Citation Nr: 21030685 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-36 616 DATE: May 19, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II is denied. FINDING OF FACT The Veteran's diabetes mellitus, type II condition is not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II are not met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to September 1979. In addition, the Veteran served in the Army Reserves between 1979 and 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2012 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is in the Veteran's file. In April 2018, the Board remanded the issue on the title page, in addition to issues noted below, for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently, in a March 2021 rating decision, the RO granted service connection for bilateral hearing loss, for tinnitus, for residuals of frost bite of the hands, and for residuals of frost bite of the feet. These claims had also been previously remanded in the April 2018 Board remand. As the Veteran has not appealed either the evaluation or effective date assigned to these disabilities, these claims are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(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 or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and a chronic disease, such as diabetes mellitus, type II is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Compensation is payable (service-connection is warranted) for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § §§ 1110, 1131. Active military, naval, or air service includes any period of ACDUTRA during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). By way of background, the Veteran's claims file shows that he had a period of active duty service from September 1976 to September 1979. The Veteran also served in the Army Reserves from 1979 to 2006. In the Veteran's October 2014 Substantive Appeal, he noted that he was released from the Reserves due to his diabetes mellitus, type II condition. During his April 2017 Board hearing, the Veteran stated that his wife noticed him losing weight. The Veteran stated that he was diagnosed with diabetes during his "Reserve time, while on active duty." In its April 2018 remand, the Board noted that the Veteran claimed that his diabetes mellitus was incurred in or aggravated by his periods of ACDUTRA and inactive duty INACDUTRA. The RO was requested to verify all ACDUTRA and/or INACDUTRA dates. A review of the record shows that the query returned no results for additional service dates for the Veteran. The Veteran was informed of the determination by VA in a March 2021 correspondence. Thus, the only period of active duty service is from September 1976 to September 1979. Service treatment records are silent for any complaints or treatment for diabetes mellitus. A medical record, dated in January 2001 during the Veteran's Reserve service, and more than one year following separation from active duty service, shows that a diagnosis of diabetes mellitus, type II was provided. Subsequent VA medical records show continuous treatment for the condition, to include the use of insulin. The Veteran was afforded a VA diabetes mellitus examination in November 2019. A diagnosis of diabetes mellitus, type II was provided. It was noted that the Veteran's condition was managed by restricted diet, prescribed oral hypoglycemic agent(s) and that he used more than 1 insulin injection per day. The Veteran also regulated his activities due to risk of hypoglycemia. It was also noted that the Veteran visited a diabetic care provider for ketoacidosis and a diabetic care provider for hypoglycemia less than 2 times per month, each. No episodes of hospitalizations for ketoacidosis or hypoglycemia reactions and no loss of strength and weight were indicated. No complications or physical findings due to the Veteran's diabetes mellitus were found. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that the Veteran's records showed that he had been diagnosed and treated for diabetes from 2001 and that the Veteran had stated that his diabetes was diagnosed in the 2001 to 2002 range. The VA examiner also stated that there were no records or history that the diabetes was aggravated beyond its natural course. It was noted that the only active duty period was from 1976 to 1979 and that there were no records or reasoning that the training aggravated the Veteran's condition. The VA examiner noted that the Veteran had stated that he was forced to retire from the National Guard in 2006 due to unspecified "medical condition." The VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. After a review of the evidence of record, the Board finds that the claimed disability of diabetes mellitus, type II is not related to service. As noted above, service-connection is warranted for a disability resulting from a disease or injury incurred in or aggravated by active service. The record contains no competent opinion linking the Veteran's claimed diabetes mellitus, type II condition to his active duty period. There is no evidence of the disability in service, and the VA examination report concurs that there is no nexus between the Veteran's current condition and any injury in service. The November 2019 VA opinion was provided based upon a comprehensive review of the claims file and examination of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no medical opinion to the contrary; the only evidence to the contrary comes from the Veteran. Further, as there is no confirmation of any periods of ACDUTRA or INACDUTRA, before or after his confirmed active duty service period, the greater weight of the evidence is against finding that the Veteran incurred disease or injury during such a period of service that is related to, aggravated or caused his current diabetes. In addition, the Veteran's diabetes mellitus, type II was diagnosed well beyond the one-year presumptive period for chronic diseases following separation from service under 38 C.F.R. §§ 3.307 and 3.309. As such, a presumptive service connection for diabetes mellitus, type II as a chronic disease is not established. The Board notes the Veteran's assertions that his disability is due to his service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran's complaints as to his symptoms are certainly capable of lay observation. However, the Board finds that the cause of the disability is not capable of lay observation. As such, the Veteran's lay testimony is afforded minimal weight in the analysis of whether service connection is warranted on a direct basis. The claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A-L Evans, 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.