Citation Nr: 1315664
Decision Date: 05/13/13	Archive Date: 06/28/13

Citation Nr: 1315664	
Decision Date: 05/13/13    Archive Date: 05/15/13

DOCKET NO.  09-00 265	)	DATEMAY 13 2013
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for diabetes mellitus, type II.


REPRESENTATION

Appellant represented by:	D. L. Cavanaugh, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

The Veteran served on active duty from December 1976 to December 2002.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The case was subsequently transferred to VA's RO in Atlanta, Georgia. 

In May 2011, the Board denied service connection for diabetes mellitus.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  Based on a Joint Motion for Remand, the Court ordered that the case be remanded for additional development.  


ORDER TO VACATE

VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process.  38 C.F.R. § 20.904(a) (2012).  In the instant case, the Court remanded the claim of entitlement to service connection for diabetes mellitus on appeal, based on the Joint Motion's finding that the Board's May 2011 decision failed to provide adequate reasons and bases for its determination.  Therefore, the Joint Motion found that the May 2011 Board decision failed to provide the Veteran due process under the law. Accordingly, in order to prevent prejudice to the Veteran, the May 2011 Board decision that denied entitlement to service connection for diabetes mellitus must be vacated, and a new decision will be entered as if the May 2011 decision by the Board had never been issued. 



FINDING OF FACT

The medical evidence demonstrates that diabetes mellitus, type II, became manifested to a compensable degree within one year from the date of the Veteran's military retirement. 


CONCLUSION OF LAW

Diabetes mellitus, type II, was incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for diabetes mellitus, type II.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).  

In January 2013, the Veteran's attorney submitted new medical evidence to the Board without a waiver of the Veteran's right to initial RO consideration.  Although the RO has not had the opportunity to review the pertinent records, because the decision below is favorable, a remand will not be necessary for this procedural safeguard.  See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).


Service Connection

Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110; 1131' 38 C.F.R. § 3.303(a).  Moreover, in the case of diabetes mellitus and cancer, service connection may be granted if such diseases are manifested in service, or manifested to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309.

The Veteran's service treatment records contain no complaint, diagnosis of, or treatment for diabetes mellitus.  The service treatment records reflect a family history of diabetes.  

Subsequent to military retirement, a November 2003 military hospital report reflects that the Veteran underwent removal of the left kidney due to cancer.  In a pre-operative evaluation, a clinician noted that the Veteran "does appear to be pre-diabetic as he is centrally obese, mildly hypertensive on medications with glucose levels up to 126 by a basic metabolic panels."  It was further noted that "these glucose levels appeared to be non-fasting."  The pre-operative report further reflects that the clinician requested nonfasting blood glucose levels.  The Veteran's glucose levels were thereafter tested for three consecutive days following the surgery in November 2003, but only non-fasting glucose levels were obtained.  

Service connection for kidney cancer, which was shown within a year of the Veteran's retirement from active service, was granted.  Id. A diagnosis of diabetes mellitus, type II, is currently of record.  A June 2006 VA examiner concluded that kidney cancer did not cause diabetes.  

In March 2011, the Veteran testified that he was never treated for diabetes mellitus during service, he never had any problems with high or low blood sugar while on active duty, and was initially diagnosed with diabetes after his retirement from service.  He testified that a diagnosis was offered in October or November 2003, within a week of kidney cancer surgery.  He recalled that his November 2003 treating clinicians told him that there was a possibility of a connection between cancer and diabetes.  

In January 2013, a private medical opinion, was provided by T. V, M.D., an endocrinologist.  Dr. V. cited several instances during active service where the service treatment records documented the results of fasting blood glucose levels and A1c hemoglobin values.  Dr. V. explained that these blood analyses and tests established that the onset of glucose intolerance, a known pre-diabetic condition, was first shown in August 1995.  Dr. V. explained that statistics have been compiled that enable a physician to accurately forecast the date of actual onset of actual diabetes, based on the date that glucose intolerance or high blood sugar arose.  Dr. V. submitted, as supporting evidence, various studies and treatises.  Dr. V. explained that the date of August 28, 1995, was significant because high glucose was shown on that date, which then started a "time-clock" in the Veteran's case.

