Citation Nr: 21077521 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-08 553 DATE: December 30, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II is granted. Entitlement to service connection for restless leg syndrome (RLS) is dismissed. INTRODUCTION The Veteran had active service from June 1988 to July 1995 and July 2000 to February 2013. In December 2021, the Veteran attended a hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. The most probative evidence establishes the Veteran's diabetes mellitus manifest within one year of his discharge from active service. 2. In December 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal for entitlement to service connection for RLS. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for withdrawal of the appeal for entitlement to service connection for RLS have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Board is granting the Veteran's service connection claim, any error committed with respect to that claim is harmless. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. General Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran served for at least 90 days after December 31, 1946, and manifests diabetes mellitus to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases, such as diabetes mellitus, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Factual Background and Analysis The Veteran initiated a claim for service connection for diabetes mellitus in February 2016. A review of his service treatment records indicates he experienced an impaired fasting glucose during his period of active service from July 2000 to February 2013. Following this period of active duty the Veteran was diagnosed with diabetes mellitus and prescribed Metformin and Insulin in November 2013. By way of the May 2016 rating decision on appeal, the RO concluded the Veteran did not warrant service connection for diabetes because his service from July 2000 to February 2013 was not considered title 10 full-time duty under the United States Code. As such, the RO determined presumptive service connection was not warranted in this case. In this respect, the RO concluded the Veteran's service from July 2000 to February 2013 was merely active duty for training (ADT). Assuming arguendo the RO was correct in this assertion, the Board notes that pursuant to 38 C.F.R. § 3.6 (a), "active duty" includes active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty. In this regard, the Board also observes the RO has granted service connection for both gastroesophageal reflux disease and a right knee disability, which were deemed to have been incurred in the line of duty during the Veteran's July 2000 to February 2013 service. As such, that period of service is considered active duty service, as the Veteran was shown to have incurred diseases and injuries in the line of duty. As noted above, presumptive service connection is warranted for diabetes when a veteran serves for at least 90 days of active service, and the disease manifests to a degree of 10 percent within one year from the date of termination of such service. Since the Veteran was diagnosed with diabetes mellitus, type II, and prescribed medication for the disease within one year of his period of active service, service connection is warranted for the disability. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204 (b). During his December 2021 hearing, the Veteran indicated he wished to withdraw his pending appeal for entitlement to service connection for RLS. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran's appeal, and that issue must be dismissed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.