Citation Nr: 21074914 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-52 612 DATE: December 16, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. FINDING OF FACT The most probative evidence is approximately in equipoise concerning whether diabetes mellitus, type II, initially manifested during the Veteran's active duty. CONCLUSION OF LAW The criteria to establish service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1111, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1967 to December 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran expressed disagreement with this determination, and the present appeal ensued. The Veteran's appealed issue, and another, was previously before the Board in March 2019 and October 2019, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the Agency of Original Jurisdiction (AOJ) will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for diabetes mellitus, type II Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Analysis As an initial matter, the Board observes that the disease subject to the present appeal may be subject to presumptive service connection, in certain circumstances, as a chronic disease and a disease secondary to in-service exposure to an herbicide agent. Nonetheless, for the reasons recounted below, the Board concludes that the most probative evidence supports an allowance under the theory of direct service connection, and thus, the Board's analysis will focus on this theory of entitlement. Consequent to the Board's March 2019 remand, the Veteran was provided a VA examination to determine the date of initial onset and etiology of his diabetes mellitus, type II, in May 2019. After completing a review of the record and an examination of the Veteran, a VA medical professional stated in May 2019 that this disability initially manifested in 1985; however, such was less likely as not proximately due to or the result of any incident of the Veteran's active duty. The Veteran's appeal was returned to the Board who, in the October 2019 remand, noted that the May 2019 VA examiner's statements concerning the date of initial onset and etiology of the Veteran's diabetes mellitus, type II, were incongruent. Specifically, if this disease initially manifested in 1985 (i.e. prior to the Veteran's December 1985 separation from the Air Force), the medical nexus opinion was inconsistent with such a finding and was, regardless, unnecessary due to the initial onset of the disease during the Veteran's active duty. In the October 2019 remand, the Board directed that additional medical records, to include VA records, be obtained. Following this, the Veteran's file was to be sent to the same examiner who completed the May 2019 examination, or a suitable replacement if that examiner was not available. A review of the Veteran's record since the October 2019 remand contains no requests for additional medical records or communications with the Veteran regarding any missing medical records. No attempts to obtain further records are on file. In addition, a new VA opinion was provided in January 2020. After another review of the file, a different VA medical professional stated that diabetes mellitus, type II, was first diagnosed in 1986 and opined that such was less likely as not due to any incident of the Veteran's active duty. Again, the VA clinician gave no explanation for why, given the timeline of the Veteran leaving service in December 1985, that this condition was found to be unrelated to service. First, the Board concludes that the May 2019 VA examiner's opinions, while internally inconsistent, are favorable to the Veteran's appeal. Specifically, the examiner's opinion that this disease initially manifested during the Veteran's active duty is fully favorable (and dispositive) of the Veteran's appeal. Armed with this evidence, the medical nexus opinion, while unfavorable, is incongruent with the statement regarding the disease's initial onset. Simply put, the Board finds the VA examiner's opinion regarding the date of initial onset of diabetes mellitus, type II, to be adequate; however, the medical nexus opinion is inadequate. Further, the Board finds that the January 2020 VA examination is inadequate for the purpose of readjudicating the Veteran's appeal. Specifically, the VA clinician who provided the VA opinion appears to base the inadequate opinion on the concept that the evidence must show a diagnosed disability during active duty for a favorable nexus to be rendered. However, the controlling laws provide that service connection may be granted for a disease which initially manifests during active duty not whether such was actually diagnosed during the same. As such, the Board affords the January 2020 VA opinions no probative weight regarding the matter forming the crux of the Veteran's appeal. In view of above, the Board finds that the most probative evidence is at least in approximate equipoise concerning whether the Veteran's diabetes mellitus, type II, initially manifested during his active duty. In such cases, the controlling laws provide that all reasonable doubt must be conferred in the Veteran's favor, and after doing so, the Board concludes that service connection for diabetes mellitus, type II, is warranted. 38 U.S.C. § 5107(b);38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman, II 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.