Dr. V. then used the statistical analysis methods explained in the studies submitted.  Dr. V. indicated that an abnormal glucose test, dated February 11, 2003, was the date that it became "highly likely" that diabetes had arisen.  Dr. V. concluded, "Based on my medical experience, and in view of these test results in addition to the persistent presence of glucose intolerance starting from 1995 as described above, it is highly likely that [the Veteran] had developed type 2 diabetes mellitus by February 11, 2003."  

This recently submitted medical opinion is persuasive, as it is based on accurate facts and is well-supported by a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding that a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value).  While Dr. V. also mentioned that diabetes mellitus "might" have arisen during active service, that explanation does not overcome, or surpass in persuasive value, the "highly likely" date of February 11, 2003, for the onset of diabetes mellitus, type II.  

The Veteran retired from active military duty on December 31, 2002.  Diabetes mellitus is compensably disabling when it is manageable by restricted diet alone.  To fulfill this requirement, the Veteran's attorney has supplemented the record with a medical treatise article that addresses nutritional recommendations for management of diabetes.  Standards of Medical Care in Diabetes-2012, p. S23, Diabetes Care, Vol 35, supplement 1, January 2012.  This treatise notes that nutrition must be monitored and managed in all cases of diabetes.  Thus, the diabetes mellitus, type II, has been compensably disabling since onset.  

As there is evidence of a current diagnosis of diabetes mellitus, type II, and medical evidence of diabetes mellitus, type II, manifested to a compensable degree within one year after retirement from active military duty, service connection for diabetes mellitus, type II, is warranted. 


ORDER

Service connection for diabetes mellitus, type II, is granted.



____________________________________________
JOY A MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs


Citation Nr: 1119736	
Decision Date: 05/23/11    Archive Date: 06/06/11

DOCKET NO.  09-00 265	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for diabetes mellitus, to include as secondary to carcinoma of the left kidney status-post nephrectomy.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

David Gratz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1976 to December 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, inter alia, denied the Veteran's March 2005 claim for entitlement to service connection for diabetes mellitus, to include as secondary to carcinoma of the left kidney status-post nephrectomy.  The case was subsequently transferred to the RO in Atlanta, Georgia.

In March 2011, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge; a copy of the hearing transcript is associated with the record.


FINDINGS OF FACT

1.  Diabetes mellitus is not shown to be related to the Veteran's military service or to any incident therein, or to his service-connected carcinoma of the left kidney status-post nephrectomy.

2.  There is no evidence of diabetes mellitus having manifested during service or within one year of discharge.


CONCLUSION OF LAW

Diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred, and nor is it due to service-connected carcinoma of the left kidney status-post nephrectomy.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist the Veteran

Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38
C.F.R. § 3.159.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38
C.F.R. § 3.159(b)(1).  Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

A July 2005 letter, provided to the Veteran before the October 2006 rating decision, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, since it informed the Veteran of what evidence was needed to establish his claim, what VA would do and had done, and what evidence he should provide.  The letter also informed the Veteran that it was his responsibility to help VA obtain medical evidence or other non-government records necessary to support his claim.

During the pendency of this appeal, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award.  The Veteran was not provided with such notice.  However, since the appellant's claim is being denied, neither a disability rating nor an effective date will be assigned, so there can be no possibility of any prejudice to the claimant under the holding in Dingess, 19 Vet. App. 473 (2006).

With respect to VA's duty to assist, the RO obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran.  The Veteran's service treatment records, VA treatment records, and available private treatment records have been obtained.  The Veteran was afforded the opportunity to present testimony at a hearing on appeal before the undersigned Veterans Law Judge.

The Veteran has not reported, and neither does the evidence of record show, that he is in receipt of Social Security Administration (SSA) disability benefits for his claimed disability.  Absent any evidence showing that the Veteran is in receipt of said benefits for his claimed disorder, VA need not attempt to obtain his SSA records.  Golz v. Shinseki, 590 F.3d 1317, 1323 (2010).

Thus, the Board considers the VA's duty to assist satisfied.  Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute.  38 U.S.C.A. § 5103A.

Laws and Regulations Pertaining to Service Connection, including Secondary Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.1(k), 3.303(a).  In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and a nexus between the in-service injury or disease and the current disability, established by medical evidence.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

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).  Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  See 38C.F.R. § 3.303(b).

Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including diabetes mellitus.)  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition.  Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008).  See also 38 C.F.R. § 3.303(b).

Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  In Allen v. Brown, 7 Vet. App. 439 (1995), the Court held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, a Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the holding in Allen; however, under the facts of this case the regulatory change does not impact the outcome of the appeal.

As with direct service connection, in the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Analysis:  Service Connection for Diabetes Mellitus, to include as Secondary to Carcinoma of the Left Kidney status-post Nephrectomy

The Veteran is in receipt of service connection for carcinoma of the left kidney status-post nephrectomy.  The Veteran's date of separation from service is December 31, 2002.

The Veteran's extensive service treatment records include no complaints, diagnosis, or treatment of diabetes mellitus.  In service treatment records dated July 1991 and July 2002, clinicians noted that the Veteran has a family history of diabetes; specifically, his father had diabetes.  The Veteran reported at his March 2011 Board hearing that he was never treated for diabetes during service, never had any problems with high or low blood sugar while on active duty, and was initially diagnosed with diabetes after service.  Id. at pp. 2-3, 5.

The Veteran also reported at his March 2011 Board hearing that he was first diagnosed with diabetes within one year of separation from service.  Id. at p. 3.  The Veteran asserted that he was first diagnosed with diabetes in October or November 2003 while he was in the hospital following left kidney removal surgery, and that he was diagnosed within a week of the surgery.  Id. at pp. 2-3, 5.

With respect to a nexus opinion, the Veteran testified at his March 2011 Board hearing that his November 2003 treating clinicians "never gave me a good reason whether [his left kidney carcinoma and his diabetes are] related but I was told by some of the doctors that it can be a possibility."  Id. at p. 3.  He elaborated that "they couldn't prove that it was related, just that there was a possibility but they didn't rule [that this] was the cause of it."  Id. at p. 5.

After service, VA provided the Veteran with a general medical compensation and pension (C&P) examination in June 2003.  The VA examiner reviewed the claims file.  The Veteran did not report any symptoms of diabetes, and the VA examiner did not diagnose him with diabetes.

The Veteran underwent a left radical nephrectomy (left kidney removal) at the Dwight David Eisenhower Army Medical Center (AMC) in November 2003, in response to his renal cell carcinoma.  In a preoperative evaluation prior to his nephrectomy, an AMC clinician noted that the Veteran "is a 45-year-old non-diabetic male."  The clinician noted that the Veteran has a family history of diabetes.  The clinician also noted that the Veteran "does appear to be pre-diabetic as he is centrally obese, mildly hypertensive on medications with glucose levels up to 126 by a basic metabolic panels.  However these glucose levels appeared to be non-fasting."  The clinician recommended that the Veteran receive additional testing for diabetes in the future.  AMC clinicians tested the Veteran's glucose levels for three consecutive days following the surgery in November 2003, but made no diagnosis of diabetes.  After that testing, an AMC clinician again noted that the Veteran has a family history of diabetes, which she expressed as "fm hx DM."

Regrettably, another copy of the November 2003 document with a notation of "fm hx DM" was inserted into the claims file, and that notation was circled in pencil.  At the Veteran's March 2011 Board hearing, his representative asserted that "we just feel that the diagnosis of diabetes was made within the first year of discharge from the military [i.e., within one year of December 31, 2002] and it was just overlooked by the VA."  Id. at p. 7.  The Veteran and his representative appear to have mistaken the finding of a family history of diabetes-which had also been recorded in the Veteran's service treatment records-for a diagnosis of diabetes.  However, as explained above, the Veteran was found to be non-diabetic in November 2003 prior to the surgery, and, despite glucose testing after the surgery and extensive documentation of the Veteran's post-surgical medical status, there is no diagnosis of diabetes of record within one year of December 31, 2002, the Veteran's date of separation from service.

The Veteran's post-service records include an initial diagnosis of diabetes mellitus in May 2004, by AMC clinicians.  The Veteran has multiple additional diagnoses of diabetes mellitus by AMC, VA, and private clinicians, including in November 2004, December 2004, January 2005, March 2005, September 2005, March 2006, December 2006, April 2007, and June 2007.

