Citation Nr: 21011904 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-43 156 DATE: March 3, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT The probative evidence of record supports a finding that the Veteran’s diabetes onset shortly prior to her period of service beginning in September 2012 and was clearly and unmistakably not aggravated beyond its natural progression during that period of service. CONCLUSIONS OF LAW The criteria for service connection for diabetes mellitus have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2003 to June 2004 and in the United States Air Force from September 2012 to November 2012, to include service in Afghanistan. She also served on active duty for training from May 1995 to August 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board, in August 2018, remanded the matters to the Agency of Original Jurisdiction for additional development, and they have since returned for further appellate review. Service Connection for Diabetes Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. When a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). Aggravation 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 this case, while the Veteran underwent a health assessment prior to her entry into service in September 2012, she was not examined. The August 2012 pre-deployment health assessment was comprised of 8 questions and no referrals for examination. As the Veteran was not examined prior to this period of service, the presumption of soundness cannot attach. 38 C.F.R. § 3.304(b). The most probative evidence of record shows that the Veteran was diagnosed with diabetes mellitus prior to her active service period in 2012. According to a March 2013 private medical treatment, it was noted that the Veteran was diagnosed with diabetes mellitus in April 2012. In a May 2014 VA medical opinion, an examiner opined that the Veteran was diagnosed with Type 1 Diabetes in May 2012. The Board also finds that the Veteran’s pre-existing diabetes clearly and unmistakably was not aggravated beyond its natural progression by her military service. 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). The Veteran presented for a VA examination in October 2019, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of this conclusion, the examiner noted that the Veteran’s records show she had a provisional diagnosis of diabetes mellitus type II in early 2012. The examiner noted that the records showed that she had some improved control of blood sugars in the months following this provisional diagnosis, but that this control was shown to have slipped in late 2012 and early 2013. The examiner noted that the Veteran’s records also show that she was diagnosed with diabetes mellitus type I in March 2013, and her endocrinologist at that time remarked upon the initial improvement of blood sugar control stating that her blood sugar “improved because of honeymoon period and now getting worse.” The examiner remarked that following the development of autoantibodies that cause type I diabetes, there is often what is referred to as a “honeymoon period” during which an improvement may be seen as the body mounts a partial recovery of pancreatic function. This period may last from weeks, to months, to even up to a year. In the Veteran’s case, the examiner noted that her honeymoon period began to wane during or shortly after her active duty period in 2012. The examiner indicated that this was the natural progression of the disease process, and was not affected by the Veteran’s diet or the exercise or, by extension, her active duty period. Based on the foregoing, the examiner opined that the Veteran’s medical records do not support that her diagnosed diabetes, which clearly and unmistakably existed prior to service despite not being concretely diagnosed until 2013, was aggravated beyond its natural progression by an in-service illness, event, or injury. The Board finds this opinion highly probative as it was made by a medical profession with consideration of the specific facts in this case and after examination of the Veteran. The Veteran submitted a June 2018 private medical opinion by Dr. J.B. who opined that the Veteran has latent autoimmune diabetes in adults (LADA) which is more likely than not related to service connected condition of LADA. In support of this opinion, Dr. J.B. noted that her diabetes became significantly worse during her 2012 deployment. The Veteran also submitted a July 2018 private medical opinion by Dr. R.A. who opined that the Veteran’s diabetes is more likely than not related to service connected condition of diabetes. In support of this opinion, Dr. R.A. noted that the Veteran has LADA, and food and activity do play a major role in the control. Dr. R.A. also noted that LADA would get worse if not regimented in regard to insulin intake, diet, and activity. Based on the foregoing, the Board finds that the most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the Veteran’s pre-existing diabetes mellitus was not aggravated by military service. The Board gives no probative weight to the June and July 2018 private medical opinions. These opinions, done on prefilled forms where boxes are checked and information is added, are unclear in that they are circular and essentially suggest that the Veteran’s diabetes is related to her diabetes. To the extent that Dr. J.B. indicates a belief that the Veteran’s diabetes became significantly worse during her 2012 deployment, no explanation was provided for this conclusion. Moreover, the opinion by Dr. R.A. does not address the honeymoon phase when discussing the effects of diet and exercise. The Board gives great probative weight to the October 2019 VA examiner who, upon considering the record and upon examination of the Veteran, opined that her diabetes was not aggravated by her active duty service. The examiner explained the Veteran’s diagnosis in 2012 and the subsequent honeymoon phase. The examiner indicated that this was the natural progression of the disease process, and was not affected by the Veteran’s diet or exercise or, by extension, her active duty period. The Board has considered the Veteran’s statements, to include her assertions that her diabetes mellitus was aggravated by her active duty service. See May 2018 Hearing Tr. at 2-7. As the Veteran is not shown to have medical education or experience, she is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., feeling tired or weak; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, her lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In summary, the Veteran’s diabetes is not related to any period of service; it pre-dated her entry into service in September 2012 and was clearly and unmistakably not aggravated beyond natural progression by that period of service. The claim for service connection is denied. REASONS FOR REMAND Remand is necessary prior to final adjudication for the claims for service connection for neck and back disabilities. In an October 2019 VA medical opinion, the examiner noted that the Veteran’s neck and back pains were first reported in 2010. In a June 2020 addendum, the examiner noted that the Veteran’s neck and back pain preexisted service. However, the examiner did not properly address whether any preexisting neck and back disability increased in severity during service. If an increase in severity of a preexisting disability is found, then VA has a higher burden if denying the claim (clear and unmistakable evidence that the increase in severity was due solely to the natural progression of the disorder). 38 C.F.R § 3.306. The examiner’s reference to neck and back problems not being “worsened” during deployment is too vague. As such, another medical opinion should be obtained to consider any aggravation of disability. The matters are REMANDED for the following action: Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current neck or back disability is related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the Veteran’s current diagnoses for chronic cervical strain, chronic lumbar/thoracolumbar strain and nonallopathic lesion of the thoracic and cervical regions; VA treatment records suggesting the Veteran had a history of intermittent back, neck and shoulder pain related to wearing/carrying heavy gear while in the military; and, the Veteran’s statements that she has had pain in her neck and back from wearing and carrying equipment since her 2012 deployment. If the examiner determines that a neck or back disability pre-existed a period of service, the examiner should: (1) identify the pre-existing disability, (2) address whether the disability increased in severity as a result of the period of service, and (3) if the disability increased in severity as a result of the period of service, whether there is clear and unmistakable evidence that the increase in severity was due solely to the natural progression of the disability. The need for an examination is left to the discretion of the examiner. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.