Citation Nr: 1334493 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-03 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to September 2003, to include service in the Persian Gulf. This appeal is before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. FINDING OF FACT Diabetes was not present until more than one year after the Veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's 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. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in May 2008, prior to the initial adjudication of the claim. The Board also finds that VA's duty to assist has been satisfied. The Veteran's service treatment records are in the claims folder. Private and VA medical records identified by the Veteran have been obtained, to the extent possible. Neither the Veteran nor her representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Veteran was provided a VA examination in September 2011 and the Board obtained a VA medical opinion June 2013. The June 2013 medical opinion is based on a review of the Veteran's pertinent history and is properly supported. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 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 diabetes mellitus 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. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 (West 2002); 38 C.F.R. § 3.102 (2013); 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. Factual Background and Analysis The Veteran claims that service connection is warranted for her diabetes because elevated blood glucose sugar levels during her active service were early manifestations of the disease. The Veteran's service treatment records do not show any diagnosis of diabetes mellitus, type II. In 1997, however, the Veteran was treated for a bladder infection and urinary tract infections. In November 1997, she presented complaining of fatigue and frequent urination. The physician at that time noted "R/O [Rule Out] DM [diabetes mellitus]." The findings on the March 1998 examination, however, were within normal limits. The service treatment records do document elevated fasting blood sugar readings. Her fasting glucose on September 17, 1999, for example, was 107. On February 3, 2003, it was 107. Her urine sugar tests, however, were always negative. Despite some higher readings, the Veteran was never diagnosed with or treated for diabetes mellitus during her military service. In fact, the Veteran was afforded a general pre-discharge VA examination in April 2003. At that time, the Veteran did not complain of diabetic symptoms nor was diabetes diagnosed at that time. After service, private treatment records indicate the Veteran was first diagnosed with diabetes in January 2008. A Navy physician has provided a September 2009 statement in support of the Veteran's claim. He noted the elevated blood sugar readings during the Veteran's military service, that they showed that she met the criteria impaired fasting glucose in February 2003, and that one third of patients with pre-diabetes develop clinical diabetes mellitus within four years. He added that the Veteran should have been referred in service for nutritional counseling to follow a diabetic diet. The Veteran was afforded a VA examination in September 2011. Following the examination and review of the Veteran's pertinent history, the examiner opined that the Veteran's diabetes mellitus was not present in service and was not related to service. In support of the opinion, the examiner stated that although the military records indicate some elevated fasting blood sugar levels, her urine sugar tests from April 1982 to April 2003 were always negative. Further, she was not clinically diagnosed with diabetes until 2008, years after her military service. Pursuant to the Board's request, a VA physician reviewed the Veteran's claims files and provided a medical opinion in June 2013. The physician stated that normal fasting plasma glucose is less than 100 mg/dl. Fasting plasma glucose of 100 to 125 mg/dl is referred to as impaired fasting glucose using the American Diabetes Association Criteria. Patients with impaired fasting glucose are at increased risk for developing diabetes. That is, approximately 25% of such patients will develop diabetes in 3 to 5 years. The diagnosis of diabetes, however, is made when one of the following laboratory criteria are met and confirmed by repeat testing without clinical signs of diabetes: - Random blood glucose of 200 mg/dl or higher; - Fasting plasma glucose of 126 mg/dl or higher - 2 hour oral glucose challenge glucose of 200 or higher - AIC 6.5% or higher In regard to the Veteran's specific case, the VA physician indicated that it is, "unlikely that the Veteran had diabetes during her military service or within one year of her separation from the military." He stated that the Veteran had in-service blood glucose readings that met the definition of "impaired fasting glucose," which certainly "increases the risk for developing diabetes." However, he also indicated that impaired fasting glucose is an abnormal laboratory finding but does not constitute a disease or injury. The VA physician further opined that it is not at least as likely as not that her post-service diagnosis of diabetes mellitus, type II, is attributable to her military service. Specifically, the physician opined as follows: The Veteran's diagnosis of diabetes in 2008, almost 5 years after her military service, does not appear likely due to her military service. Approximately 25% of patients with impaired fasting glucose progress to diabetes in 3 to 5 years. The Board finds the June 2013 VA medical opinions to be persuasive. They are based on a complete review of the Veteran's pertinent history and are properly supported. The September 2008 Naval physician indicated the in-service laboratory findings confirmed an impaired fasting glucose, or "pre-diabetes." The physician who provided the June 2013 opinion did not dispute that determination. The 2008 Naval physician also stated that 1/3 of patients with these findings develop diabetes within four years. The VA physician did not dispute this either. The Naval physician did not address whether impaired fasting glucose is a disease or injury. The VA physician who provided the June 2013 opinion specifically indicated that impaired fasting glucose is an abnormal laboratory finding and does not constitute a disease or injury. The Veteran did not actually meet the clinical criteria for the diagnosis of diabetes until 2008, years after service. The in-service laboratory findings merely confirmed she was at risk for developing diabetes in years to come. In short, the evidence confirms the Veteran had elevated fasting blood sugar levels during service as well as complaints of fatigue and frequent urination. The Veteran, however, was not clinically diagnosed with diabetes mellitus, type II, until over four years after service. No medical professional has indicated she had diabetes in-service or within one year of service. The most persuasive medical evidence, moreover, indicates the Veteran's current diabetes is not etiologically related to her military service. In reaching this decision the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs