Citation Nr: 1817398 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 13-03 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, type I. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2006 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2017, the Veteran failed to appear, without explanation, for a Board hearing. There is no indication in the record that he did not receive notification of the hearing, and he has not requested that the hearing be rescheduled. His request for a hearing is thus considered withdrawn. C.F.R. §20.702(d) (2017). FINDINGS OF FACT 1. The preponderance of the competent and credible evidence establishes that the Veteran was first diagnosed with diabetes mellitus, type I, during his active duty service. 2. The record does not establish by clear and unmistakable evidence that the Veteran's diabetes mellitus, type I, existed prior to service. CONCLUSION OF LAW The criteria for the grant of service connection for diabetes mellitus, type I, have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, in view of the Board's favorable decision herein, further assistance is unnecessary. Legal Criteria & Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on 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. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in the examination reports are to be considered as "noted." See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). To rebut the presumption of sound condition for conditions not noted at entrance 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. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23,027 (May 4, 2005). A pre-existing disorder will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a), (b). Aggravation of a pre-existing condition 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). In other words, the presumption of aggravation only arises "where the pre-service disability underwent an increase in severity during service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). If the presumption of aggravation arises under 38 U.S.C. § 1153, then the burden shifts from the Veteran to the government to rebut by clear and unmistakable evidence the pre-existing condition was not aggravated during service, or by establishing that any increase in disability is due to the natural progression of the pre-existing condition. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306; Cotant v. Principi, 17 Vet. App. 117, 131 (2003); VAOPGCPREC 3-03, 69 Fed. Reg. 29,178 (2004); see also Wagner, 370 F.3d at 1096; and Hunt, 1 Vet. App. at 296. In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary of intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt, 1 Vet. App. at 296-97. In the current appeal, the Veteran contends that his currently diagnosed diabetes mellitus, type I, was caused by and incurred during his active military service. Specifically, the Veteran argues that his service entrance examination did not note any difficulties, including any problems with blood sugar, and that he was first diagnosed with diabetes during basic training. Further, the Veteran contends that he had no prior history of diabetes and denies knowledge of a family history of diabetes. See February 2018 appellate brief; January 2013 VA Form 9; June 2010 notice of disagreement. Service treatment records (STR) indicate that the Veteran underwent an entrance examination in June 2006. The examiner did not note any diagnosis or symptom of diabetes. The Veteran also denied having a history of high or low blood sugar. On August 2, 2006, the Veteran presented to the medical clinic with complaints of fatigue, increased thirst, increased urination, and light headedness. A blood glucose was checked at that time and found to be 155, and a repeat blood glucose the next day was found to be 167. The Veteran was given an assessment for hypoglycemia and referred to the internal medicine clinic. The Veteran presented to the internal medicine clinic on August 10, 2006, and was given an assessment for diabetes mellitus. The treatment provider put the Veteran on insulin at low doses due to possibility of diabetes mellitus. See August 25, 2006, medical board report. On August 29, 2006, the Veteran submitted to a medical board examination. The examiner diagnosed the Veteran with diabetes and deemed him not qualified for service. Subsequently, a physical evaluation board determined that the Veteran was unfit for service and recommended separation due to pre-existing diabetes mellitus, type I. The board also noted that his diabetes was not aggravated by service. On October 11, 2006, the Veteran was discharged from service. Following his discharge, the Veteran visited a private treatment provider. See July 2009 G.F.C. progress note. He indicated to his provider that he did not have prior problems with blood sugar before being diagnosed in service. The Veteran continues to receive treatment for diabetes mellitus, type I. Upon review of the record, the Board finds, first, that the Veteran was in sound condition when examined and accepted for service. The June 2006 examination did not reveal a diagnosis of diabetes, and the Veteran did not report any history of diabetes prior to his service. Accordingly, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Indeed, the Board finds that the record does not establish by clear and unmistakable evidence that the Veteran's diabetes mellitus, type I, existed prior to service. The Board acknowledges the physical evaluation board's finding that the Veteran's diabetes pre-existed service and that it was not aggravated by service. However, the physical evaluation board did not provide any rationale for its conclusions and did not address the Veteran's repeated contention that he did not have a history of diabetes or a family history of diabetes. The Board finds no evidence to doubt the Veteran's credibility. Further, there is no other evidence of record establishing a pre-existing diagnosis of diabetes. Accordingly, the presumption of soundness has not been rebutted, and the criteria for service connection for diabetes mellitus, type I, have been met. ORDER Service connection for diabetes mellitus, type I, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs