Citation Nr: 21002947 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-58 669 DATE: January 19, 2021 ORDER Service connection for diabetes mellitus, type II (DMII), is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to a low back disability, is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to a low back disability, is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, her DMII manifested to a compensable degree within a year after her separation from active service. CONCLUSION OF LAW The criteria for service connection for DMII have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1963 to October 1966. In October 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). Service Connection—DMII 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, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like DMII, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran’s VA treatment records show that she has a current diagnosis of DMII. The Veteran’s son testified at her October 2020 Board of Veterans’ Appeals (Board) hearing that his mother was diagnosed with DMII within a year after separating from active service. At the time of her diagnosis, she was treated by a private provider. At the October 2020 Board hearing, she could not recall who the provider was, as such treatment occurred over 50 years earlier. The Veteran’s son also testified at the October 2020 Board hearing that the Veteran had treated with VA for approximately 25 years. VA treatment records associated with the claims file date back to 1996. However, these documents include the results of blood glucose findings dating back to February 1995. In February 1995, the Veteran blood glucose level was above the normal level, which corroborates the testimony given by the Veteran and her son (that she had DMII prior to having treated with VA). The Veteran’s service treatment records show her blood was drawn in June 1965, but her glucose levels were not tested. She also complained of many things in service which could have been symptoms of DMII: tiredness throughout service; unexplained weight loss; frequent urination; and sores on her feet and lips. Thus, there are no blood tests which refute the idea that she could have been diagnosed with DMII within a year of separating from service in October 1966. Further, she presented with many symptoms which are known to be associated with DMII. In light of the above, and affording the Veteran any benefit of the doubt, the Board finds that the Veteran’s DMII manifested to a compensable degree within a year of her separation from service. Such was the testimony rendered at the Board hearing, and is consistent with symptoms she displayed during service. There is no medical evidence which contradicts such a finding. Thus, service connection is warranted on a presumptive basis for DMII. REASONS FOR REMAND Service Connection—Low Back Disability Service Connection—Left Shoulder Disability, To Include As Secondary To A Low Back Disability Service Connection—Right Shoulder Disability, To Include As Secondary To A Low Back Disability At the October 2020 Board hearing, the Veteran testified that she had received treatment at VA, but was (at that time) receiving private medical care for the conditions on appeal. To date, no private treatment records have been associated with the Veteran’s claims file. These records may contain information which could help support her claims and, thus, must be obtained. [Also on remand, updated VA treatment records should also be obtained, as they were last associated with the claims file in September 2017.] Further, the Veteran has not been afforded a VA examination to determine the nature and etiology of any disability remaining on appeal. However, for the reasons set forth below, such examinations are needed. At the October 2020 Board hearing, the Veteran testified regarding how she had to have a cyst in her back continuously lanced while in service. Such is confirmed in her service treatment records. She also testified that she performed much heavy lifting in service. Her VA treatment records show that she has been diagnosed with chronic back pain. However, as her private treatment records and updated VA treatment records have not yet been obtained, it is possible she has an additional diagnosis related to her lumbar spine. In this regard, the Board notes that the Veteran submitted a November 2017 letter from Dr. S.A., MD, which indicates that she had cysts removed in service and that she had chronic back pain. Although this letter does not clearly link the two, in affording the Veteran the benefit of the doubt, a VA examination is needed to clarify all low back disabilities she has had during the period on appeal and the etiology of each. The Veteran also testified that she has undergone surgeries on both shoulders for conditions which she asserts are related to a low back disability. A December 2015 letter from Dr. R.E., MD clarified that she also has bilateral shoulder impingement syndrome. She also reported left shoulder pain in service in June 1964, although no shoulder condition was diagnosed at that time. A VA examination with etiology opinions is needed before the Board can decide the Veteran’s claims for service connection for right and left shoulder conditions. Accordingly, these matters are REMANDED for the following actions: 1. Obtain VA treatment records from September 2017 through present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated her for her low back and bilateral shoulder conditions. Make two requests for all authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current or previously-diagnosed low back disability manifested by chronic back pain. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Does the Veteran have a diagnosable low back disability manifested by low back pain on current examination or at any time during the pendency of the appeal (from December 2014 to the present)? (b.) If the Veteran does not have a diagnosed low back disability manifested by low back pain on current examination or at any time during the current appeal, is her low back condition characterized by pain that reaches the level of functional impairment of earning capacity? (c.) If the Veteran has either a diagnosed disability of the low back or a disability manifested by pain that reaches the level of functional impairment of earning capacity of the lumbar spine, the examiner should also answer the following: Is it at least as likely as not (i.e., 50 percent probability or greater) that such low back disability was related to any incident of active service, to include related in any way to the repeated lancing of a back cyst in service or to the heavy lifting she performed in service? The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Also after obtaining all private and VA treatment records pursuant to paragraphs 1 and 2 of this Remand, schedule the Veteran for a VA examination to determine the nature and etiology of any current or previously-diagnosed right or left shoulder disability. The examiner should review the entire claims file, conduct all necessary tests and studies, and identify all right and/or left shoulder disabilities with which the Veteran has been diagnosed at any time during the appeal period (from December 2014 to the present). For each disability, the examiner should provide the following opinions: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed shoulder condition is related to the Veteran’s service or any incident thereof, to include heavy lifting she performed in active service or her documented complaint of left shoulder pain in service? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed shoulder disability was caused by a diagnosed low back disability or a low back pain condition that reaches the level of functional impairment of earning capacity? (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed shoulder disability was aggravated (i.e., made worse) by a diagnosed low back disability or a low back pain condition that reaches the level of functional impairment of earning capacity? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, Associate 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.