Citation Nr: 21066950 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-26 282 DATE: November 3, 2021 ORDER The grant of service connection for diabetes mellitus type II was improper to the extent service connection was granted on a direct in-service incurrence basis; service connection is restored on an aggravation basis based on a preexisting disease aggravated during service. FINDING OF FACT Diabetes mellitus type II preexisted entrance into service in March 2003, and there is evidence of aggravation during that period of service. CONCLUSION OF LAW The severance of service connection for diabetes mellitus type II was improper to the extent service connection was granted on a direct in-service incurrence basis; service connection is restored on an aggravation basis based on a preexisting disease being aggravated during a period of active duty. 38 U.S.C. § 5112; 38 C.F.R. § 3.105; 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306(a), 3.322(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to March 1985; from March 1986 to April 1989; and from March 2003 to July 2003. The case is on appeal from a February 2018 rating decision. The Veteran testified before the undersigned in June 2021. Whether the severance of service connection for diabetes mellitus type II was proper The regional office (RO) granted service connection for diabetes mellitus type II (diabetes) in an August 2014 rating decision. The RO determined that service connection had been established as directly related to the Veteran's service. The RO cited the Veteran's service treatment records (STRs) in support of the award of service connection. In February 2017, the RO proposed to sever service connection. The RO determined that a clear and unmistakable error existed in the grant of service connection because the STRs indicated diabetes when he entered active duty in 2003. The RO concluded that this evidence showed he developed diabetes while not on active duty. After holding a predetermination hearing in September 2017, the RO issued the February 2018 rating decision on appeal. The RO made the severance final based on the same reasons set forth in the February 2017 proposed decision. The instant appeal followed. Applicable Law Service connection will be severed only where evidence establishes that the award of service connection is clearly and unmistakably erroneous (CUE) with the burden of proof being on the Government. 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). Discussion The question before the Board in this case is whether the grant of service connection for diabetes was clearly and unmistakably erroneous. The Board concludes that it was not. There are several facts not reasonably in dispute. First, that the Veteran is currently diagnosed with diabetes. Second, that he served a third period of active duty from March 2003 to July 2003. Third, that he was seen and evaluated for diabetes during that period of service. The critical question at issue in this case is whether the diabetes preexisted the third period of service and, if so, whether it underwent any degree of aggravation therein. A presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected." See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). If the presumption of soundness attaches with respect to the disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "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.'" Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). In this case, the Veteran's STRs do not contain an entrance examination at the commencement of the Veteran's entrance into active duty in March 2003. It is not clear if one was conducted and was lost or, conversely, whether no examination was conducted at all. The latter situation appears to be the case. Most significantly, the Veteran completed a Report of Medical History in March 2003 contemporaneous with his entrance into that period of active duty. He did not report a history of diabetes; he denied all relevant symptoms; and he denied "any illness or injury other than those already noted." In the comments section, the examining provider wrote that there had been no change since the last physical examination dated in December 2001; he was found "fit for duty." It appears most likely that the examiner did not conduct a physical examination because there had been no change since the prior physical examination. Hence, by inference, the examiner's comment indicates that a physical examination was not conducted. This is also consistent with the absence of an entrance examination report from that time. Because a physical examination was not conducted, the Veteran is not entitled to the presumption of soundness. 38 U.S.C. § 1111. In the context of the severance, however, there must still be clear and unmistakable evidence that the grant was error, specifically that diabetes preexisted entrance into this period of service. To this end, it is clear that diabetes preexisted service. Importantly, the March 2003 Report of Medical History referred to a December 2001 physical examination. That physical examination shows that he was taking Advandia and had "AODM controlled." The acronym "AODM" was not defined but is consistent with adult-onset diabetes mellitus. Avandia is prescription medication for people with type 2 diabetes mellitus. See https://www.drugs.com/avandia.html. This confirms that diabetes preexisted the March 2003 entrance into service by at least a year and a half. There is some evidence of an even earlier onset. For example, a December 1999 Annual Certificate of Physical Condition shows that the Veteran reported he was taking Glucotrol at that time, which, like Avandia, is a prescription medication for people with type 2 diabetes mellitus. See https://www.drugs.com/glucotrol.html. The Veteran was seen during service in April 2003 for his diabetes, at which time, he gave a history of having been diagnosed in the late 1990s. His medical history was noted to be significant for diabetes. On follow-up in May 2003, he was noted to have a history of diabetes for two to three years. A January 2006 Adult Preventative and Chronic Care Flowsheet lists diabetes since 2001. Collectively, this evidence establishes clearly and unmistakably that the Veteran's diabetes started prior to the March 2003 entrance into active duty. However, having found that diabetes preexisted this period of active duty, the Board finds there is evidence that his diabetes was aggravated during this period of active duty. In the December 2001 Report of Medical history, it was noted that he was taking a single medication, Avandia. A private (non-VA) treatment record in April 2002 notes he was taking a different medication, Glucotrol, for his diabetes. In November 2002, he reported on an Annual Certificate of Physical Condition that he was taking Glucotrol and Avandia. At the time he reentered service in March 2003, he again reported taking Glucotrol and Avandia. Then in May 2003, he reported taking Avandia and a different medication, Glucophage, for his diabetes. Finally, in May 2003, approximately 10 days later, he reported taking three medications, Avandia, Glucotrol, and Glucophage. The available medical records do not indicate why the third medication was added. However, this raises an inference that the third medication was added to further control the Veteran's diabetes. As this occurred during his period of active duty, it suggests that a worsening occurred at some point between March 2003 and May 2003 necessitating the need for the third medication. This evidence, therefore, warrants application of the presumption of aggravation. It is not then clear and unmistakable evidence that this worsening was a temporary or intermittent flare-up or that the worsening was due to the natural progress of the disease. As such, the presumption of aggravation is not rebutted. This means, in turn, that service connection on an aggravation basis is established for the disability. The original grant of service connection was clear and unmistakable error, but only to the extent the grant was made a direct, in-service incurrence basis. The evidence shows that service connection on an aggravation basis was warranted. To summarize, the Veteran did not report his diabetes at service entrance in March 2003, but a service entrance examination was not conducted at that time. Under these circumstances, the presumption of soundness did not attach. However, it is undebatable that the disease preexisted his March 2003 entrance into service because it was shown by contemporaneous evidence to have already been treated prior to that time. There is then an indication that the disease worsened during his third period of active duty as he was taking two medications to control the disease when he entered service but needed three medications shortly after entrance. There is no indication that this was a temporary increase or the natural progress of the disease. Thus, service connection on the basis of a preexisting disease aggravated by service was warranted. The RO's decision to sever service connection on the basis that the disease preexisted service was therefore clear and unmistakable error. As a final matter, the Board observes that the RO did not follow the required due process steps to sever service connection. The RO issued a proposed rating in February 2017. The Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor. However, the notification letter did not inform him that he had 60 days for the presentation of additional evidence to show that service connection should be maintained or that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). Hence, the proposed severance was improper to this extent. There was no prejudice to the Veteran, however, as he exercised his due process rights by requesting a predetermination hearing in February 2017. The hearing was held in September 2017. He then submitted additional evidence in October and November 2017. The RO followed by issuing the February 2018 rating decision, which severed service connection prospectively effective May 1, 2018. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under a February 2018 cover letter. The May 1, 2018 final severance date was greater than the last day of the month in which a 60-day period from the date of the February 2018 notice expired, which satisfied the remaining due process requirements to sever service connection. See 38 C.F.R. § 3.105(d). In light of the foregoing, the severance of service connection was improper, service connection is restored on an aggravation basis with the RO applying the provisions of 38 C.F.R. § 3.322(a), Rating of Disabilities Aggravated by Service, to the facts of this case, and the appeal is granted to this extent. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.