Citation Nr: A21020564
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 191126-46030
DATE: December 27, 2021

ORDER

Service connection for diabetes mellitus, type II (DM) is denied.

FINDINGS OF FACT

1. The Veteran served on active duty from April 2000 to January 2009. 

2. DM was not shown in service, did not have its onset within one year from separation from service, and it is not etiologically or causally related to service.

CONCLUSION OF LAW

The criteria for service connection for DM have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written under the AMA guidelines.

As a procedural matter, the statement of the case (SOC) on appeal was issued in November 2019. In a subsequent November 2019 Form 10182, the Veteran timely disagreed with the November 2019 rating decision and selected the Direct Review lane. Based on his selection, the Board can only consider evidence of record at the time of the rating decision on appeal. 38 C.F.R. § 19.2(d).

The Board notes that the Veteran's claim for service connection was denied in a prior rating decision. The November 2019 SOC found that new and material evidence had been received to reopen the claim. However, the applicable standard under the AMA is whether new and relevant evidence has been received sufficient to readjudicate the claims. 38 C.F.R. §§ 3.2501 (a)(1), 19.2. Given that this standard is a lower standard than the new and material evidence standard, the AOJ's finding that new and material evidence was received essentially means that the AOJ also found that new and relevant evidence has been received. This is a favorable finding by the AOJ and the Board will proceed to the address these claims on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104 (c).

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of service connection to DM, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Entitlement to service connection for DM

Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, the Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a), which includes diabetes mellitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101.

Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307.

As to the first element of service connection on any basis, the medical evidence reflects a current diagnosis of DM. In this regard, VA treatment records reflect a current diagnosis of DM in October 2010. As such, the criteria of a current disorder have been met.

As to an in-service incurrence, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of DM. An undated separation examination, clinical evaluation of the endocrine system was normal, and the Veteran denied having diabetes. Regardless, the Veteran had some elevated glucose readings during service and was diagnosed with essential hypertriglyceridemia during service. In this regard, while he was not ever diagnosed with DM during service, as this symptomatology could be therefore related, the Board will consider it sufficient to meet the second criteria of direct service connection.

Thus, the remaining question before the Board is whether there is a medical nexus between the Veteran's in-service elevated sugar readings and his current diagnosis of DM. In consideration of the available medical evidence, there is only one medical opinion which weighs against the claim.

In this regard, the Veteran was afforded a VA examination in June 2019, where the examiner found that he had a diagnosis of DM from October 2010. The examiner evaluated the Veteran and thoroughly outlined the Veteran's medical records, which were available from directly following his separation from service, as well as his STRs. The examiner then opined that it was less likely than not that the Veteran's DM began during, or was related to, service.

The examiner reasoned that the Veteran was followed for elevated glucose levels as well as hypertriglyceridemia and fatty liver during the period just before and after his separation from service. The examiner noted that the Veteran left service on January 28, 2009, and his first glucose which was drawn in the diabetic range was on October 14, 2010. He then had a second glucose lab work that reacted the official level for a diabetes diagnosis on June 8, 2011. Meanwhile, he had elevated Hgb A1C levels on May 18, 2011 and June 23, 2011. 

The examiner opined that by dates alone, the Veteran's type II DM was diagnosed more than one year after his separation from service. Additionally, the examiner noted that while the evidence was clear that he had pre-diabetes, hypertriglyceridemia and fatty liver while still on active duty, according to dates that the Veteran's DM lab work showed a diagnosis, it was less likely caused by his active duty service. 

After consideration of the totality of the evidence, service connection has not been shown on a presumptive or direct basis. In this regard, the Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Finally, and perhaps most importantly, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value.

Specifically, the Veteran was not shown to have DM during service. He explicitly denied having DM during service at every report of medical examination. Additionally, while he had slightly elevated glucose levels, they did not meet the threshold for a diagnosis of DM as was explained by the June 2019 VA examiner. Finally, the Veteran did not provide any other reason why his DM might have been caused by service other than his assertion that his DM began during service. Thus, the medical evidence does not support a theory of direct service connection.

Next, as to presumptive service connection, the medical evidence as specifically interpreted by the June 2019 VA examiner shows that the Veteran's DM was not diagnosed until more than a year after the Veteran's separation from service. In this regard, even the elevated glucose readings which were seen after service occurred in October 2010, more than a year following his separation from service. Even still, the Veteran was not formally diagnosed with DM until July 2011. 

Regardless, and even granting the Veteran the benefit of the doubt and considering his diagnosis in October 2010, the medical evidence does not show a DM diagnosis in the required one year time period. Specifically, the Veteran's medical records from his time immediately following service are of record yet fail to show any evidence of a diagnosis of DM within one year of his separation. 

Finally, there was no continuity of symptomatology shown since the Veteran did not have a formal diagnosis for over two years following service. In this regard, elevated glucose levels did not show sufficient to be a diagnosis for DM; thus, continuity of care by definition cannot be established. 

The Board has also considered the Veteran's lay statements that his disorder was caused by service or onset within one year of discharge. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved.  

Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings, to specifically include the VA examiner's conclusions as to the likely onset of the Veteran's diabetes mellitus, than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied.

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

 

G. E. Wilkerson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Yacoub, 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.