Citation Nr: 20061990 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 12-01 101 DATE: September 21, 2020 ORDER Entitlement to service connection for diabetes mellitus, type II is denied. FINDING OF FACT The Veteran did not have type I diabetes mellitus upon entry into service and his current diabetes condition neither had its onset in nor is it otherwise related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 1132, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2018, at which time the claim for service connection for diabetes mellitus, type II was denied. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (CAVC), which vacated the January 2018 decision and remanded the claim pursuant to a Joint Motion for Remand (JMR) entered into by the Veteran and VA. As required by the terms of the JMR, the Board remanded the claim for service connection for diabetes in January 2019 for a VA examination addressing the Veteran’s lay statements of symptomatology. As the Veteran was afforded such an examination in October 2019, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s Contentions The Veteran contends that he had juvenile diabetes upon entry into service, that his duties as a cook in service aggravated his condition and that he was treated for diabetic symptoms while in service, including kidney problems. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was clearly and unmistakably not aggravated. See 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 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. 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. Alemany v. Brown, 9 Vet. App. 518 (1996). Diabetes Mellitus, type II As noted, the matter was most recently remanded pursuant to the terms of the JMR in order, in part, to obtain a VA examination addressing the Veteran’s contentions that his diabetes pre-existed service. The Veteran reported to the December 2014 VA examiner that the onset of symptoms was 1962 and that he took pills, and occasionally insulin. The Veteran testified in a July 2013 Board hearing that he was diagnosed with diabetes in 1962, and had symptoms in service but did not receive any treatment in service. The October 2019 VA examiner explained that if the Veteran had juvenile diabetes, he would have been treated by insulin, but the records did not contain evidence of insulin treatment for the Veteran’s diabetes at any time. The October 1968 entrance examination in the Veteran’s service treatment records (STRs) noted that the Veteran’s urine was negative for sugar and marked the clinical examination as normal. The Veteran reported that he did not have frequent urination or sugar in his urine. The September 1970 separation examination also noted the Veteran’s clinical examination was normal and that his urine was negative for the presence of sugar. The Veteran stated at the time of the September 1970 examination that he was “in good health.” The October 2019 VA examiner noted that the earliest documented date for the Veteran’s diagnosis was in 2009, with a likely onset of 2008. The VA examiner also explained that the Veteran’s kidney problems were unrelated to diabetes because the nephrectomy performed in the 1980s was due to cysts, and such a procedure is not an indication for diabetic nephropathy. Based on her review of the record and consideration of the Veteran’s statements, the VA examiner opined that the Veteran’s diabetes less likely than not pre-existed the Veteran’s military service. The Board finds the opinion of the examiner probative and entitled to weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the objective medical evidence does not support the Veteran’s contentions that his diabetes was present before service. Accordingly, the Board concludes that the Veteran’s diabetes was not a pre-existing upon his entry into service. The Board also finds that the preponderance of the evidence is against service connection for diabetes mellitus, type II on a direct basis or as a chronic condition. As noted, the Veteran’s VA treatment records reflect a current diagnosis of type II diabetes mellitus and the October 2019 VA examination indicates that the earliest onset of diabetes mellitus, type II was likely 2008. The STRs are silent for complaints and treatments related to diabetes. Although the absence of contemporaneous medical records is not a bar to service connection, the Board finds the contemporaneous medical evidence establishing that the Veteran did not have sugar in his urine or any symptomatic condition entitled to greater weight on the issue of whether the Veteran exhibited symptoms of diabetes in service. The competent evidence of record is also against a finding of a nexus between the Veteran’s service and his current diabetes mellitus condition. The record does not contain any medical opinion weighing in favor of service connection. The October 2019 VA examiner concluded that it was less likely than not that the Veteran’s diabetes mellitus was directly related to service. The VA examiner noted that the Veteran’s reported symptoms of dizziness and lightheadedness in service were unspecific and could be related to a number of non-diabetes conditions. The VA examiner also noted that the STRs did not contain the required laboratory criteria for a diabetes diagnosis. The VA examiner based her negative nexus opinion on the lengthy gap in time between the Veteran’s discharge in 1970 and the onset of diabetes in 2008. The Board finds the opinion of the examiner probative and entitled to weight as the examiner offered detailed opinions with specific references to the record and took the Veteran’s lay statements regarding the onset of his diabetes into consideration. The Board acknowledges the Veteran’s contention that the dizziness and lightheadedness he experienced in service were related to diabetes, and his reference to websites in support of his contention. While the sources cited by the Veteran may generally relate symptoms of dizziness and lightheadedness to diabetes, there is no evidence in the record specifically relating the Veteran’s in-service symptoms to diabetes. Also, while the Veteran is competent to relate his observable symptoms, there is no evidence that he is competent to opine as to the medical etiology of diabetes. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Service connection is also possible for diabetes mellitus as a chronic disease. For veteran’s who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes mellitus, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). As noted, the record establishes a diagnosis of diabetes mellitus, but there is no evidence that it manifested to a compensable degree within a year of the Veteran’s separation from service. The Board finds that the preponderance of evidence does not support a finding that the Veteran was diagnosed with diabetes mellitus within a year of discharge from service. Nor is there evidence to support service connection as a chronic disability based on continuity of symptomatology as the competent evidence of record does not reflect a history of continuous symptoms since service. 38 C.F.R. § 3.303(b); Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The lack of evidence of treatment in the record is a factor that weighs against the claim. Moreover, VA treatment records include a November 2009 note indicating that the Veteran denied diabetes. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along wither other factors concerning the veteran’s health and medical treatment during and after military service). Based on the foregoing, the Board finds that the competent medical and lay evidence is against a finding of entitlement to service connection for diabetes mellitus, type II, on a direct or presumptive basis. Accordingly, the claim for service connection for diabetes mellitus, type II is denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.