Citation Nr: 1517651	
Decision Date: 04/24/15    Archive Date: 05/04/15

DOCKET NO.  11-09 539	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with insomnia.

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for diabetes mellitus.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel


INTRODUCTION

According to the agency of original jurisdiction (AOJ), the Veteran served on active duty in the U.S. Navy from September 1987 to September 1997.  He was also a member of the Army National Guard of Georgia from June 2003 to May 2009, and served on active duty in the U.S. Army from January 2005 to July 2006, to include a period of active duty in Kuwait and Iraq from May 2005 to April 2006.  He received the Combat Action Badge, among other awards and decorations.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  By that decision, the RO denied service connection for diabetes mellitus and a rating in excess of 30 percent for PTSD with insomnia.  In a February 2011 statement of the case, the RO augmented the appeal to include the issue of the Veteran's entitlement to service connection for sleep apnea (apparently, as part and parcel of his PTSD claim).

In February 2015, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board hearing held at the RO.  A transcript of that hearing has been prepared and associated with the record on appeal.

During the February 2015 hearing, the undersigned agreed to hold the record open for a period of 30 days to allow for the submission of additional evidence.  The Veteran thereafter submitted additional evidence in support of his appeal and a written waiver of his right to have the AOJ review that evidence in the first instance.  See 38 C.F.R. § 20.1304(c).

This appeal is being processed using the paperless, electronic Virtual VA and Veterans Benefits Management System (VBMS) claims processing systems.


FINDINGS OF FACT

1.  During the February 2015 Board hearing, the Veteran indicated that he wished to withdraw his appeal with respect to service connection for sleep apnea and a rating in excess of 30 percent for PTSD with insomnia.

2.  The evidence is at least in relative equipoise as to whether diabetes mellitus was incurred during active duty.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran (or his authorized representative) with respect to his claims for service connection for sleep apnea and a rating in excess of 30 percent for PTSD with insomnia have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes mellitus have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  PTSD and Sleep Apnea

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2014).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

During the February 2015 Board hearing, the Veteran stated that he wished to withdraw his appeal with respect to service connection for sleep apnea and a rating in excess of 30 percent for PTSD with insomnia.  Thus, no allegations of errors of fact or law remain for appellate consideration with respect to either of those matters.  As such, the Board does not have jurisdiction to review the claims and the appeal as to those issues must be dismissed.

II.  Diabetes Mellitus

The Veteran seeks to establish service connection for diabetes mellitus.  He maintains, in essence, that the condition had its onset during his period of active duty from January 2005 to July 2006.  He has testified that he experienced a noticeable increase in thirst while stationed in Iraq, that he started having problems with blurry vision around July 2007, and that he was ultimately diagnosed with diabetes in September 2007, while training in Germany with the Army National Guard.

Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

However, if a veteran serves 90 days or more of active, continuous service during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014).  This presumption may be rebutted by affirmative evidence to the contrary.  38 U.S.C.A. § 1113 (West 2014); 38 C.F.R. § 3.307(d) (2014).

In the present case, the medical evidence clearly reflects that the Veteran has been diagnosed with diabetes mellitus.  As such, the presence of current disability is conceded.

With respect to the elements of in-service incurrence and nexus, the Board finds the Veteran's testimony that he experienced increased thirst (i.e., polydipsia) during his period of active duty from January 2005 to July 2006, and blurred vision at least as early as July 2007, credible.  His private treating physician, Dr. Gibson, has opined in a February 2015 statement, in effect, that such symptoms were likely indicative of diabetes.  That opinion is uncontradicted.  Moreover, medical evidence reflects that elevated blood glucose levels were noted on service department examination in September 2006, and on VA treatment in October 2006; well within the one-year presumptive period.

The Board acknowledges that the record contains a statement from the Veteran's treating VA physician to the effect that the Veteran's diabetes is attributable to weight gain.  The Boards finds, however, that the statement from that physician does not preponderate against the Veteran's claim.  Specifically, although the AOJ has been unable to obtain the Veteran's complete service treatment records from his Army National Guard service, the available evidence appears to reflect that at least some of the Veteran's weight gain may have occurred during active duty.  The evidence shows, for example, that the Veteran weighed 196 pounds in June 2003, when he entered the Army National Guard (prior to his entry onto active duty in January 2005), and that he weighed 245 pounds in September 2006 (less than two months after his separation from active duty in July 2006).  Moreover, the Veteran's private treating physician has indicated, in effect, that one of the symptoms of the Veteran's diabetes is polyphagia (i.e., excessive hunger).  As such, the evidence is at least in relative equipoise as to whether his diabetes is attributable to weight gain, or his weight gain is attributable to diabetes.

Following a review of the record, the Board is satisfied that the criteria for entitlement to service connection for diabetes mellitus have been met.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 U.S.C.A. 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014).


ORDER

The appeal with respect to service connection for sleep apnea and entitlement to a rating in excess of 30 percent for PTSD with insomnia is dismissed.

Service connection for diabetes mellitus is granted.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs