Citation Nr: 18154265 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 10-41 989 DATE: November 30, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s diabetes mellitus, type II is not related to his military service and did not manifest itself to a compensable degree within one year of service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2013, the Veteran and his fiancée testified before the undersigned Veterans Law Judge at a Board hearing. A transcript is associated with the claims file. In January 2014, this matter was remanded for additional development, to include obtaining outstanding VA treatment records; as well as a VA examination and opinion. In an October 2016 decision, the Board denied, in part, the Veteran’s claim. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2017 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s decision relevant to the denial of service connection for diabetes mellitus, type II; and remanded the matter for compliance with the terms of the JMPR. In October 2017, the Board remanded the appeal to seek an addendum VA medical opinion, in accordance with the July 2017 JMPR. The addendum opinion was obtained in December 2017, and the appeal has now returned to the Board. Entitlement to service connection for diabetes mellitus, type II is denied. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (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). In addition, certain listed chronic diseases, such diabetes mellitus, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, 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 a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran seeks entitlement to service connection for diabetes mellitus as a result of his military service. There is no dispute that he has a current diagnosis of diabetes mellitus, type II. See July 2014 VA Examination Report. Service treatment records are silent for complaints of or treatment for diabetes. At the time of the March 1976 separation examination, the Veteran’s urine was negative for sugar. During the July 2013 Board hearing, the Veteran testified that he experienced recurrent shakiness and dizziness since service. He stated that he treated these symptoms by ingesting a Coke or sweets during service. His fiancée testified that she recognized diabetic symptoms because her mother is a diabetic, and had observed this shakiness in the Veteran since they first met in 1999. In July 2014, the Veteran was afforded a VA examination for his diabetes mellitus. The examiner opined that the Veteran’s current diabetes mellitus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that the medical evidence showed the Veteran was diagnosed with diabetes mellitus on June 4, 2007, over 30 years after service in the military. The examiner indicated that there was no evidence of complaints or symptoms related to diabetes mellitus, type II prior to starting medication for this condition. In the December 2017 addendum opinion, a VA examiner concluded that the Veteran’s diabetes mellitus was not etiologically related to his period of active duty service. She acknowledged his reports regarding shakiness and dizziness during service, but determined that such were unrelated to the current condition. The examiner based her conclusions upon the lack of documentation of any such symptoms in the service treatment records and immediate post-service medical records. She further attributed the current diabetes mellitus to the Veteran’s age, weight, hypertension, and genetics, as supported by medical literature. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for diabetes mellitus. The competent medical evidence shows a current diagnosis of diabetes mellitus, type II; however, there is no medical evidence to even suggest a nexus between such disability and service. That is, the Veteran’s service treatment records are negative for any findings or diagnosis of diabetes mellitus; hence, the disability was not shown in service. The evidence is clear that the Veteran’s diabetes did not manifest and was not diagnosed until decades after his service discharge. As to this, the passage of many years-here, a matter of decades-between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Further, the Board places great probative weight on the VA examiners’ opinions that the Veteran’s diabetes mellitus was less likely than not related to his military service. Notably, the December 2017 examiner clearly reviewed the claims file and thoroughly summarized pertinent clinical records, indicating that she was fully aware of the extent of the Veteran’s claimed condition, as well as his medical history and reported dizziness and shakiness. She offered a discussion analyzing the pertinent evidence of record and explaining the basis for the opinion. She further cited to alternative risk factors as the likely cause of the diabetes mellitus, as supported by medical research. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As there have been no opinions submitted in favor of the Veteran’s claim, the VA opinions are the only probative medical opinions of record. The Veteran’s lay assertions represent the only evidence of record linking his diabetes to service, but these assertions are incompetent and therefore less probative than the medical opinion noted above. Although the Veteran is competent to describe when he began experiencing certain lay-observable symptoms, such as dizziness and shakiness, having no training or expertise in medicine, he is not competent to offer an opinion on the complex issue of when a diabetes diagnosis initially manifested. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, supra. Thus, again, the lay assertions in this regard have no probative value. Moreover, diabetes mellitus, type II was not manifested within one year from separation of service, and, therefore, there is no basis for a grant of service connection as a chronic disease presumed to have been incurred in service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The claim also cannot be granted on the theory of continuity. As noted, the Veteran reports continuous symptomatology since his active military service. The Board observes however, that his contentions are not supported by the medical evidence of record. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from June 2007, thirty years after the Veteran’s military separation in June 1976. Furthermore, service treatment records do not show that he developed diabetes mellitus during his active military service, nor do they document any complaints, treatment, or symptomatology related to this condition. When the Veteran was first treated post-service in 2007, he did not indicate that his diabetes mellitus had been present since his active military service, and the symptoms he reports are not shown by competent evidence to be those associated with untreated diabetes. The evidence of record does not show continuity of symptomatology during and since the Veteran’s active military service. Thus, the Board finds that the medical evidence does not establish a “chronic disorder.” 38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331. As such, the preponderance of the evidence is against entitlement to service connection for diabetes mellitus, type II. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel