mailed a letter in August 2007 
advising him of what the evidence must show in order to 
establish a claim of entitlement to service connection and of 
the respective duties of VA and the claimant in obtaining 
evidence.  The August 2007 letter also included appropriate 
notice with respect to the disability-rating and effective-
date elements of the claim.

The Board also finds the Veteran has been afforded adequate 
assistance in response to his claim.  The Veteran's service 
treatment records (STRs) are on file.  Private treatment 
records have been obtained.  The Veteran was afforded a VA 
examination in November 2009.  Neither the Veteran nor his 
representative has identified any outstanding evidence, to 
include medical records, which could be obtained to 
substantiate the claim.  The Board is also unaware of any 
such evidence.

In sum, the Board is satisfied that any procedural errors in 
the RO's development and consideration of the claim were 
insignificant and non prejudicial to the Veteran. 
Accordingly, the Board will address the merits of the claim.

Legal Criteria

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  

Where a veteran served for at least 90 days during a period 
of war or after December 31, 1946, and manifests DM to a 
degree of 10 percent within one year from the date of 
termination of such service, such disease shall be presumed 
to have been incurred or aggravated in service, even though 
there is no evidence of such disease during the period of 
service.  38 U.S.C.A. §§ 1101, 1112, 1137; 
38 C.F.R. §§ 3.307, 3.309.  

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary. The Secretary shall 
consider all information and lay and medical evidence of 
record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary. When there 
is an approximate balance of positive and negative evidence 
regarding any issue material to the determination of a 
matter, the Secretary shall give the benefit of the doubt to 
the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a 
claim on its merits, the evidence must preponderate against 
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert, 1 Vet. App. at 54.



Analysis

A review of the Veteran's STRs shows that at his separation 
examination in July 1963 the Veteran was found to have sugar 
in his urine.  At that time blood work was requested in order 
to rule out a diagnosis of diabetes.  In July 1963 the 
Veteran had a fasting blood sugar test done.  His fasting 
blood sugar was found to be 75 milligrams (mgm).  This was 
noted to be normal.  In September 1963 the Veteran had a two 
hour post prandial test completed.  Upon completion his 
fasting blood sugar was found to be 90 mgm, which was noted 
to be normal.  The examiner diagnosed the Veteran with renal 
glycosuria and specifically noted that the sugar in the 
Veteran's urine was not a result of DM as his fasting blood 
sugar and post prandial sugar test results were within normal 
limits.

At his March 2010 Board hearing, the Veteran reported that 
following his separation from active service he went to work 
for Lenox Hill Hospital.  According to the Veteran, he was 
required to have a physical examination every year to 
maintain employment.  The Veteran testified that his 
urinalysis laboratory results from his physical examinations 
continued to show sugar in his urine following his separation 
from active service.

Of record are private urinalysis reports from September 1999, 
July 2001, November 2001, and June 2004.  These reports show 
that the Veteran did, at times, have high levels of sugar in 
his urine.  Additionally, the record reflects that the 
Veteran was diagnosed with DM in 2004.

The Veteran was afforded a VA examination in November 2009.  
At that time the examiner confirmed the Veteran's diagnosis 
of DM.  The examiner was also asked to provide an opinion as 
to whether the Veteran's diagnosis of DM was related to his 
active service, to include the glycosuria noted on his 
separation examination report.  The examiner opined that the 
Veteran's DM was not related to the glycosuria noted on the 
Veteran's separation examination report.  

The examiner based his opinion on the fact that the Veteran 
had fasting blood sugar and post prandial tests completed 
before his separation and both tests revealed that the 
Veteran's blood sugar was within normal limits.  The examiner 
noted that this meant that the Veteran did not have 
hyperglycemia at that time, but rather just had sugar in his 
urine.  The examiner reported that sugar in the urine with 
normal or low blood glucose levels was the definition of 
renal glycosuria.  The examiner also reported that renal 
glycosuria is just a renal tubular defect which can be 
hereditary and was not a forerunner to the Veteran's 
diagnosis of DM.  The examiner also noted that renal 
glycosuria is a separate condition from DM and can actually 
be associated with hypoglycemia.  Additionally, the examiner 
reiterated that the Veteran's DM was not, in any way, related 
to his active service, including the renal glycosuria noted 
at separation.

In March 2010 VA received a statement from the Veteran's 
private physician, Dr. D.P.  In his statement, Dr. D.P. 
reported that the Veteran was currently under his care and 
that the Veteran's glycosuria could be attributed to his DM.  
Dr. D.P. noted that when sugar levels reach a certain point 
in the blood, kidneys are no longer able to reabsorb the 
sugar and eventually glucose will start to leak into the 
urine, resulting in glycosuria.

The findings of a physician are medical conclusions that the 
Board cannot ignore or disregard.  Willis v. Derwinski, 1 
Vet. App. 66 (1991).  However, greater weight may be placed 
on one physician's opinion than another's depending on 
factors such as the reasoning employed by the physician's and 
whether or not (and the extent to which) they reviewed prior 
clinical records and other evidence.  Gabrielson v. Brown, 7 
Vet. App. 36, 40 (1994). 

The Board finds that the VA examiner's opinion is more 
probative than the opinion provided by Dr. D.P., the 
Veteran's private physician.

In this regard, the Board notes that Dr. D.P. appears to be 
reporting that the Veteran's current glycosuria is related to 
his current DM, while the VA examiner provides an opinion 
that the Veteran's current DM is not related to his instance 
of glycosuria in service.  Also, the VA examiner was able to 
complete a thorough review of the Veteran's claims file, to 
include the separation examination report which noted the 
first instance of glycosuria.  There is no evidence 
suggesting that the Veteran's private physician has reviewed 
the Veteran's service records and the separation examination 
report documenting the Veteran's first instance of 
glycosuria.  Additionally, the VA examiner's opinion was 
based on the fact that at the time of his separation, the 
Veteran's blood sugar results were within normal limits 
following both fasting blood sugar and post prandial blood 
work.   

The Board finds that the VA opinion, when combined with the 
STRs, which explicitly state that the Veteran's renal 
glycosuria was not due to diabetes mellitus, provide a 
compelling case against service connection which the 
Veteran's private physician's statement fails to address.

Accordingly, the preponderance of the evidence is against the 
claim.


ORDER

Entitlement to service connection for DM is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs