Citation Nr: 21013899 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-00 652 DATE: March 10, 2021 ORDER Entitlement to service connection for fibrocystic breasts is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The Veteran’s fibrocystic breasts preexisted service and did not undergo a worsening as a result of service. 2. The Veteran’s diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of the Veteran’s discharge from active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for fibrocystic breasts have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from December 1982 to February 1985 with additional service in the Reserves from March 1985 to April 2004. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded in a September 2018 Board decision. The Board instructed the RO to remand the issues in order to obtain service treatment records for ACDUTRA and INACDUTRA periods during the Veteran’s Reserve duty and to afford her VA examinations. In an October 2019 Final Attempt notification, the RO explained that all efforts to obtain additional Navy personnel records have been exhausted and determined that further attempts to obtain the records would be futile. The Veteran was afforded VA examinations for her claims in October 2019, and thereafter, the RO issued a supplemental statement of the case (SSOC) in August 2020 addressing the claims of service connection for diabetes mellitus and fibrocystic breasts. In addition to the August 2020 SSOC, the RO issued a rating decision granting service connection for hysterectomy with oophorectomy (claimed as uterine fibroid and vaginal bleeding). The currently assigned rating contemplates the residuals caused by the Veteran’s hysterectomy including uterine fibroids and vaginal bleeding. Thus, the August 2020 rating decision represents a full grant of the benefit sought on appeal as to that issue and therefore it is not currently before the Board. In addition, in August 2016, the Veteran testified before a Veterans Law Judge (VLJ) at an in-person hearing before a member of the Board. A transcript of the hearing is of record. The hearing was before a now-retired judge. In a November 2020 correspondence, the Veteran was notified that the VLJ who conducted the August 2016 hearing was no longer employed by the Board and was given the opportunity to request another hearing. In December 2020, she responded to the letter declining the opportunity for another hearing. As such, the issues before the Board are ripe for appellate review. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For compensation purposes, a Veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time or where clear and unmistakable evidence demonstrates that the injury or disease preexisted and was not aggravated by such service. 38U.S.C.§1111; 38C.F.R.§3.306(b). In order to rebut the presumption of sound condition under 38U.S.C.§1111, the government must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are only considered active service if an individual is disabled due to disease or injury incurred during ACDUTRA, or disabled due to an injury, myocardial infarction, cardiac arrest or cerebrovascular accident occurring during INACDUTRA. 38 U.S.C. § 101(24)(B), (C). For chronic diseases, such as diabetes mellitus, Type II, identified as such in 38 C.F.R. § § 3.309, the disability is considered to have been incurred in or aggravated in service if manifested to a compensable degree during the period of service or within one year following service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.307(a)(3). For chronic diseases not manifested to a compensable degree during service or within one year following service, service connection can still be established through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for fibrocystic breasts is denied. The Veteran contends that her pre-existing fibrocystic breast condition was aggravated by her military service. See August 2016 Hearing Testimony (pg. 8 & pg. 28). She contends that was diagnosed with fibrocystic breasts prior to active duty and testified that she experienced a hardening of her breast from her caffeine intake and when she had her periods. See August 2016 Hearing Testimony (pg. 28). VA treatment records from December 2017 confirm a diagnosis of dense breasts. Therefore, the first element of service connection has been met. On her Report of Medical Examination on enlistment to active duty in November 1982, the Veteran’s lungs and chest (including breasts) were found to be clinically normal. On her Report of Medical history, she denied being treated for a female disorder or any change in menstrual pattern. Service treatment records note that she complained of breast tenderness and a discharge coming from her right breast in June 1984. However, she was also confirmed to be pregnant during the same medical visit. There are no other complaints, treatments, or diagnosis of a breast condition in her service treatment records. The Veteran was afforded an in-person VA breast conditions examination in October 2019. A diagnosis of fibrocystic breasts was noted beginning in 1980, prior to the Veteran’s period of active service. The Veteran reported that she began noticing breast enlargement around the time of her menstrual cycle and the period before it as well as breast soreness. She admitted that her condition has remained the same and at times has gotten better. She currently experiences swelling and tenderness approximately twice per month. After performing a thorough in-person examination and reviewing the entire claims file, the examiner opined that the claimed breast disability clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the Veteran had clear and unmistakable evidence of the preexisting fibrocystic breasts. The evidence included the Veteran’s own statements. There is evidence to indicate the Veteran continued to suffer from the disorder during service, which is typical of the condition. However, the disability did not worsen beyond its normal progression. There is no evidence of aggravation beyond normal progression identified. The Veteran was seen while in service and diagnosed with fibrocystic breasts which she has admitted existed prior to service. Her condition has remained stable and she has admitted at times, it has even improved. The hormonal changes as well as increased caffeine and her menstrual cycle causing breast changes did not occur during service and started prior to enlistment. The Board finds the October 2019 VA medical opinion probative. The examiner considered all evidence of record after thorough review of the claims file, including lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301. There are no contradictory medical opinions of record. The Board acknowledges the statements of the Veteran as to the existence and etiology of her claimed fibrocystic breasts disorder and acknowledges that she is competent to state symptoms she experienced. For example, she is competent to discuss the fact that he experiences symptoms of pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report her current symptoms, as a lay person she does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran’s statements are of low probative value. Rather, the Board finds the medical evidence in a medical professional examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disability considering the criteria to be more persuasive than the Veteran’s reports regarding the etiology of her condition. The Board additionally notes that the evidence does not suggest a relationship between the Veteran’s now service-connected hysterectomy with oophorectomy and her fibrocystic breasts. The Veteran has also not advanced such an argument. Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for fibrocystic breasts. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for diabetes mellitus, type II, is denied. The Veteran contends that the yeast infections and high sugar levels she experienced while in service were caused by her diabetes. See August 2016 Hearing Testimony (pg. 7 & pg. 8). Her service treatment records note various incidents where she complained of vaginal discharges. In November 1983, she had a vaginal discharge and itching. In March and April of 1984, she complained of a yeast infection. However, she had a pap smear in January and February of the same year that were normal. Also, in May 2000, January 2002, and June 1992, the Veteran had consistently normal pap smears. In July 1994, the Veteran’s triglyceride levels were found to be high, but her glucose test was found to be invalid. The Veteran was diagnosed with diabetes mellitus, type II, in 2005, a year after her separation from the Reserves and 20 years after her active duty service. Thus, the issue before the Board is whether there is a so-called “nexus” between the Veteran’s diabetes mellitus, type II, and service. The Veteran was afforded an in-person VA examination for her diabetes in October 2019. After performing a thorough in-person examination and reviewing the entire claims file, the examiner opined that the Veteran’s diabetes mellitus, type II, was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran has a current diagnosis of diabetes, but it was diagnosed in 2005 approximately 20 years after her active duty service. The Veteran had no symptoms of diabetes on active duty nor was she treated for any elevated blood sugar levels. She was checked for diabetes while on active duty as she testified due to suspicion related to high triglyceride levels. It was determined while on active duty that she did not have diabetes. The condition developed after active duty. It did not have its onset in service or within one year after active duty. The examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the medical examination report contained clear conclusions with supporting data and a thorough rationale. Therefore, the medical opinion is of great probative value. No contrary opinion has been provided. The Board acknowledges the statements of the Veteran as to the existence and etiology of her claimed diabetes and acknowledges that she is competent to give evidence about what she experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report her current symptoms, as a lay person she does not have the education, training, or experience to diagnose or opine as to the etiology of diabetes as that is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). Therefore, the Veteran’s statements are of low probative value. Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disability considering the criteria to be more persuasive than the Veteran’s reports regarding the etiology of her condition. Furthermore, service connection on a presumptive basis does not apply. Chronicity has not been established because the Veteran was not diagnosed with diabetes until 2005, 20 years after active duty service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, the Veteran was not diagnosed with diabetes mellitus, type II during ACDUTRA while in the Reserves, nor did she provide evidence of an injury or occurrence that may have caused her diabetes mellitus, type II during INACDUTRA. 38 U.S.C. § 101(24)(B), (C). Thus, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for diabetes mellitus, type II. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.