Citation Nr: 21012046 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-15 323 DATE: March 3, 2021 ISSUE Entitlement to service connection for diabetes mellitus, type II. ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT The Veteran’s diabetes mellitus, type II, which was not diagnosed until many years after service, is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Air Force from March 1985 to September 1992 and the Navy from September 1992 to August 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran claimed entitlement to service connection for diabetes mellitus, type II in July 2014. His claim was subsequently denied in October 2014, and the Veteran filed a timely Notice of Disagreement (NOD) in February 2015. He was issued a statement of the case in March 2015, and in May 2015 he filed a VA Form 9, appealing his claim to the Board. The Veteran requested a Board Hearing before a Veterans Law Judge, and in May 2015 the Veteran’s claim was certified to the Board. In July 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. Following that hearing, the Veteran’s claim was remanded by the Board in October 2019, and more recently in October 2020 for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for diabetes mellitus, type II. The Veteran has argued that his diabetes mellitus is due to his military service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303. Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include diabetes mellitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For diabetes mellitus, type II, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). Service connection for diabetes mellitus can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the available evidence, in an April 2019 Informal Hearing Presentation, the Veteran’s Representative argued that the Veteran had “impaired fasting glucose while on active duty,” and that the Veteran was self-medicating his diabetes through diet and exercise. The Veteran testified in July 2019 that “a couple years before I got out [of service] I noticed that my fasting blood sugar was going up.” He testified that he rejected the medication at the time, because “there was still quite a bit of room to do exercise and diet. So, until I got out, my fasting blood sugar was still kind of high but I never was put on medications.” He further testified that no doctor has stated that his diabetes was due to service, since “I don’t think I’ve asked that question to anybody.” Finally, the Veteran stated that he noticed some symptoms of diabetes while in service, including increased “frequency of urination, maybe some thirst,” however to the best of his knowledge, diabetes was not diagnosed until approximately six years following his separation from service. The Veteran also submitted a statement from January 2015, in which he writes that prior to his “exit physical exam on May 2005, a number of abnormal fasting glucose [levels] … have been recorded suggesting abnormal levels compatible with the diagnosis of pre-diabetes.” He further wrote that “if further studies [were] done prior to my separation … I [would] be diagnosed and treated as having Type 2 diabetes.” The Board is also reminded, as determined by the previous October 2019 Board remand, that the Veteran’s military personnel records indicate that he worked in emergency services, and that he testified to working as an EMT, and then as a nurse. The Veteran has extensive experience in the medical field, which spans the duration of his two-decade military career, across both the Navy and the Air Force. The Board therefore considers the Veteran an experienced medical professional, and he is also competent to report that which he has experienced, including his symptoms during service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran’s claims file includes medical evidence indicating that he was first diagnosed with diabetes in April 2011, approximately six years after separation. Furthermore, VAMC and CAPRI records have noted that the Veteran has a current diagnosis of diabetes mellitus, type II, and this was most recently confirmed in a VA examination from November 2020. As such, he has met the first criteria for entitlement to service connection. 38 C.F.R. § § 3.303. As stated above, the Veteran has also indicated that he experienced symptoms while on active duty that are related to diabetes, to include increased “frequency in urination, [and] maybe some thirst.” Considering that the Veteran has been found competent to report on those symptoms he experienced, the Board finds that the second criteria has also been met. 38 C.F.R. § § 3.303. Turning to the final criteria, the Board is reminded that in the previous October 2020 Board Decision, a February 2020 VA examination was found inadequate. This was mainly because the report provided did not mention the Veteran’s medical expertise across his active duty service. Barr v. Nicholson, 21 Vet. App. 303 (2007). As a result, the Veteran’s claim was remanded for a VA addendum opinion, which addresses his claim of entitlement to service connection. That VA addendum opinion was provided in November 2020. The examiner indicated that the Veteran’s claims file was reviewed, and it is clear from the discussion provided that the Veteran’s lay statements were taken into account. The examiner also noted the Veteran’s in-service medical expertise, noting that he “was an [emergency medical technician] and then a nurse.” The examiner noted previous medical records, including the fact that the Veteran was diagnosed with diabetes in April 2011. They also noted fasting glucose levels from when the Veteran separated from active duty, until he was officially diagnosed. They then opined that the Veteran’s diabetes mellitus is less likely than not proximately due to or caused by his active duty service. The following rationale was provided: I reviewed the above labs and other labs during military service, as well as treatment records during military service and see no evidence that the Veteran had diabetes mellitus during military service. Provided records indicate reported family history of diabetes – mother and 2 brothers. Service records indicate episodic subjective symptoms and concern for pre-diabetes. However, pre-diabetes is not diabetes. Multiple testing showed no diabetes, no diagnosis of diabetes, the criteria was never shown. He was not diabetic in the service. Service records show Veteran had access to medical care and did have medical care. Post service records show Veteran had access to medical care and did have medical care. He was not diagnosed with diabetes until more than 6 years post military service. As such, a negative etiological opinion was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also reviewed the Veteran’s VAMC and CAPRI records, which have been associated with the claims file. There are no further opinions, positive or negative, which address the etiology of the Veteran’s diabetes mellitus, except for that from February 2020, to which the Board has found to be inadequate. In consideration of the above, the Board finds that the evidence of record is against a finding that the Veteran’s type II diabetes mellitus occurred in, or is the result of, his period of active duty service. To begin, the Veteran has provided competent statements and testimony which indicate some diabetic symptoms occurred while the Veteran was on active duty service. This includes increased urinary frequency and “maybe some thirst.” The Board also notes that the Veteran’s testimony has been provided additional probative weight, given his active duty medical expertise as an EMT and then as a nurse. Having said that, the Board has also received a VA examination from November 2020, to which significant probative weight has been attached. That examination considered the Veteran’s statements, as well as his in-service medical expertise. The opinion cited multiple years of fasting glucose levels, from the Veteran’s separation from service to his diagnosis of diabetes mellitus six years later. The examiner acknowledged the Veteran’s claims of pre-diabetic indicators, however they noted that “pre-diabetes is not diabetes,” and instead likened the Veteran’s diagnosis to his family history of diabetes mellitus. Finally, the Board recognizes that the Veteran stated that if further studies had been done prior to his separation, than he would have been diagnosed. Despite that argument, the Board has confirmed the findings made by the November 2020 VA examiner, which noted that further studies were done following the Veteran’s separation, yet he was not diagnosed with diabetes until approximately six years later. This conclusion is consistent with established VA case law, which recognizes that the passage of many years between discharge and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxon v. Grober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, the evidence of record is against a finding that the Veteran’s type II diabetes mellitus occurred in, or is the result of, his period of active duty service. As such, the Board finds that the Veteran’s has not met the third criteria for entitlement to service connection. 38 C.F.R. §§ 3.303. With respect to service connection on a presumptive basis, there is no indication that diabetes mellitus was diagnosed in service, nor was it diagnosed within the year following service. In fact, and as noted above, the first evidence of diabetes mellitus within the Veteran’s claims file is approximately six years after the Veteran was separated from active duty. Likewise, continuity of symptomatology can also therefore not be established. As such, the Veteran has not met the third and final criteria for entitlement to service connection under the presumptive theory. 38 C.F.R. §§ 3.303, 3.307, 3.309. For the foregoing reasons, the Board concludes that the claim of entitlement to service connection for diabetes mellitus, type II, must be denied. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.