Citation Nr: 21070063 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-28 481 DATE: November 22, 2021 ORDER Service connection for diabetes mellitus, type II, is granted. FINDING OF FACT It is at least as likely as not that the appellant's diabetes had its onset during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for an award of service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had service in the U.S. Army Reserve, to include a period of ACDUTRA from July 1962 to March 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. Service connection for diabetes was initially denied in a May 1963 rating decision. After the appellant filed an application to reopen the claim, the claim was again denied in a January 1984 rating decision. Generally, once a claim has been finally denied, it may be reopened only upon the submission of new and material evidence. Here, however, after the previous rating decisions were entered, official service department records were received in September 2018 that existed at the time of the prior adjudications but were not associated with the claims file. The newly received records consist of service personnel records pertaining to the appellant's separation due to physical disability, which are relevant to the appeal. Under the circumstances, the Board finds that the claim must be reconsidered on the merits, without regard to the prior adjudications. See 38 C.F.R. § 3.156(c)(i). To the extent that appellant's representative, in March 2021 correspondence, appears to be asserting clear and unmistakable error (CUE) in the May 1963 rating decision, the Board notes that the agency of original jurisdiction (AOJ) has not addressed that assertion in the first instance. As such, the Board cannot consider the matter presently. The Board also notes that, although the appellant initially requested a Board video-conference hearing in conjunction with his appeal, he later withdrew that request through his attorney. See February and March 2021 representative statements (indicating the appellant's election to waive his right to a hearing and to instead submit additional evidence and argument in support of his claim). Service connection for diabetes mellitus, type II, is granted. The appellant asserts that service connection should be established for his currently diagnosed diabetes mellitus, type II. He explains that he was first diagnosed with diabetes while in basic training, and to the extent that the evidence contains a suggestion of possible symptoms prior to service, such is not sufficient to rebut the presumption that he entered into duty in sound condition and free of any defects or diseases other than those noted on his entrance examination. See, e.g., March 2021 representative statement ("There is no reason or basis to conclude that [the Veteran] was diabetic at enlistment, and certainly no evidence rising to the lofty standard of 'clear and unmistakable.'"). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove direct service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "When a claim for service connection is based on a period of [ACDUTRA], there must be evidence that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of [ACDUTRA]." Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing 38 U.S.C. §§ 101(2), (22), (24), 1110)). In the absence of evidence of a disability incurred or aggravated during ACDUTRA, the period "would not qualify as 'active military, naval, or air service,' and the claimant would not achieve veteran status." Id. (quoting 38 U.S.C. § 101(24)). Veterans who enter active service benefit from several presumptions, including a presumption of sound condition upon entry and a presumption of aggravation of preexisting conditions. The presumption of sound condition provides that: Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (emphasis added). When a claim for service connection for aggravation of a pre-existing condition is based upon a period of ACDUTRA, "for [such a] claimant to establish status as a 'veteran' . . . he [or she] must demonstrate that he [or she] [(1)] experienced a permanent increase in disability [(2)] beyond the natural progress of that disease or injury during his period of active duty for training." Donnellan, 24 Vet. App. at 173 (explaining that "an active duty for training claimant is not required to show that his active duty for training was the proximate cause of the worsening of his preexisting disability" and defining "proximate" cause as "a cause that directly produces an event and without which the event would not have occurred."). In addition, "a claimant seeking benefits based on aggravation of an injury or disease during active duty for training has the burden of showing both aggravation elements." Id. at 174 Looking at whether appellant's ACDUTRA service qualifies him as a "veteran," it is crucial to note that he is not yet service connected for any disability relating to his service. Therefore, he is not entitled to the presumption of soundness at this juncture. However, he may still prevail in his claim if the evidence otherwise affirmatively establishes that his diabetes was incurred in or aggravated during a period of ACDUTRA. Following review of the record, the Board finds that the evidence reasonably establishes that the appellant "became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training," thereby warranting service connection and establishing "veteran" status for the appellant. See also Hill v. McDonald, 28 Vet. App. 243 (2016) (holding that "where VA determines that a claimant has established veteran status for a period of [ACDUTRA] by establishing service connection for one disability, the claimant may take advantage of the presumption of aggravation for other preexisting disabilities claimed to have been aggravated during the same period of [ACDUTRA]"). In the present case, the appellant underwent an October 2018 VA examination that revealed that he indeed had a current diagnosis of diabetes mellitus, type II. Significantly, the VA examination notes that the date of diagnosis was December 1962, which is during the appellant's period of ACDUTRA. In ascertaining whether his diabetes was incurred during service, the Board notes that the appellant's entrance examination report noted that there was a "normal" evaluation of the endocrine system and that urinalysis was "neg[ative]" for sugar. Additionally, when the appellant first complained of symptoms at the end of August 1962, associated with "having to urinate 3 or 4 times an hour," he explained that he had those symptoms for "4 weeks duration." See August 1962 service treatment report (noting an impression of "Poss. chronic cysto."). Laboratory results of the appellant's urinalysis at that time noted "2+" sugar). See August 1962 service urinalysis report. This places the onset of symptoms in late July, after he entered into ACDUTRA. He was later hospitalized in December 1962, at which time he was diagnosed with diabetes and started on insulin. Notwithstanding the service treatment records indicating the onset of symptoms during service, a January 1963 narrative summary, labeled as a "clinical abstract for purposes of Medical Board," described the following history: Patient was in his usual state of health until approximately May of 1962, when he began to note symptoms of polydipsia, polyuria, polyphasia and weight loss. At this time, he was checked for the possibility of a urinary tract infection and his health record shows at that time a 2+ glycosuria; however, no attempt was made to follow up the glycosuria at that time. The patient denied any evidence of increasing fatigue nor did he have any symptoms of any decreased visual acuity. . .. At the time of his admission ot the hospital, the patient was spilling a 4+ glycosuria with a specific gravity of the urine of 1.038. A blood sugar on admission approximately two hours after a meal was 500 mg%. The serum acetone was negative and a Co2 combining power was 24 meq/1. The patient was admitted in the hospital and placed on a 2400 calorie ADA diet . . .. At first the patient was placed on fractional urines with regular insulin coverage. After establishing a trend as to the amount of regular insulin required daily, the patient was started on NPH insulin. January 1963 Narrative Summary (emphasis added). Inexplicably, the author of that Narrative Summary does not discuss the August 1962 service treatment record or urinalysis, and the Board does not find any documentation of any urinalysis from May 1962 in the service treatment reports. Therefore, it appears that the reference to a May 1962 urinalysis with "2+" sugar may have been a typographical error. See February 1963 PEB transcript, pp. 5-6 (the appellant testified that he recalled first being treated for frequency or urgency in August 1962 and that he did not have the problem when he came on ACDUTRA in July 1962) and pp. 7-9 (when asked specifically if he recalled that the reported symptoms began in May 1962, the appellant stated he could not remember and that he only recalled having reported urinary problems for about four weeks in August 1962). See also March 1962 Report of Medical History (denying any history of sugar or albumin in urine); March 1962 entrance examination report (noting a urinalysis that was "neg" for albumin and "neg" for sugar"). Moreover, assuming arguendo that the report of symptoms from May 1962 was accurate, which does not appear to be the case, conflicting competent evidence demonstrates that the appellant was not diabetic prior to ACDUTRA. Specifically, notwithstanding the PEB's February 1963 determination that diabetes "existed prior to his term of service and which has not been permanently aggravated by service," the initial Board in January 1963 found that the evidence supported the opposite conclusion. Significantly, in January 1963 Medical Board Proceedings, the Board unanimously issued a decision finding that the diabetes (1) did not preexist entry to active duty and (2) was incurred in the line of duty and recommended that the appellant be "[p]resented to a Physical Evaluation Board [PEB] for final disposition." In addition, the VA examiner who initially examined the appellant in October 2018 provided a positive nexus opinion, relating the appellant's diabetes to his ACDUTRA based on a theory of direct in-service incurrence. The examiner stated, "The condition claimed is at least as likely as not (50% or greater probability) proximately due to or the result of the appellant's service-connected condition." By way of rationale, it was explained, "Patient had a normal physical exam and urinalysis in March of 1962. Enter A[ctive] D[uty] July 1962. Diagnosed later that year, while on active duty, with diabetes. Disease present at discharge, Diabetes is a chronic disease." Although an addendum opinion was sought in December 2020, the VA examiner's negative opinion is not entitled to any probative weight because the examiner was asked to respond to a question that erroneously presumed that his diabetes preexisted service. See December 2020 VA opinion (in the general remarks, the clinician is asked, "Was the Veteran's diabetes (which clearly and unmistakably existed prior to service) aggravated beyond its natural progression by (the) diabetes during service?"). Also, despite ultimately concluding that there was no aggravation of a pre-existing condition, the examiner's rationale actually supports a conclusion that the appellant's symptoms started in during ACDUTRA: "Patient entered basic training on July 14, 1962. His diabetes was diagnosed August 27, 1962 - 44 days after entry. The record reflects no delay in that diagnosis once the patient presented to the medical department with his symptoms. The record does not reflect that the patient suffered any end-organ damage during that 44 day period, nor did he suffer from Diabetic Ketoacidosis." Id. (Emphasis added). Finally, the VA examiner for the most recent May 2020 VA addendum opinion reviewed the electronic records associated with this appeal and determined that "the condition claimed was at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event or illness." This also constitutes competent and probative evidence in support of direct in-service incurrence. Although the rationale is written in a confusing manner, the VA examiner seems to acknowledge that the PEB found that "the patient had symptoms of diabetes prior to accession into military service . . . and, likely had [diabetes] at that time." However, the examiner explained, "there is no record of diagnosis of [diabetes] prior diagnosis on [active duty]." In light of the above, the Board is persuaded that the appellant did not have diabetes prior to entering ACDUTRA, and that his diabetes, which was first diagnosed in service, had its onset therein. Considering the evidence in its totality, the Board finds that the evidence is sufficient to establish that the appellant's diabetes was incurred during service. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Gielow, 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.