Citation Nr: 20004615 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-11 437 DATE: January 21, 2020 ORDER Service connection for diabetes mellitus, type II (diabetes mellitus) is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran’s diabetes mellitus either began during service, within one year of separation from service, or is otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1973 to July 1977. A hearing was held before the undersigned Veterans Law Judge in November 2017. A transcript is of record. Following the hearing, the Board remanded the issue in February 2018 for further development. Entitlement to service connection for diabetes mellitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases, such as diabetes mellitus, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran seeks service connection for diabetes mellitus contending it was diagnosed within one year of his separation from military service. In his December 2011 VA Form 21-526, Veteran’s Application for Compensation and/or Pension, he reported that his diabetes mellitus began in January 1978. At the November 2017 Board hearing, he testified he was told he was prediabetic prior to leaving service and that shortly thereafter he started seeing a doctor and was given a diagnosis of diabetes mellitus. He also testified that the doctor who treated him at that time had since gone out of business and he was unable to obtain those records. See November 2017 Board Hearing Transcript. The Veteran’s postservice treatment records, as well as the VA examination performed in June 2019, confirm he has a current diagnosis of diabetes mellitus. The question to be resolved in this case is the onset date of that disability, to specifically include whether the disability manifested in service or within one year of service. The Veteran’s service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnoses related to diabetes mellitus. During the March 1977 service separation physical examination, the Veteran was noted to have normal endocrine findings and a negative urine glucose reading, and although the report addresses a few medical concerns, none were related to diabetes mellitus or a finding of prediabetes. See STRs. In March 2012, the Veteran submitted a “Patient Introduction Card” dated June 1979. Although this was submitted in conjunction with his then pending claim to reopen a claim for service connection for the back, it is worth noting that in the “Patient In-Depth Interview” portion of that form, the Veteran was not noted to have diabetes mellitus. The earliest documentation of diabetes mellitus in the Veteran’s claims file is from a November 1987 private treatment record in which he was noted to be a diabetic. In January 2011, it was reported during a visit with the Veteran’s VA primary care provider that his diabetes mellitus was diagnosed in 1982 with an exact date unknown. In June 2019, the Veteran was provided a VA examination in which a diagnosis of diabetes mellitus was confirmed. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner opined it was less likely than not that the Veteran’s diabetes mellitus had its onset in service. The examiner explained that there were no findings in the STRs, to include the service separation examination, that demonstrated a diagnosis of diabetes mellitus. The examiner also opined that it was less likely than not that the diabetes mellitus had its onset within one year of service separation. The examiner explained that there were no findings in the records within one year of service separation that demonstrated a diagnosis of diabetes mellitus. See June 2019 VA Examination Report. The Veteran has not submitted any additional medical evidence supporting his contention that he was identified as a prediabetic prior to his separation from service or that his diabetes mellitus was diagnosed within one year of service. Although the Veteran has indicated that medical records containing the initial diagnosis of his diabetes mellitus are not available and that, if available, would show the disability was diagnosed within one year of service, the Board notes that the available record does not support such a contention. Significantly, of record is a June 1979 “Patient Introduction Card” in which the Veteran was not reported to have diabetes mellitus. Additionally, in January 2011, prior to the Veteran’s filing of his claim for compensation, it was reported that his diabetes mellitus was diagnosed in approximately 1982. The United States Court of Appeals for Veterans Claims (Court) has held that lay statements made in connection with medical treatment may be afforded greater probative value than later statements made with self-interest in mind. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the Board finds more probative the earlier statement that the Veteran’s diabetes mellitus was diagnosed more than one year after his separation from service. While the Veteran believes his diabetes mellitus was diagnosed within one year of his separation from service, he is not competent to provide a diagnosis in this case or determine that any symptoms he may have been experiencing at that time were manifestations of diabetes mellitus as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex as it requires diagnostic testing to diagnose. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that the Veteran’s diabetes mellitus was diagnosed years after his separation from service. In this regard, a VA examiner also reviewed the Veteran’s claims file and could find no indication of diabetes mellitus having been diagnosed in service or within one year of his separation from service. See June 2019 VA Examination Report. This finding is supported by the evidence of record, as both outlined and discussed above. Service connection for diabetes mellitus may still be granted on a direct basis; however, the Veteran has not indicated how his diabetes mellitus might otherwise be related to his military service and the record does not raise any indication of an etiological relationship either. As explained above, the Veteran’s claim for service connection for diabetes mellitus has been based entirely on his contention that the disability was diagnosed within one year of his separation from service. However, this has not been shown. Accordingly, the criteria for service connection have not been met for diabetes mellitus. That is, the evidence does not show that diabetes mellitus was diagnosed in service or within a year of service and the weight of the evidence is against a finding that diabetes has existed continuously since service. Therefore, the claim is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.