Citation Nr: 21029070 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-39 233 DATE: May 12, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for an eye disability is denied. FINDINGS OF FACT 1. The weight of the probative evidence is against a finding that the Veteran's current back disability had onset in service or is otherwise related to injury during a period of active duty, active duty for training or inactive duty for training. 2. The Veteran's diabetes mellitus was not caused or aggravated by active duty or active duty for training, nor is it shown to have initially manifested within a year of discharge from active duty. 3. There is no competent evidence of a current eye disorder, other than refractive error, and there is no competent evidence that refractive error was subjected to a superimposed disease or injury which created additional disability during a period of active duty, active duty for training or inactive duty for training. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on periods of active duty service from June 19, 1987 to December 5, 1987, and from November 21, 1990 to June 15, 1991, with additional service in the Army National Guard until May 1993. In November 2018, the Board remanded the appeal for additional development, which has been completed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as 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. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Reserve and National Guard service generally means active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). The term active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 only applies to periods of active duty and not to the veteran's ACDUTRA or INACDUTRA with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multi-symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multi-symptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The Veteran's personnel records show he served in the Southwest Asia Theater of operations during the Persian Gulf War and is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a back disability The Veteran seeks service connection for a back disability due to service. The question for the Board is whether the Veteran has a current back disorder that began during service; whether any back arthritis manifested to a compensable degree within one year of separation from a period of active duty service; or whether a back disability is at least as likely as not related to a disease or injury incurred during active duty or ACDUTRA service, or related to an injury incurred during INACDUTRA service. The Board concludes that, while the Veteran has a current diagnosis of a back disability, including degenerative disc disease of the lumbar spine, the preponderance of the evidence weighs against finding that the Veteran's back disability began during active duty service, arthritis manifested to a compensable degree within a year of separation from a period of active duty service, or is otherwise related to an in-service injury (including during ACDUTRA or INACDUTRA service) or disease. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.307, 3.309(a). The Veteran's service treatment records, including the Desert Storm demobilization physical examination in May 1991, and the separation physical dated examination in April 1991, reflect no complaints, history or findings consistent with a chronic back disorder or a back injury. At that time, examination of the spine revealed no abnormalities and in reports of medical history the Veteran denied a history of recurrent back problems. At this point, it is the Veteran himself that provides evidence against his own claims. After service, private treatment records since 2012 noted complaints of low back pain. A clinical treatment note in February 2012, recorded an assessment of lumbago. In June 2016, he was seen for complaints of back pain of several years' duration (well after service). Imaging studies revealed multi-level degenerative changes with severe degenerative disc disease at L5-S1. The Veteran underwent a VA examination in September 2019. He reported a history of injuring his back when he fell in 1993, resulting in a diagnosis of degenerative disc disease of lumbar spine. Imaging studies revealed degenerative disc disease at L5-S1, L4-L5 and L3-L4. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that while the Veteran described injuring his back in 1993, there were no records to support a finding that the injury occurred in service. In fact, the service military and treatment records were silent for a back injury or any back complaints. Therefore, the examiner concluded that the Veteran's back disability was less likely than not incurred in service. The service personnel and treatment records fail to document a back injury, or chronic disability incurred during active duty service, or during a period ACTURA or injury incurred during INACDUTRA. Even assuming, without conceding, for discussion purposes that the credibility of the Veteran's account of a back injury in 1993 during service, the record is insufficient to link his current low back disability to that an alleged injury (which does not seem to have occurred), or to any other aspect of his service. Additionally, arthritis of the spine was not shown in service or within one year following discharge from active duty service, as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, the Board reiterates that those presumptive provisions do not apply to such periods of Reserves service, including ACDUTRA or INACDUTRA. The Board has considered the statements from the Veteran asserting that his current back disability had onset in service. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot self-diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current back disorder, is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Aside from the Veteran's contentions, there is no favorable evidence supporting the Veteran's claim, and significant evidence against the claim, including the Veteran's own prior statements. Finally, the Board notes that the evidence shows that the Veteran has been diagnosed with degenerative disc disease of the lumbar spine. As there is a clinical diagnosis for the back, § 3.317 is not for application. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against his claim. Service and post-service medical records, overall, provide highly probative evidence against this claim. As the preponderance of the evidence weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for service connection for back disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for diabetes mellitus The Veteran contends that he is entitled to service connection for diabetes mellitus. The Veteran's medical records reflect a diagnosis of diabetes mellitus, to include on VA examination in September 2019. As the Veteran has a diagnosis of diabetes mellitus, the claimed condition does not fall within the purview of the "undiagnosed illness" presumptive provisions under 38 C.F.R. § 3.317. The service treatment records reflect no complaints, history or findings consistent with diabetes mellitus. The evidence shows that the Veteran was initially diagnosed with diabetes mellitus in 2007, approximately 16 years after active duty service in 1991. Subsequent treatment records showed continued treatment for diabetes mellitus. The record does not reflect that diabetes mellitus was shown during a period of active duty or within one year of separation from a period of active duty, or during a period of ACDUTRA. Accordingly, the question in this case becomes whether the current diabetes mellitus is etiologically related to service. On this question, the preponderance of the evidence is against the claim. On VA examination in September 2019, following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's diabetes mellitus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion, the examiner noted that the Veteran reported, and the medical evidence showed, that he was initially diagnosed with diabetes in 2007. There was no evidence in medical records that any exposure or incident during his time in the service would have predisposed him to developing diabetes. Therefore, the diagnosed diabetes was less likely than not incurred in or caused by the incident of his period of active service during service. The Board finds the VA examiner's opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record. Moreover, the examiner provided adequate rationale for the opinions. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the current diabetes mellitus to any aspect of the Veteran's service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diabetes, falls outside the realm of common knowledge of a lay person. In this regard, any actual diagnosis of diabetes requires objective testing to diagnose, and can have many causes. Jandreau, 492 F.3d at 1377. Moreover, there is no indication that diabetes began during active duty service, ACDUTRA or is related to any aspect of the Veteran's service. In summary, there is no competent evidence of diabetes mellitus during active duty service or within one year following discharge therefrom, nor was the condition diagnosed during a period of ACDUTRA. Moreover, the most probative and persuasive evidence is against a finding that his diabetes mellitus is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. 3. Entitlement to service connection for an eye disability The Veteran seeks service connection for an eye disability, including loss of vision. A June 1986 enlistment examination report noted that the Veteran had defective vision, NCD (not considered disabling). In a report of medical history, he endorsed a history of eye trouble. The Veteran complained of "right eye irritation off and on" on his Desert Storm Out Processing Check List in May 1991. Other than refractive error, the Veteran's service treatment records document no other vision problems. After service, treatment records in 2007, following the diagnosis of diabetes mellitus, document multiple ophthalmology evaluations that showed no eye abnormalities, and specifically found no evidence of diabetic retinopathy. In April 2007, a clinician noted unusual findings of right visual field changes, however, these findings were associated with seizures and subsequent treatment records fail to document an eye disability. On VA examination in August 2019, the examiner noted that uncorrected distance vision was 20/40, and corrected 20/20, bilaterally. Uncorrected near vision was 20/70, and corrected 20/20, bilaterally. There was no astigmatism or diplopia. Internal eye examination and slit lamp and external eye exam were normal. There was no visual field defect and contraction of visual fields was normal, bilaterally. The examiner found no evidence of external eye condition, lacrimal system disorder, dry eye syndrome, cornea/conjunctiva conditions, glaucoma, uveal tract abnormality, lens conditions, cataracts, neuro-ophthalmic conditions, ocular neoplasms, trauma/hemorrhage, retina condition, macula abnormality, vitreous conditions or other eye disorder. There was no functional loss or functional impairment due to his claimed eye complaints. The examiner concluded that there was no objective evidence to support a diagnosis of an eye disability, therefore, the Veteran's claimed eye condition was less likely than not incurred in or caused by service. With respect to the refractive error, congenital or developmental defects, refractive errors of the eye, as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (c); see also Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (upholding VA's regulation that a congenital disorder is not a disease or injury as contemplated by 38 U.S.C. §§ 1110, 1131). Service connection may be granted for congenital diseases, as opposed to congenital defects. See 38 C.F.R. § 3.303 (c); VAOPGCPREC 67-90, VAOPGCPREC 82-90. VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90. If a defect is subject to superimposed disease or injury, service connection may be warranted for the resultant disability. Id. The medical records do not show any disease or injury superimposed on the Veteran's refractive error during active duty service, ACDUTRA or INACDUTRA, which created an additional disability. Thus, service connection for refractive error is not warranted. Additionally, as noted, no evidence has been presented of an eye disability, other than refractive error, during the pendency of the appeal. Under VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). See, too, Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). The Board finds that the Veteran is competent to contend that he has eye problems. Layno, 6 Vet. App. at 469-70. However, the Veteran has not been shown to have the requisite medical knowledge, training, or experience to be able to render a diagnosis of a vision disorder or an opinion on the etiology of any such vision disorder. Whether the Veteran has a vision disorder is a complex medical etiological question also involving internal and unseen processes unobservable by the Veteran. As such, the Board finds that the Veteran's lay statements are not competent evidence on the question of whether he has an eye disorder other than refractive error and are outweighed by the other evidence of record. Kahana, 24 Vet. App. 428. In sum, the Board finds that the preponderance of the evidence is against service connection for an eye disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for an eye disability, including vision loss, that doctrine is not applicable. 38 U.S.C. § 5107 (b); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.