VA provided the Veteran with a second general medical C&P examination in June 2006.  The examiner, a physician, noted that the Veteran was claiming service connection for diabetes mellitus as secondary to his renal carcinoma, and that he was initially diagnosed with diabetes mellitus in 2004.  After noting this history and reviewing the results of multiple diagnostic tests, including glucose testing, the VA examiner concluded that "the [Veteran's] diabetes is not secondary to his renal carcinoma."  The VA examiner further explained that the Veteran's "type 2 diabetes do[es] not prevent [him] from being employable."

In his August 2007 notice of disagreement, the Veteran offered a third theory of entitlement to service connection for his diabetes, in addition to his contentions that it was diagnosed within one year of service, and that it is secondary to his service-connected carcinoma of the left kidney status-post nephrectomy.  The Veteran advanced a theory of direct service connection, asserting that "I feel [that] by doing day to day long hours in the Infantry Jobs that I had along with 8 years on Drill Sergeant Duty did not allow...time for me to be diagnosed [with] diabetes.  While on active duty I did not have a choice of what to eat to stay on a control diet.  In the 1970's an[d 19]80's the military was not enforcing diet control....When you are in the field as much as I was, you had to eat and drink whatever is available.  I feel I had diabetes a long time ago in my career but it was shielded by daily physical activity which I am not able to do often as needed.  In the early days in the infantry we were told to gut it out because there were not diet guides on proper nutrition until years later when it is almost too late."

In his January 2009 substantive appeal, the Veteran asserted that "I did not get diabetes until I had my kidney remove[d] and I think it has something to do with the Gulf War illness."  The Veteran is not in receipt of service connection for Gulf War illness.

The Veteran is competent to report that he was never treated for diabetes mellitus during service, and that his diet in service was not controlled.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but 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.)  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay 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).

However, although the Veteran is competent to report eating an uncontrolled diet in service, he is not competent to render an opinion as to the impact of his in-service diet, or any Gulf War illness, on his current diabetes mellitus, absent evidence showing medical training or expertise.  See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (2007).

The Veteran's assertion that he was diagnosed with diabetes mellitus within one year of separation from active duty cannot support a grant of service connection.  Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a layperson's account of what a doctor purportedly said is too attenuated and inherently unreliable to constitute medical evidence).  The Board has obtained and reviewed the Veteran's in-service and post-service treatment records, and none contain a diagnosis of diabetes within one year of his separation from service.  Occasional references in the Veteran's VA treatment records, such as those dated September 2005 and April 2007, to an initial diagnosis of diabetes in 2003 likewise cannot support a grant of service connection on a presumptive basis because they are based solely on the Veteran's own reported history; none of these reports cite a specific clinician or a specific date of diagnosis within one year of December 31, 2002.

The Board finds that the Veteran's June 2006 VA examination is adequate because it was conducted by a competent physician who fully described the functional effects caused by his diabetes.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Additionally, the VA examiner provided a medical opinion, complete with the rationale described above.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Board further finds that the VA examiner's medical findings are credible, based on their internal consistency and the VA examiner's duty to offer truthful opinions.  Consequently, the Board assigns considerable probative value to the VA examiner's report.

Competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Because the June 2006 VA examiner is so qualified, his medical opinions constitute competent medical evidence.

Furthermore, the Veteran's own determinations about the etiology of his diabetes mellitus as secondary to his service-connected carcinoma of the left kidney status-post nephrectomy is outweighed by the more probative findings of the June 2006 VA examiner, because his determinations are based on greater medical knowledge and experience.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993).

The Veteran is not entitled to service connection based on the finding of a chronic disease, or on the basis of continuity of symptomatology, because he was not diagnosed with diabetes mellitus during or within one year of service.  38 C.F.R. §§ 3.303(b), 3.307, 3.309.

The preponderance of the evidence is against the award of service connection for diabetes mellitus; it follows that the benefit of the doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).  As such, the Veteran's claim is denied.


ORDER

Service connection for diabetes mellitus is denied.



____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs