Citation Nr: 1723780 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 12-19 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Navy from August 2005 to April 2006 and from June 2009 to June 2010 with additional time served in a reserve unit. He was awarded a Navy "E" Ribbon and a Global War on Terrorism Expeditionary Medal, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office. FINDING OF FACT The probative, competent evidence is against a finding that the Veteran's diabetes mellitus, which existed prior to service, was aggravated by service. CONCLUSION OF LAW Diabetes mellitus clearly and unmistakably preexisted service and was not aggravated therein. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran asserts that he has diabetes mellitus that is related to his active duty service. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or permanently aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2016). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted at entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2014). To rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, 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. Wagner v. Principi, 370 F.3d. 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). In this case, the Veteran was provisionally diagnosed with diabetes mellitus at a VA hospital in November 2007, which is in between his two active duty service periods. However, his diabetes mellitus was not noted in his pre-deployment assessment for his second service period or elsewhere in his treatment records beginning in June 2009. He specifically denied having any diabetes symptoms to include high or low blood sugar, numbness or tingling in the extremities, or dizziness or fainting spells. The Veteran asserted in the pre-deployment assessment that he had presbyopia and myopia requiring contact lenses, eczema, and a face injury, but he did not mention his diabetes diagnosis or anything pertaining to diabetes treatment. A physician declined to refer him elsewhere for treatment, and he was determined to be deployable in May 2009. The Board notes that the Veteran was diagnosed with diabetes mellitus at a VA hospital in November 2007. In light of the above, the Board finds that clear and unmistakable evidence shows that the Veteran's diabetes mellitus preexisted active duty service. Hence, the only remaining question with regard to the presumption of soundness is whether clear and unmistakable evidence indicates that the preexisting disorder was not aggravated by service. In this instance, the Veteran has never contended that his diabetes mellitus worsened during service. He never sought treatment for diabetes mellitus or symptoms of diabetes mellitus during service. The Board notes that the Veteran's representative has contended that some of the service treatment records are missing, but the Board finds that the Veteran's treatment records from 2009 and 2010 are in the file, to include pre-deployment and post-deployment assessments in 2009 and 2010. In the Veteran's post-deployment assessment he asserted that he had a bilateral knee injury, a low back injury, and a rash on the shoulders; the Veteran also described having bladder infections, a left thumb injury, and a staph infection in the right calf. However, diabetes mellitus was not mentioned, nor were any symptoms of diabetes mellitus mentioned in that assessment or elsewhere in the treatment records. The Board finds this is indicative that the Veteran sought treatment during his second period of service from 2009 to 2010, but that none of his treatment was for diabetes mellitus. Here, although the Veteran is competent to testify to his observations, he has not provided "satisfactory lay or other evidence" of in-service aggravation. In this case, the Veteran has provided no allegation of worsening, and there is no medical evidence of an in-service event or injury that would have caused the Veteran's diabetes mellitus to become aggravated. Given that there is not even a hint of aggravation there is insufficient evidence to even trigger VA's duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran may believe that his current diabetes mellitus permanently worsened beyond its natural progression in service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the causation and worsening of his diabetes mellitus are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the causation and worsening of his diabetes mellitus is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the causation and worsening of his diabetes mellitus is not competent medical evidence. The Board has afforded probative weight to the lack of medical evidence or lay evidence to suggest worsening of the Veteran's diabetes mellitus in service. For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to service connection for diabetes mellitus. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs