Citation Nr: 18150954 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 15-15 602 DATE: November 19, 2018 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for joint pain in the hands and feet is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for depression is remanded. FINDINGS OF FACT 1. Diabetes was first diagnosed based on blood tests on January 2013, which was not during a period of active service, and it did not first manifest to a compensable degree within one year after a period of active duty. 2. At the May 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal of the issue of entitlement to TDIU is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 101(21), (24); 1101, 1112, 1113, 1116, 1131, 1137; 5107(b); 38 C.F.R. §§ 3.6(a), (d); 3.303(a), (d), 3.307, 3.309. 2. The criteria for withdrawal of the appeal for the issue of entitlement to TDIU have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February to May 1986, with additional service in the National Guard from February 1989 to July 2002 and in the Army Reserves from July 2002 to June 2004. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Active service includes active duty, a period of active duty for training (ADT) in which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and a period of inactive duty training (IDT) in which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21), (24)(B); 38 C.F.R. § 3.6(a). See also Brooks v. Brown, 5 Vet. App. 484 (1994). ADT includes full-time duty performed for training purposes by members of the Reserves or National Guard. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). IDT is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d). Annual training is an example of ADT, while weekend drills are IDT. Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as chronic by VA, which includes diabetes mellitus. 38 C.F.R. §§ 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Diabetes Mellitus The Veteran has stated at various points, including during the May 2018 Board hearing, that diabetes was first diagnosed while he was in the National Guard. During the April 2018 Board hearing, the Veteran reported he did not remember whether his medical appointment for the blood test which showed prediabetes was during a period of IDT. The Veteran is competent to report his observable symptoms and history; however, the Veteran is not competent to diagnose diabetes in the first instance, or to say whether his diabetes developed in service. Rather, such opinions require interpretation of the medical evidence and medical expertise due to the complex nature of diabetes and his complex medical history. Id. There is no competent evidence linking the Veteran’s initial development or diagnosis of diabetes to a period of active service. See 38 C.F.R. § 3.303. In this regard, the first evidence of a diagnosis of diabetes is a January 2013 blood test showing high glucose. As such, the Veteran’s testimony that diabetes may have been first diagnosed during a drill weekend is at odds with the contemporaneous medical evidence and his service personnel records, which are more probative because they were closer in time to the events. The Veteran’s memory as to whether his diabetes was first diagnosed during service appears to be faulty, possibly due to the passage of time; therefore, he is not a reliable historian and is not credible in this regard. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). There is also no medical evidence linking the Veteran’s diabetes to active service. Further, the Veteran’s diabetes did not first manifest to a compensable degree within one year after a period of active duty for 90 days or more during a period of war. Service personnel records show that his only period of active duty prior to his diagnosis of diabetes in 2013 was in 1986, which was more than 20 years earlier. Therefore, service connection cannot be granted for diabetes on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309. Absent evidence of diabetes in service or of a nexus between the current diagnosis and service, the Veteran does not meet the criteria for service connection. Accordingly, service connection is not warranted, and the appeal is denied. 2. TDIU 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. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. On the record at the May 2018 Board hearing, the Veteran requested to withdraw the appealed issue of entitlement to TDIU. Because the Veteran has withdrawn the issue of entitlement to TDIU, there remain no allegations of errors of fact or law for appellate consideration and the Board does not have jurisdiction to review the issue. For this reason, the issue of entitlement to TDIU must be dismissed. REASONS FOR REMAND 1. Joint Pain in the Hands and Feet 2. Low Back Disorder During a May 2018 Board hearing, the Veteran indicates there may be relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. 3. Depression An October 2013 private treatment record indicates the Veteran’s physical condition affects his mood. As such, because a decision on the remanded issues of entitlement to service connection for a low back disorder and joint pain could significantly impact a decision on the issue of entitlement to service connection for depression, the issues are inextricably intertwined. A remand of the claim for entitlement to service connection for depression is required. (Continued on the next page)   The matters are REMANDED for the following action: Ask the Veteran to complete a VA Form 21-4142 for any provider that treated his joint pain and low back disorders. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel