Citation Nr: 18160631
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 10-38 747
DATE:	December 28, 2018
ORDER
Service connection for diabetes mellitus (DM) is denied.
FINDINGS OF FACT
1. The Veteran had active duty service from March to September 1980, in addition to service in the National Guard from February 1980 to December 1983 and from October 1987 to July 2007, to include periods of active duty for training (ACDUTRA).
2. DM, diagnosed in 1997, was not shown in service, is not causally or etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability.
3. The Veteran did not serve a period of ACDUTRA for a continuous period of ninety days or more as a member of the National Guard.
4. DM was not shown to have worsened or aggravated beyond its natural progress during a period of ACDUTRA.

CONCLUSION OF LAW
DM was not incurred in or aggravated by service or during a period of ACDUTRA.  38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Historically, in March 2014, the Board credited the Veteran with the following periods of ACDUTRA: April 13-27, 2002, August 2-7, 2003, May 29-June 12, 2004, August 6-September 7, 2004, April 2-16, 2005, and June 3-24, 2006. The Board remanded DM for an examination to obtain a medical nexus opinion. 
The April 2014 VA examination concluded that DM was not service connected as there were no records evidencing a diagnosis prior to 1997. However, six months after the remanded examination, the Veteran’s private physician submitted an opinion supporting service connection for DM with a likely onset in 1997, basing this conclusion on a review of the service treatment records (STRs), chart records, and laboratory findings. In June 2016, the Board again remanded the appeal for an addendum opinion to the 2014 VA examination to address evidence of the Veteran’s documented, twenty-year history of treatment for DM. 
In a March 2017 addendum opinion, the examiner concluded the Veteran was initially diagnosed with DM in 1997 but that there was no evidence of aggravation of beyond its natural progression during a period of ACDUTRA.  Similarly, a June 2017 addendum supported the 1997 diagnosis date but noted that the Veteran’s laboratory work during her initial period of active duty service did not support a DM diagnosis. Further, there was no documentation of aggravation of her disability beyond its expected natural progression. 
Based on the June 2017 medical opinion, the Board denied service connection for DM in November 2017. The Veteran appealed that decision to the Veterans Claims Court. In August 2018, the Court Clerk granted a joint motion for partial remand (JMR), vacated the November 2017 Board decision, and remanded the matter to the Board for action consistent with the terms of JMR. The case is now before the Board for adjudication.
A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment.  38 U.S.C. § 1111.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b).
Pursuant to 38 U.S.C. § 1111, and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held:
When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition.  38 U.S.C. § 1153.  
If this burden is met, then the veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection.  This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded.  See 38 C.F.R. § 3.322; Wagner, 370 F.3d at 1096.  
Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).
In precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA’s General Counsel reasoned that § 3.306(b) properly implemented 38 U.S.C. § 1153, which provided that a preexisting injury or disease would be presumed to have been aggravated in service in cases where there was an increase in disability during service; however, the requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and did not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111.  38 U.S.C. § 1111, as in this case, requires VA to bear the burden of showing the absence of aggravation.
The record supports a finding that the Veteran was presumed sound upon initial entry into active duty service in March 1980. As noted in her VA examinations, there was no evidence of a DM diagnosis or glucose in her urine despite trace amounts of albumin in March 1979 pre-service treatment records.  During her November 1979 induction examination, the examiner did not reference a DM diagnosis despite the Veteran’s self-reporting it.  
The Veteran’s March 1980 medical records similarly reflected self-reports of DM controlled by diet instead of medication, and that she had glucose readings within the normal range.  She continued reporting her DM was controlled by diet when testing negative for glucose in July 1980 during her REFRAD medical examination.  A July 1982 laboratory result also provided evidence that she maintained normal blood glucose levels two years later.  
For these reasons, the Veteran was presumed sound upon entry to active duty service and the burden shifts to the VA to establish by clear and unmistakable evidence that the Veteran’s disability was not aggravated during periods of ACDUTRA as a National Guard member. 
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). 
Service connection may be granted on a presumptive basis for diseases listed in § 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.
Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310.  Allen v. Brown, 7 Vet. App. 439 (1995).  In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty.  38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). 
ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State.  38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1).  
Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131.  Only “veterans” are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131.  See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).  To establish status as a “veteran” a claimant must serve on active duty, serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).  
However, for those who have achieved “veteran” status through a prior period of service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.”  Smith, 24 Vet. App. at 40.  
While the Veteran may have served periods of INACDUTRA, DM cannot be based on a period of INACDUTRA, as this is a disease, not an injury. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a). As such, only periods of ACDUTRA will be discussed for the purposes of this appeal. In addition, the VA examiners and the Veteran’s private physician agree that she was diagnosed with DM no earlier than 1997.  Because there is no medical evidence of a diagnosis until 1997, her disability is only reviewed for the purposes of this appeal during periods of ACDUTRA as a National Guard member.
As a current diagnosis of DM has been shown, the next question is whether DM was aggravated during a period of ACDUTRA. On this point, the private medical opinion only speaks to an incurrence of DM in 1997; therefore, the question is whether the Veteran had a corresponding period of ACDUTRA during this year.  
The record contains a certificate of service between August 9-23, 1997, without federal directed orders. See 10 U.S.C. §§ 12301(d), 12401; 38 U.S.C. §§ 101(21)(E), (22)(C). Even assuming a period of ACDUTRA in 1997, the question is whether there was a worsening of her disorder at that time.  
The Veteran’s private physician opined in October 2014 that DM very likely had its onset in service approximately in 1997. This physician, who began treating her in August 1998, cited to non-specific chart records and laboratory findings while relaying that she was placed on insulin the day of the 2014 medical opinion.  There is no additional medical evidence from the private examiner’s predecessor associated with the file to provide a baseline from which to establish that her symptoms worsened in 1997.   
In contrast, the June 2017 VA examiner, who had the benefit of reviewing the 2014 private physician opinion (and the prior VA medical opinions) cited specific treatment records and laboratory results associated with the file to conclude there was no documentation of aggravation beyond the expected natural progression. 
Despite the private examiner’s familiarity with the Veteran, having treated her for many years, lower probative weight is assigned to this one-page medical opinion for lack of discussion of specific laboratory results and treatment records from 1997 (or other periods of ACDUTRA) evidencing aggravation beyond the expected natural progression of DM. It is unclear what records and data led the private physician to conclude that her disability had its onset during a period of ACDUTRA.  
The June 2017 VA medical opinion is accorded the more probative weight because its conclusion was based on detailed information including the Veteran’s statements and symptoms, multiple laboratory results, and treatment records over an extended period. The Board also considered the September 1997 letter from the State Medical Duty Review Board reporting that the Veteran was fully fit for continued duty with limitations. However, the conclusory nature of the letter provided no assistance with determining whether the two remaining elements of direct service connection were met. As a result, it had little probative value.   
With the Veteran’s 1997 DM diagnosis established, the Board next considers medical evidence of the second element, in-service aggravation or worsening of symptoms during documented periods of ACDUTRA between 2002 and 2006.   She did not submit an updated, private medical opinion but there are medical and military personnel records overlapping with some periods of ACDUTRA.  
The Veteran was active duty from April 13-27, 2002.  The record supports that she controlled her DM with a restricted diet and medication, monitored her blood sugar with finger sticking, and that her urine was negative for both albumin and sugar in January 2002.  She was active duty from August 2-7, 2003, and deemed fit for duty both in August and November of the same year.  In February 2003, she had a glucose reading of 115 with no proteinuria found in her urine and another glucose reading of 79 with a hemoglobin A1c (A1c) of 10.3 in August.   
She was active duty from May 29-June 12, 2004 and again from August 6-September 7, 2004. Per her April 2004 Report of Medical History, her disability was controlled by diet and exercise with no reference to taking medication.  In July 2004, she had a glucose reading of 142 and an A1c reading of 9.1 the following month. Numerous medical records documenting an August 2004 emergency room visit appeared related to viral gastritis and high blood pressure.  In December 2004, she also sustained multiple musculoskeletal injuries while involved in a serious motor vehicle accident (MVA).  The combination of her DM disability and the MVA injuries would result in permanent profile status in both 2005 and 2006.  
The Veteran was next active duty from April 2-16, 2005. In May 2005, she had a two-day period of disability due to her spinal condition, and a glucose level of 309 with an A1c of 13.2.  In June, she was initially found unfit for duty pending further evaluation by her orthopedist.  Five months later, she was found fully fit and placed on permanent profile because of both DM and multiple herniated discs from the MVA.  She had her final period of ACDUTRA from June 3-24, 2006. 
In March 2006, she was again placed on permanent profile, had a normal glucose – 6-Phosphate reading of 9.6, and reported not taking medication. A month later, she was recommended for medical retirement in a finding referencing both her DM and a March 2016 physician’s letter detailing physical limitations caused by her MVA-related, musculoskeletal injuries. In September 2006, she had a glucose level of 198 with an A1c level of 10.5.
The 2017 VA examiner concluded there was no medical evidence of in-service worsening and aggravation of the Veteran’s disability despite review of records during this time-period.  She has not provided any new evidence to contradict these findings and the private medical examiner confirms that she was not prescribed insulin until October 2014.  
There is no consistent pattern to her long-time struggle with DM. Her disability appeared well controlled in 2002. Despite an initial high glucose reading in February 2003, it was within therapeutic limits later that year. Her emergency room visits in 2004 were not due to complications with DM.  However, the multiple injuries she sustained because of the 2004 MVA appear to be basis of the increasing physical limitations placed on her National Guard duties, rather than an aggravation of DM. 
Despite elevated laboratory results in May 2005, her initial unfit finding the following month was because more information was needed from her orthopedic surgeon. In November 2005, she was then deemed fit with modified duty attributed to both DM and the MVA related injuries.  Consequently, the evidence does not support that DM was aggravated by periods of ACDUTRA from 2002-2006.
Next, the Board will consider the Veteran’s entitlement to presumptive service connection for DM as a chronic disease due to periods of ACDUTRA.  DM is a chronic disease therefore presumptive service connection applies but the evidence of record does not support that she meets the criteria for this theory of entitlement.   
As previously established, the Veteran served on active duty from March to September 1980. She is also currently service connected for three disabilities. However, the record lacks evidence that she served 90 days of continuous, active service or more during a period of ACDUTRA. Therefore, consideration of presumptive service connection for her disability is not warranted. 38 §§ C.F.R. 3.307(a), 3.309(a); see also Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  
The Board has considered the Veteran’s lay statements that DM was incurred during service or was aggravated by her periods of ACDUTRA. While she is competent to report symptoms, as this requires only personal knowledge as it comes to her through her senses, Layno v. Brown, 6 Vet. App. 465, 469 (1994), she is not competent to offer an opinion as to the etiology of her current disorder due to the medical complexity of the matters involved.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462.  
As a result, the preponderance of the evidence is against the claim and the appeal is denied. 
 
L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Hamilton, Associate Counsel 

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