Citation Nr: 21062180
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 16-06 771
DATE: October 6, 2021

ORDER

Entitlement to service connection for type II diabetes mellitus (DM2) is denied.

FINDING OF FACT

The weight of the evidence of record is against a finding that DM2 had onset in active service or is otherwise causally connected to active service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for DM2 have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from June 1989 to June 2004.

The Veteran perfected an appeal from an August 2012 rating decision. See 08/13/2012 Rating Decision  Codesheet. The August 2012 rating decision also denied service connection for erectile dysfunction (ED), which the Veteran also appealed. See 06/27/2013 NOD. In a January 2016 rating decision, the Agency of Original Jurisdiction granted service connection for ED and special monthly compensation for loss of a creative organ. See 01/06/2016 Rating Decision. There is no indication that the Veteran appealed either the assigned effective date or the initial rating. Hence, the ED issue is not currently before the Board and will not be discussed in the decision below. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

The Veteran indicated on his Substantive Appeal that he desired a Board hearing via video conference. See 02/13/2016 VA Form 9. In a July 2020 statement, the Veteran informed the AOJ that he canceled the hearing. See 07/125/2020 VA 21-4138. Hence, his hearing request is deemed to have been withdrawn. See 38 C.F.R. § 20.704(e).

Entitlement to service connection for DM2 is denied.

General Legal Requirements

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

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, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). DM2 is among the noted chronic diseases.

In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102.

Discussion

The Veteran is currently diagnosed with DM2, Hence, the first requirement for service connection is met, a currently diagnosed disease or disorder. Per his VA outpatient records, he was diagnosed with DM2 in 2010. See 07/07/2011 Medical Treatment-Government Facility, P. 13. The Veteran cites elevated glucose levels noted in his service treatment records (STRs) to support his assertions that his DM2 had onset in active service. See 06/27/2013 NOD.

Documentation in the STRs notes that during his medical processing for retirement in January 2004, the Veteran's glucose was elevated at 109, a positive family history for the disease was noted, and a repeat test was directed. See 01/15/2004 STR-MED, 3rd Entry, P. 9, 53, 72. The Report of Medical Examination for Retirement noted the findings related to the Veteran's glucose level but otherwise noted that his urinalysis was negative for sugar, and his endocrine system was assessed as normal. Id. P. 9-10. In February 2004 his glucose was noted as upper normal at 100; his positive family history was again noted as was an entry that he met newly diagnosed pre-diabetic criteria; and, he was counseled on lifestyle changes designed to delay or prevent onset of DM2. Id. P. 59. 

A VA examination report (12/08/2014 C&P Exam, 1st Entry) reflects that a VA examiner took and recorded the Veteran's lay reported history and conducted a review of the claims file. The examiner noted that his review of the Veteran's medical records reflected that he was diagnosed with DM2 in 2010. Based on his review of the claims file and the examination, the examiner opined that it is not at least as likely as not that the Veteran's DM2 had onset in active service. The examiner noted that the in-service blood sugar levels in 2004 were only marginally elevated, and that readings of 109 to 117 were higher in 2008 and 2009, and that the medical evidence was not sufficient for a diagnosis of SM2 until 2010. As a result, the examiner opined that the two slightly elevated readings in active service were not sufficient to be causally connected to the diagnosis in 2010, especially considering normal readings in between. Id. P. 7.

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The Veteran asserts that he had no control over his diet while he was serving in Southwest Asia, and that he was told he could not file a claim for pre-DM2. See 10/17/2013 Correspondence. While the Veteran may be correct as concerns the circumstances of his service in SWA, those conditions would not have applied after his separation from active service in June 2004, some 6 years prior to his diagnosis. In a statement submitted with his VA Form 9, the Veteran asserted that a glucose reading in December 2007 of 144 should have triggered an A1C test. See 02/13/2016 VA Form 9, P. 4. See 01/18/2008 Government Facility. The Board also notes that a non-VA record notes a December 2007 glucose reading of 99, where the normal range was 74-106. See 03/14/2008 Non-Government Facility. In any event, it is not for the Board to determine what tests medical authorities may have deemed indicated. Further, December 2007 was more than 3 years after the Veteran's separation from active service. The Veteran's VA outpatient records dated in June 2005 note that he was not diabetic. See 07/11/2005 Government Facility, P. 4.

Base on the above, the Board is constrained to find that the preponderance of the evidence of record shows that the Veteran's DM2 did not manifest in active service or at least to a compensable degree within one year of separation from active service. Hence, the claim must be denied on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). Since the preponderance of the evidence is against the claim. There is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.