Citation Nr: 20056784 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 18-05 792 DATE: August 27, 2020 ORDER Service connection for diabetes mellitus type II is denied. FINDING OF FACT The Veteran’s diabetes mellitus type II is not related to service. CONCLUSION OF LAW The criteria for service connection and secondary service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1131,5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1944 to June 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in August 2019 and February 2020 and remanded for additional development. Diabetes Mellitus type II The Veteran seeks service connection or secondary service connection for diabetes mellitus type II. In support, his service treatment records (STR) show that he suffered from dizziness, elevated sugar levels and exogenous obesity during service. See STR (April and May 1964). The Veteran was diagnosed with diabetes mellitus in late 1980’s. See VA medical examination (April 2020). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Also, service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service connected disability; or, aggravated by a service connected disability. See 38 C.F.R. § 3.310 (2018); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). 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. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran has a diagnosis of diabetes mellitus type II. See VA medical examination (April 2020). In February 2020, the Board remanded this issue with instructions for the examiner to consider the Veteran’s diabetes contentions. Subsequently, in April 2020, the Veteran was provided a VA examination and the examiner stated that the Veteran’s diabetes was less likely related to service and his exposure to environmental hazards in Korea. His rationale was that there is no correlation between service in Korea in the 1950’s and diabetes. Additionally, he noted that the Veteran was diagnosed in late 1980s with diabetes and there is no documentation of diabetes in service. Further, he stated that no documentation indicates that his diabetes was caused by his service-connected conditions, or his dizziness or obesity in service. See VA medical examination (April 2020). The Board acknowledges that the Veteran’s STRs show that he suffered from dizziness, elevated sugar levels and exogenous obesity during service. See STR (April and May 1964). However, the April 2020 VA examiner explained that the Veteran suffered from hyperglycemia and obesity in service and these are not related to his military service, service-connected conditions or his current diabetes. Further, he stated that his diabetes was diagnosed in the late 1980s many years after service and there is no correlation between his service in the 1950s in Korea and his diabetes. As such, the Board finds that service connection and secondary service connection is not warranted. In addition, to the extent the Veteran has been diagnosed with diabetes mellitus type II, service connection on a presumptive basis is not warranted as the record does not show evidence of recurrent problems during service or continuity of symptomatology, functional impairment or a diagnosis of diabetes mellitus type II within one year of the Veteran's separation from active duty. See 38 C.F.R. §§ 3.307 & 3.309. In light of the forgoing, the Board finds that the April 2020 VA examination and the absence of medical and lay evidence suggesting a nexus between his military service or his service-connected conditions with his diabetes, to be persuasive and of the greatest probative value. It is apparent that the Veteran diabetes is not related to service or his service-connected disabilities and therefore service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection for diabetes mellitus type II. Therefore, the Veteran does not warrant service connection for diabetes mellitus type II. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- Associate 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.