Citation Nr: 1817109	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  13-14 007	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for type II diabetes mellitus.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1983 to September 1990, October 2001 to July 2002, and from July 2007 to July 2008, including service in an imminent danger pay area in Kuwait/Afghanistan from August 2007 to June 2008 and her decorations include the Afghanistan Campaign Medal.  Further, the record reflects she had additional service in the Reserves.

This matter is before the Board of Veterans' Appeals (Board) originally on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for type II diabetes mellitus.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2016.  A transcript of this hearing is of record.

In June 2016, the Board remanded the case for further development.  The case has now been returned for additional appellate consideration.


FINDINGS OF FACT

The competent medical and other evidence of record reflects it is at least as likely as not the Veteran's type II diabetes mellitus was present to a compensable degree within one year following her July 2008 separation from active duty.


CONCLUSION OF LAW

The criteria for a grant of service connection for type II diabetes mellitus are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  Service connection may also be established on a presumptive basis for certain chronic diseases, including type II diabetes mellitus, that are shown to be present to a compensable degree within one year of separation from active service.  38 C.F.R. §§ 3.307, 3.309(a).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In this case, the Veteran reports that her diabetes developed while on active duty and cites findings showing elevated glucose levels.  Her service treatment records confirm findings of glucose intolerance and records dated in June 2007 reflect glucose testing note she was "pre-diabetes."  Although such findings were noted below, this claim was denied because the record did not show an actual diagnosis of type II diabetes mellitus until September 2010 which was more than one year after the Veteran's last separation from active duty in July 2008.  In addition, the Board notes that an October 2016 VA examiner provided an opinion to the effect that the medical testing did not show the Veteran had diabetes until September 2010.

The Board notes, however, that a November 2010 Medical Evaluation Board (MEB) report included a finding that the Veteran's diabetes was incurred during a period she was entitled to base pay, and that the approximate date of origin was in 2009.  Moreover, the MEB report related that date of origin to a period when the Veteran underwent testing for glucose intolerance and was prescribed an oral medication to treat that condition.  This description appears consistent with medical treatment received by the Veteran as documented by records dated in February 2009, which is less than a year after her most recent separation from active service.

In view of the foregoing, the Board must find the competent medical evidence is in equipoise as to whether medical testing demonstrated type II diabetes mellitus was present to a compensable degree within one year following the Veteran's July 2008 separation from active duty.  Further, the Board notes that the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Moreover, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails.  

For these reasons, the Board finds that service connection is warranted for type II diabetes mellitus pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(a).


ORDER

Service connection for type II diabetes mellitus is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs