Citation Nr: 21021517 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-39 168 DATE: April 13, 2021 ORDER Service connection for diabetes mellitus, type II, is denied. REMANDED Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. A compensable initial rating for hypertension is remanded. FINDING OF FACT The Veteran’s diabetes did not have its onset within one year of separation, and it was not incurred in, nor is otherwise etiologically related to, service. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1980 to January 1983, including foreign service. The Veteran did not report for a scheduled videoconference hearing in May 2019. He has not requested that the hearing be rescheduled, or provided good cause for his failure to appear. Thus, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). Service Connection The Veteran is currently pursuing direct service connection for diabetes mellitus. The Board will limit its analysis accordingly. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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). Here, the Veteran’s VA and private treatment records establish that he was diagnosed with type II diabetes mellitus in approximately 2004. He continues to require treatment for this condition. As such, the first element of direct service connection is met. As to the second element, the Veteran contends that he was first diagnosed with “borderline diabetes” during his exit examination. See May 2019 lay statement. However, the Veteran’s December 1982 exit examination is silent for such a diagnosis, as are all service treatment records (STRs) spanning his entire period of active duty. Rather, the medical evidence confirms that the Veteran was first diagnosed with diabetes in approximately 2004, more than two decades following his separation from service. In offering this finding, the Board acknowledges that a veteran is generally competent to report that which is capable of lay observation, such as physical symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran lacks the medical training and expertise to offer a competent medical diagnosis, such as diabetes. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the medical evidence simply does not support a finding that the Veteran’s diabetes had its onset during service. Notably, his STRs are entirely silent for relevant diagnoses, symptoms, or treatment for this condition, to include on the Veteran’s exit examination. As such a diagnosis is one which the Board reasonably expects to have been documented on the Veteran’s exit examination, the absence of such is compelling in this case. Moreover, the Veteran’s VA and private treatment records consistently identify 2004 as the onset of his diabetes. In this respect, the Veteran has reported that he did not seek treatment for his diabetes until 2004, when his symptoms were so severe that he believed he was having a heart attack. See May 2019 lay statement. However, in the total absence of evidence speaking to an earlier onset—to include in the Veteran’s STRs—the Board cannot reasonably conclude that the condition onset prior to 2004. Accordingly, the competent evidence does not establish the existence of an in-service incurrence, such that further inquiry into the nexus requirement is not required. See Kahana, 24 Vet. App. at 438 (VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Such a finding also precludes the need for a VA examination in this case, as the competent evidence does not indicate that the Veteran’s diabetes may be related to service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Instead, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable, and the appeal is thus denied on a direct basis. Briefly, the Board has also considered the application of presumptive service connection to this appeal. Upon a finding that the Veteran’s diabetes did not onset until 2004, more than two decades following his service separation, the appeal also fails on this basis. 38 C.F.R. § 3.307, 3.309. Of final note, 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). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to adjudication of the remaining appeals. As to the bilateral knee appeals, a VA nexus opinion was obtained in August 2013. However, this opinion is inadequate, as the examiner reported that the Veteran sought relevant in-service treatment on only one occasion. However, the examiner’s reporting does not address an October 1980 in-service motor vehicle accident (MVA), which the Veteran relates to his current knee disorders. As such, a new nexus opinion is required on this point. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As to the hypertension appeal, the Veteran last underwent VA examination for this disorder in August 2013. He has since reported a worsening of his symptoms, such that an updated examination is now warranted. See May 2019 lay statement (reporting dizziness, headaches, and blood pressure readings indicative of a worsening since the prior examination); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The matters are REMANDED for the following actions: 1. Obtain an opinion addressing the question below.  If the reviewing examiner determines that the opinion requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.         The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.    In particular, the examiner must address the following:  (a) Identify all current bilateral knee disabilities demonstrated by the Veteran. If a diagnosis of arthritis is rendered, the examiner must explicitly identify the onset of this disorder. (b) For each diagnosed disorder, is it at least as likely as not (50 percent probability or more) that it began during a period of active duty service, was caused by service, or is otherwise related to service? Here, the examiner must explicitly address the Veteran’s October 1980 motor vehicle accident and reports of continuing symptoms. In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.     A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.     2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected hypertension. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Code 7101. [CONTINUED ON NEXT PAGE] The examiner should also indicate whether the Veteran demonstrates any current disorders as secondary to his hypertension (to include disorders which are caused or aggravated thereby), including a headache disorder. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.