Citation Nr: 1807992 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-18 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to a rating in excess of 10 percent for dorsolumbar strain with degenerative disc disease (back disability). 3. Entitlement to a rating in excess of 10 percent for cervical spine degenerative disc disease (neck disability). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from June 1982 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. In October 2017, the Board obtained a medical expert opinion from the Veterans Health Administration. The Veteran was provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which he did in November 2017. The claims for increased ratings for the service-connected neck and back disabilities are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT Diabetes mellitus had its onset in service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for diabetes mellitus, which he contends had onset in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). In this case, the evidence shows that the Veteran has had diabetes mellitus throughout the appeal period. See, e.g., VA treatment records (September 15, 2008). While the Veteran was not specifically treated for diabetes mellitus in service, service treatment records (STR) show glucose levels as high as 130. See, e.g., STR (December 14, 2000). Significantly, STRs also show that the Veteran received diabetes counseling/education. See STR (June 26, 2001). On separation from service, the Veteran was scheduled for a diabetes mellitus examination; however, the examination was never conducted. See C&P Examination Request Report (April 12, 2002). At that time, the Veteran filed a claim for service connection for diabetes mellitus, which was recharacterized as one for elevated blood sugar and denied as a non-service connectionable disability. See, e.g., Rating Decision (October 2002). After service, treatment records show that glucose as high as 125 (see, e.g., private treatment record (PTR), August 28, 2010); he was diagnosed with diabetes mellitus in 2008. See PTR (October 16, 2008). Recently, the private physician who initially diagnosed diabetes mellitus, stated that the Veteran's high in-service glucose levels suggest it is possible the Veteran may have been pre-diabetic prior to establishing care. See Letter (October 18, 2016). In October 2017, a VHA medical expert opined that it is less likely as not that the Veteran's current diabetes mellitus had onset in service, within one year after separation from service in August 2002, or otherwise related to service. The rationale was that glucose levels prior to 2004 are not consistent with untreated diabetes mellitus. The medical expert emphasized that while glucose levels were elevated during service, they were as low as 76 in 2004. The Veteran contends that the VHA medical expert's opinion is inadequate. For instance, the Veteran explained that his glucose level was 76 in 2004 because there were measures in place to control it. Additionally, he contends that the expert did not address the fact that the glucose levels used to diagnose diabetes mellitus were nearly the same as those in service. The Board finds persuasive the Veteran's contentions, concludes that the expert's opinion is cursory, and thus, afforded limited probative value. Overall, the evidence is in equipoise as to whether the Veteran's diabetes mellitus had its onset in service. The Board finds persuasive the fact that STRs show multiple, separate elevated glucose readings and that the Veteran was counseled on diabetes mellitus management prior to separation from service. When coupled with the favorable private opinion of the physician who initially diagnosed the Veteran's diabetes mellitus, the Board resolves any doubt in the Veteran's favor and concludes that diabetes mellitus had its onset in service. Thus, all three elements necessary to establish service connection have been met. ORDER Service connection for diabetes mellitus is granted. REMAND With regard to the service-connected neck and back disabilities, the Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examination, which was conducted in February 2016, does not provide this information. Likewise, VA examination is needed to address functional limitations during flare-ups. Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran's descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity and the impact of his service-connected disabilities on his ability to work. 2. Then, arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected neck and back disabilities. The joints involved must be tested for pain on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner is also to describe e all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Finally, readjudicate the appeal. If either of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).