Citation Nr: 1802642 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-01 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from December 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was previously remanded by the Board in September 2014 and July 2016. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) of the Board in July 2013. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). However, the VLJ who conducted the July 2013 Board hearing is no longer employed by the Board. In July 2017, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the July 2013 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The Veteran responded by indicating that he did not desire another Board hearing, and wanted the Board to consider the case on the evidence of record. FINDING OF FACT The most probative evidence of record does not show that the Veteran's diabetes mellitus, type II, had its onset during his active service or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 5103, 5107A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis The Veteran contends that he has diabetes mellitus, type II, which pre-existed his active military service and was aggravated by the food he ate as a cook during service. See, e.g., VA Form 9 received March 2013. To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. Initially, the Board acknowledges that the Veteran has indicated that he had diabetes mellitus, type II, prior to entering active service. Specifically, at the July 2013 Board hearing, the Veteran testified that he was originally diagnosed with diabetes when he was approximately 13 or 14 years old. However, the Veteran's October 1968 induction examination does not contain a notation that the Veteran had diabetes at induction. Additionally, on the October 1968 report of medical history, the Veteran noted that he never had any illness or injury prior to induction. Furthermore, the Veteran's statements alone do not constitute clear and unmistakable evidence that he had preexisting diabetes mellitus, type II, upon entrance into service. Furthermore, the record does not contain any contemporaneous medical evidence of diabetes that preexisted the Veteran's active service. As such, diabetes was not "noted" on entrance to active service, the record is absent for clear and unmistakable evidence showing that the Veteran had diabetes that preexisted his active service, and the presumption of soundness attaches. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Accordingly, the Board must address direct service connection for diabetes mellitus, type II. The medical evidence of record, to include the December 2014 VA examination report, confirms that the Veteran has a current diagnosis of diabetes mellitus, type II. Therefore, there is competent evidence of a current disability. As to an in-service event, injury or disease the Veteran's service treatment records do not reflect complaints related to diabetes or symptoms associated with diabetes. At the July 2013 Board hearing the Veteran testified that he suffered several bouts of dizziness and lightheadedness during active service. The Veteran is competent to report symptoms, such as dizziness and lightheadedness that he experienced while in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds there is evidence of an in-service injury of dizziness and lightheadedness. Therefore, the question remaining for consideration is whether there is a causal relationship between the in-service dizziness and lightheadedness and the Veteran's current diabetes mellitus, type II. With respect to a nexus between the current disability and in-service injury, the only competent medical opinion of record is the November 2016 VA addendum opinion. The November 2016 VA examiner reviewed the record and noted the Veteran's diagnosis of diabetes mellitus, type II. The VA examiner opined that the Veteran's current diabetes mellitus, type II, is not as least as likely as not related to his active service. As rationale, the VA examiner stated that the Veteran's diabetes mellitus, type II, was not diagnosed until many years after his separation from active service. Additionally, the VA examiner stated that there was no evidence in the medical record that demonstrates his current diabetes mellitus, type II, was due to his active service. The only evidence indicating an association between the current diabetes mellitus, type II, and active duty are the Veteran's own assertions. At the July 2013 Board hearing the Veteran stated that he suffered from dizziness and lightheadedness during his active service and that his diabetes mellitus, type II is related to his active service. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of diabetes mellitus, type II, is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran's current diabetes mellitus, type II had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of diabetes mellitus, type II. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the lay statements provided by the Veteran are not competent evidence as to whether the Veteran's current diabetes mellitus, type II, is related to active service. Moreover, such a finding is not supported by the record. Specifically, the November 2016 VA examiner determined that the Veteran's diabetes mellitus, type II is not related to his active service. The service treatment records do not show a diagnosis of diabetes mellitus, type II. Furthermore, the medical evidence of record does not show that the Veteran was diagnosed with diabetes mellitus, type II, within one year of his separation from active service. Therefore, the evidence does not show that the Veteran's diabetes mellitus, type II, had its onset during his active service or that service connection is warranted on a presumptive basis as a chronic disease under the provisions of 38 C.F.R. §§ 3.307 (a) (3) and 3.309 (a). In addition, the Veteran does not contend, and the record does not show, that he had service that would entitle him to a presumption of exposure to herbicide agents, such as service in the Republic of Vietnam during the Vietnam era. See 38 C.F.R. § 3.307 (a) (6). As such, the evidence does not show that service connection is warranted on a presumptive basis due to exposure to herbicide agents under the provisions of 38 C.F.R. § 3.307 (a) (6) (ii) and 3.309 (e). In summary, the Veteran has contended that his diabetes mellitus, type II preexisted his active service and was aggravated by the food he ate as a cook. His contention is not supported by the evidence of record since diabetes was not noted on his entrance examination and there is no contemporaneous medical record showing that his diabetes preexisted the Veteran's active service. The Veteran further contends that his diabetes mellitus, type II is related to in-service food he ate as a cook. His contention that his diabetes mellitus, type II, is related to food he ate in service, is not supported by the medical evidence of record. In addition, the record does not show that the Veteran's diabetes mellitus, type II was diagnosed within one year of his separation from active service. Therefore, the evidence of record does not show that the Veteran's diabetes mellitus, type II, had its onset during his active service; that the criteria for entitlement to service connection for diabetes mellitus, type II, on a presumptive basis as a chronic disease were met; or that the Veteran's diabetes mellitus, type II, is otherwise causally or etiologically related to his active service. In view of the foregoing, the Board concludes that there is no probative evidence of record indicating that the Veteran's diabetes mellitus, type II, is causally or etiologically related to his active service. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs