Citation Nr: 21010874 Decision Date: 02/26/21 Archive Date: 02/25/21 DOCKET NO. 15-14 674 DATE: February 26, 2021 ORDER Entitlement to service connection for diabetes mellitus, including due to exposure to jet engine fuel, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s diabetes mellitus began during his active military service, within a year of his discharge, or is otherwise related or attributable to his service – including to exposure to jet engine fuel. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for diabetes mellitus, including as the result of exposure to jet engine fuel. 38 U.S.C. §§ 1101 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to February 1998. This claim was before the Board of Veterans' Appeals (Board) in February 2019 and remanded back to the Agency of Original Jurisdiction (AOJ) for further development and consideration – including to obtain any outstanding VA and/or private treatment records pertinent to this claim and so the Veteran could undergo a VA examination for a medical opinion concerning the etiology of his diabetes, particularly in terms of whether related or attributable to his service and to exposure to jet engine fuel, especially. The AOJ completed those requested actions, including scheduling the examination for the needed medical nexus opinion, although the Veteran cancelled the examination. Thus, there was compliance, certainly the acceptable substantial compliance, with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In November 2019, the Veteran notified the AOJ that he was withdrawing his appeal of this claim (perhaps why he cancelled his examination) – which ordinarily would require summary dismissal of his appeal of this claim, but that request was not submitted in writing and a brief more recently was submitted in support of the claim in February 2021. Entitlement to service connection for diabetes mellitus, including due to exposure to jet engine fuel Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran primarily attributes his diabetes mellitus (DM) to exposure to jet engine fuel, specifically JP-5, while a Navy aviation structural mechanic in service. The evidence of record establishes the Veteran has Type I DM. The evidence of record also establishes that he likely was exposed to jet engine fuel as well as other chemicals while in service given his military occupational specialty (MOS). But, as importantly, it is not also shown that his Type I DM is the result or consequence of that activity in service, so his claim ultimately must be denied. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and a disease or an injury incurred in or aggravated by service”).   It is initially worth pointing out that the Veteran’s service treatment records (STRs) and even his medical treatment records for several years after conclusion of his service, up to April 2004 are thereabouts, are entirely unremarkable for a diagnosis or other probative indication he had diabetes or even complaints possibly related to this disease. Further, there are no medical examinations, opinions, or etiological findings on file to support a causal connection or attribution of his eventual diagnosis of DM to anything that occurred during his time in service, including to exposure to chemicals such as in jet engine fuel. The record on appeal contains multiple instances in which he asserted his DM was caused by exposure to JP-5 jet engine fuel, but no medical providers on record indicate the same or affirm this posited correlation. In support of his claim, the Veteran submitted a copy of a Board remand from November 2006 with what he asserts is a similar factual basis – namely, a different claimant also alleging entitlement to service connection for DM that he also contended was caused by fuel exposure. A remand, however, is not an actual decision on a claim, rather, merely a directive to do some additional development of the claim before deciding it on appeal. Moreover, even prior Board decisions are not precedential and do not establish VA policies or interpretations of general applicability. See 38 C.F.R. § 20.1303. Also, notably, the November 2006 decision cited merely remands a similar fact pattern without making any evidentiary findings to support the claim. In essence, then, even if the Board took the November 2006 decision as favorable evidence, it does not contain information supporting the Veteran’s claim currently at issue. As such, that remand order is not probative to the claim at hand. The Veteran also submitted an August 1998 U.S. Department of Health and Human Services article describing demonstrated health concerns after exposure to JP-5 jet engine fuel. Notably, this article did not find any connection between exposure to JP-5 and endocrine conditions, such as his DM. The Board realizes that a medical article or treatise evidence can support a claim; however, this is only the case where the article is combined with an opinion from a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). There is no such medical opinion or other attribution on record here. As such, the medical article cited also is insufficient to establish the required causal nexus between the Veteran’s DM and his exposure to jet engine fuel in service. In sum, the only evidence supporting attribution of the Veteran’s DM to his active duty service are his personal statements. But, as already explained, while lay evidence may be competent to establish observable symptoms or to support a diagnosis, competent medical evidence is necessary when, as here, the condition at issue is complex, not just simple, the determinative question of causation consequently requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) and (a)(2). Unfortunately, the Veteran has not been shown to possess any pertinent medical training or credentials that would make him competent to diagnose his DM as secondary to chemical exposures. He is not competent to make that determination and, therefore, the required nexus is not established. Id. In making this finding, the Board acknowledges the Veteran has not undergone a VA examination regarding this condition for a medical nexus opinion on this determinative issue of causation. Also keep in mind, however, as already alluded to, the AOJ scheduled this needed examination, but he cancelled it within several days of issuing his request to withdraw this claim. He has not requested another examination or asked to have it rescheduled. The VA’s duty to assist him in fully developing his claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is incumbent on him to cooperate with VA in developing his claim. A pertinent VA regulation, 38 C.F.R. § 3.655, expressly directs the Board to decide a claim based on the available evidence already of record if the Veteran fails to report for an examination scheduled in response to a claim of entitlement to service connection and directs the Board to summarily deny an increased-rating claim when this happens. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); Olson v. Principi, 3 Vet. App. 480, 482-83 (1992); Turk v. Peake, 21 Vet. App. 565, 568 (2008) (also noting that the Veteran has a duty to cooperate in VA's development of his claim).   Generally, VA must provide – and the Board will order if necessary – a medical examination for a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Regarding the third factor, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence suggesting a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id., 20 Vet. App. 79. The Federal Circuit Court has addressed the appropriate standard to be applied in determining whether an examination is warranted. The Federal Circuit Court has held that, while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). On the other hand, however, a mere conclusory generalized lay statement suggesting a nexus between a current disability and service (or a service-connected disability) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming entitlement to service connection so merely as a matter of course. Waters, 601 F.3d at 1278-1279.   So, in conclusion, while the evidence in this case clearly establishes a diagnosis, the only evidence suggesting a nexus is precisely the generalized lay statements the Veteran has provided. Thus, as the preponderance of the evidence is against this claim of entitlement to service connection for DM, including due to exposure to JP-5 jet engine fuel, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.