Citation Nr: 1709220 Decision Date: 03/24/17 Archive Date: 04/07/17 DOCKET NO. 14-08 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for diabetes mellitus, type II. The Veteran filed a notice of disagreement (NOD) in February 2013. The RO issued a statement of the case (SOC) in February 2014. The Veteran filed his VA Form 9 in March 2014. In October 2015, a video conference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. In November 2015, the Veteran submitted additional evidence in support of his claim with a written waiver of Agency of Original Jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (c). In a March 2016 decision, the Board denied the Veteran's claim. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). An October 2016 Joint Motion for Remand (JMR) vacated and remanded the March 2016 Board decision. The case has been returned to the Board for action consistent with the JMR. This appeal was processed using the Veterans Benefits Management System (VBMS). A review of the Veteran's Virtual VA claims file reveals VA treatment records dated November 2002 to July 2012 and a February 2014 VA examination. FINDING OF FACT The evidence of record is at least in relative equipoise as to whether the Veteran's diabetes mellitus, type II, is etiologically related to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In light of the Board's favorable decision to grant service connection, no discussion of the VA's duty to notify and assist is necessary. Analysis The Veteran contends that his diabetes is related to his military service. Specifically, the Veteran contends that he had prediabetes during service. The Veteran also asserts that his high cholesterol, which occurred in service, is an early manifestation of his current diabetes mellitus, type II, disability. 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) (2016). In addition, service connection may be granted for a disease diagnosed after discharge from service, when all of the evidence, including that pertinent to service, shows that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Service connection may also be established on a presumptive basis for a chronic disease, such as diabetes mellitus, if such disease is shown to have been manifested to a compensable degree within one year from the date of termination of such service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In general, to establish service connection for a claimed disorder, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury and the current disability. See, e.g., Hickson v. West, 12 Vet. App. 247, 253 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against a claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Turning to the evidence of record, the Veteran has a current diagnosis of diabetes as illustrated by a July 2012 report of VA examination. The Veteran's service treatment records contain no diagnosis of diabetes. The service treatment records do contain laboratory findings establishing that the Veteran showed a high level of cholesterol during service. Therefore, the Veteran's claim turns on whether his currently diagnosed diabetes is related to his military service, namely the high level of cholesterol noted in service. In this regard, a July 2012 VA examiner concluded that diabetes was at least as likely as not a progression of a disease, which started during the military service, if it was a progression of prediabetes or metabolic syndrome involving elevated cholesterol. The examiner noted that the laboratory values from his service records were not available to confirm the presence of metabolic syndrome while in the military. The examiner noted that it was suspicious because of the relatively short time for him to develop some of the complications. That notwithstanding, the examiner concluded that it was at least as likely as not that the Veteran was insulin resistant or prediabetic- suffering from metabolic syndrome from his time in the service. While noting that the records did not provide sufficient information to access, the examiner explained that the Veteran did have an elevated BMI over 30 confirmed in the records, indicating that the Veteran may have had elevated triglycerides, and HDL below 40, or a FBS over 100. Thus, the examiner concluded that, in that case, the diabetes would be a progression of a disease which started during the military service. A February 2014 VA examiner opined that it was less likely as not that the Veteran had prediabetes or metabolic syndrome during service. The examiner also concluded that it was less likely than not that the Veteran's diabetes incurred in or was caused by his in-service illness, high cholesterol. The examiner reasoned that the recent opinion postulating the relationship between cholesterol levels and pre-diabetes and metabolic syndrome is highly speculative and unnecessary. The examiner commented that "[t]he Veteran either had diabetes in service, or within one year of separation, or he didn't. There is no evidence supplied in the STRs that the Veteran met the criteria for diabetes while in service. There is no evidence that he met the criteria for diabetes within one year of service. The record from 2/16/2010 mentions that he was diagnosed with diabetes 5-6 years prior. That's more than 12 years post service." The examiner further commented that "there is plenty of evidence in the STRs that the Veteran was non-compliant . . . with efforts to control his sugars. The 5/25/2011 note details his dietary indiscretions. His hemoglobin A1C levels have remained poorly controlled despite attempts from dietary counseling. As such, I opine that [the] Veteran was not a diabetic in service, or within one year of separation. Any connection to the possibility of being on the way to diabetes while in service based on metabolic syndrome onset is pure speculation and unnecessary, especially since the diagnosis of diabetes came more than 12 years later in the setting of obesity and a cavalier diet." The Board acknowledges the differing opinions proffered by two equally qualified medical professionals and concludes that one opinion does not outweigh the other. The Board thus finds that the record evidence is at least in relative equipoise as to whether the Veteran's diabetes is related to his military service. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the criteria for establishing service connection for diabetes mellitus, type II, are met. See 38 C.F.R. § 3.303(d). The appeal is granted. ORDER Entitlement to service connection for diabetes mellitus type II is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs