Citation Nr: 21071513 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-43 561 DATE: November 30, 2021 ORDER Entitlement to service connection for chronic kidney disease is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for a bilateral eye disability, to include diabetic retinopathy, is denied. Entitlement to service connection for a heart disability is denied. FINDINGS OF FACT 1. A chronic kidney disability was not incurred in or otherwise caused by service. 2. Diabetes mellitus, type II, was not incurred in his first period of active service, within one year of separation from his first period of active service, did not manifest during a period of inactive duty training (INACDUTRA), and there is clear and unmistakable evidence that the diabetes mellitus preexisted the Veteran's second period of active service and clear and unmistakable evidence demonstrates that the diabetes mellitus was not aggravated beyond its natural progression by the second period of active service. 3. A bilateral eye disability was not incurred in or otherwise caused by service. 4. A heart disability was not incurred in service, within one year of separation from service, or was otherwise caused by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a chronic kidney disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2021). 3. The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 4. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army from November 1983 to April 1984 and on active duty from October 8, 2001, to December 9, 2001, with additional training service in the Army National Guard from March 1983 to November 1991 and from July 1997 to April 2004. . The appeal comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran passed away in January 2017. In February 2017, the appellant (the Veteran's surviving spouse) submitted a VA Form 21-0847, Request for Substitution of Claimant upon the Death of Claimant. In a December 2017 decision, the VA Regional Office (RO) granted the appellant's substitution request. The Board mistakenly dismissed the claims in an August 2018 determination and in an April 2021 decision the Board vacated the August 2018 determination and remanded the issues for additional development. The requested development having been completed the matter again is before the Board. Service Connection 1. Entitlement to service connection for chronic kidney disease 2. Entitlement to service connection for diabetes mellitus, type II 3. Entitlement to service connection for a bilateral eye disability, to include diabetic retinopathy 4. Entitlement to service connection for a heart disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. The presumption of soundness under 38 U.S.C. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C. § 1112 and the presumption of aggravation under 38 U.S.C. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id; see also Acciola v. Peake, 22 Vet. App. 320 (2008). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence 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 ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the Appellant would not qualify as a "Veteran" by virtue of ACDUTRA service alone. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran and now appellant contend that he had diabetes mellitus, heart, bilateral eye, and kidney disabilities that were caused by his active duty for training or one period of mobilized service from October 8, 2001, to December 9, 2001. Service personnel records include a summary of the Veteran's Reserve and National Guard training points. From March 1985 to November 1991 he participated in inactive duty training and annual periods of active duty for training, the longest of 50 days but most approximately two weeks. During the period from July 1997 to April 2004 he participated in inactive duty training with and annual active duty for training, most approximately two weeks except for the mobilization period noted above. Department of Defense pay records show that the mobilization was active duty. The only record suggesting overseas deployment is a partially completed post-deployment medical questionnaire in which the Veteran indicated that he had been deployed to Africa, but he did not list the name of the country or the operations. Service treatment records from the Veteran's initial period of active service included no complaints, treatment, or diagnoses for the claimed disabilities. Army National Guard records from the 1980s after his first period of service included normal examinations and no complaints for any symptoms related to the claimed disabilities. A May 1997 Report of Medical Examination a normal examination, but testing showed elevated blood sugar levels. The Veteran reported that the sample was not a fasting sample. A contemporaneous Report of Medical History included the Veteran's denial of a history of chest pain, palpitation or pounding heart, sugar or albumin in the urine, eye trouble, or kidney stones or blood in the urine. In January 1998, January 1999, and January 2000, the Veteran denied any medical problems, including since the last examination. A November 11, 2001, Report of Medical Assessment included the Veteran's contention that his condition was the same compared to his last medical assessment. He denied any injury or illness while on active duty for which the Veteran had not sought treatment. He stated that he was taking Glipizide. In January 2002, the Veteran stated that he had no medical problems, including any such problems since his last physical examination. A February 2002 periodic Report of Medical Examination included a normal examination of all relevant systems. His urine albumin and sugar were negative at that time. A contemporaneous Report of Medical History included the Veteran's report of a history of albumin or sugar in his urine. Specifically, the Veteran reported glucosuria at his last periodic physical. An October 2003 service treatment record indicated that the Veteran was taking Glipizide for diabetes mellitus and that the Veteran was nondeployable. Treatment records indicate diabetes mellitus, type II, from about 1990, chronic kidney disease, stage II, from 2011, coronary artery disease with a stent placed in 2011, severe concentric left ventricular hypertrophy from 2001, and diabetic retinopathy with laser treatment. A January 2012 private treatment record indicated that the Veteran had a 15-year history for diabetes, with change in vision over the last year. The treatment provider diagnosed bilateral diabetic retinopathy. In his March 2013 claim, the Veteran indicated that his diabetes mellitus began in January 1999, his heart condition in November 2011, and his eye condition in December 2011. An April 2013 treatment record indicated that the Veteran had long-standing diabetes mellitus from 1990 and had been diagnosed with diabetic retinopathy. In September 2013, the Veteran was granted disability benefits from the Social Security Administration (SSA) based on multiple disabilities, including hypertension, diabetes mellitus, coronary artery disease, status post percutaneous transluminal coronary angioplasty and stent (times two), lumbar disc bulging with small, herniated nucleus pulposus and impingement and diabetic retinopathy, status post bilateral laser surgeries. The Veteran had had diabetes for the past 20 years. The Veteran's retinopathy in both eyes was secondary to his diabetes. The Veteran underwent heart surgery in 2011. In his March 2014 notice of disagreement, the Veteran appealed the denial of the above issues because "I had this problem while I was serving in the military." He asserted that the Army discharged him because the Army stated that he could not get his medication while at war. In an August 2015 statement, the Veteran indicated that he was released from service due to his diabetes because his unit was going to be deployed to Iraq. For the purposes of this decision, the Board will find that the Veteran had diabetes mellitus, bilateral eye, kidney, and heart disabilities. As such, the crucial inquiry is whether those diagnosed disabilities were incurred in or were otherwise caused by the Veteran's active mobilized or training National Guard service. The Board concludes that the weight of competent and credible evidence indicates they were not. The Veteran's service treatment records from his first period of active duty for training service include no complaints, treatment, or diagnosis of any of the claimed disabilities. The Veteran and appellant have not contended onset of his problems during this period of service until November 1991. There is no medical evidence attributing the Veteran's disabilities to his first period of active duty for training service. As such, further consideration of the Veteran's first period of service as a basis for granting entitlement to service connection is not warranted. The Veteran's diabetes mellitus manifested in the period between his first and second periods of service, during which time he had no ongoing National Guard service. There is no lay or medical evidence suggesting onset of the disability during a period of ACDUTRA. As such, service connection for diabetes mellitus is not warranted based on any National Guard service. The remaining disabilities did not manifest during this time period. The Veteran's second period of active duty for training with one period of mobilized service in 2001 does not suggest a worsening of the Veteran's diabetes mellitus that preexisted this period of service. In that regard, 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. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). In this case, there is clear and unmistakable evidence that the Veteran's diabetes mellitus preexisted his second period of active service. The medical and lay evidence demonstrate that the Veteran was diagnosed with diabetes mellitus in approximately mid- 1990s, or years prior to his second period of training and active service. In addition, there is clear and unmistakable evidence that the Veteran's diabetes mellitus was not permanently aggravated by his second period of service. There is no lay or medical evidence that the diabetes mellitus worsened during his second period of active service. The Veteran stated that he separated from service because his unit was being sent to Iraq and that his diabetes mellitus medication potentially would not be available in that location. This statement does not suggest worsening of the diabetes mellitus during that period of service. As such, service connection based on aggravation of a preexisting diabetes mellitus disability is not warranted. Cf. 38 C.F.R. § 3.306. The remaining disabilities had not manifested prior to the Veteran's second period of active service and there is no lay or medical evidence suggesting onset during this period of service or that the heart, kidney, or eye disabilities were caused by the Veteran's first or second period of active service, other than the Veteran's and now appellant's general contentions. There is no medical evidence suggesting such a connection, as the medical evidence indicates onset of the disabilities many years after the Veteran's active and active duty for training service with no suggestion of an association between any of the disabilities and his service. The Veteran's bilateral diabetic retinopathy has been attributed to his diabetes mellitus, for which service connection is not warranted. Treatment records for the heart and kidneys note risk factors other than the Veteran's active service and do not opine as to any connection with active service. The Board has considered the general contentions of the Veteran and now appellant that the claimed disabilities had their onset in service or otherwise were caused by service. The evidence, however, demonstrates that the diabetes mellitus manifested between the Veteran's periods of active service and there is no competent evidence indicating that the diabetes mellitus was caused by the first period of active service or was permanently aggravated by the second period of service. Indeed, the Veteran clearly stated that the sole reason for his separation from the second period of service was that the medication he was taking for the diabetes mellitus prior to entry into service would not be available in Southwest Asia. As to the remaining disabilities, there is no clear argument articulated as to how these disabilities were associated with the Veteran's active service. As noted, the record clearly indicates that these problems first manifested years after the Veteran's separation from his final period of active service and there is no specific lay or medical evidence linking these disabilities to his active service or any subsequent National Guard service. As the weight of competent and credible evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107(b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.