Citation Nr: 21032729 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-23 958 DATE: May 27, 2021 REMANDED Service connection for diabetes mellitus (DM II) is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the United States Army National Guard of Alabama from April 2007 to October 2007 and served on active duty in the United States Army from December 2010 to May 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The issue of service connection for DM was denied in February 2020. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Joint Motion for Partial Remand (JMPR), the parties agreed to remand and vacate the portion of the Board's February 2020 decision that denied entitlement to service connection for DM. The Court, in a January 2021 order, granted the JMPR, vacating the claim for service connection for DM portion of the Board's decision and remanding the matter to the Board for further development consistent with the terms of the JMPR. Service connection for DM II is remanded. The Veteran contends his DM II was first incurred in service and, therefore, should be service connected. The Board previously denied this claim in a February 2020 decision finding that the medical evidence unequivocally showed the Veteran's DM II was first diagnosed in 2008, in between his period of ACDUTRA and active duty, and therefore the presumption of soundness did not apply. See also Smith v. Shinseki, 24 Vet. App. 40 (2010) (indicating that the presumption operates differently and typically does not apply when a veteran's military service is limited to National Guard service or reserve service on ACDUTRA or INACDUTRA (or some combination thereof)). In any case, the Board found the medical evidence as a whole, to include a March 2018 VA examiner's opinion, did not support in-service aggravation beyond the natural progression of the disease and, therefore, service connection was not warranted. The parties to the JMPR found that the March 2018 examination and opinion of record was "equivocal and inadequate" and, in any case, there was evidence in the record of uncontrolled diabetes, hematuria, and severe glucosuria in 2011, during the Veteran's period of active duty, which was not reconciled by the examiner or the Board in the February 2020 decision. As explained in the February 2020 decision, however, presumptions operate differently, and typically do not apply when the periods of service involved include ACDUTRA and INACDUTRA. In this case, however, the evidence is conclusive that the Veteran was first diagnosed and treated for diabetes on or around May 3, 2008. The Veteran's service treatment records support this date as do VA and private opinions in the record linking his diabetes to incurrence on or about May 2008. See, e.g., Dr. A.A., MD, private opinion dated January 2020; DBQ opinion dated August 2017. On May 3, 2008, the Veteran was clearly in the National Guard, but it is unclear in what capacity. As such, Board finds it is important to clarify any and all his periods of ACDUTRA, INACDUTRA, and active duty, to include, crucially, his status on May 3, 2008, when he was initially diagnosed with DM II. Service connection is warranted if DM II was diagnosed during a period of active duty or ACDUTRA. See Smith, 24 Vet. App. at 47. To the extent DM II did not start during a period of ACDUTRA or active duty, service connection is still warranted if his DM II is either attributable to his prior period of service or, alternatively, was aggravated beyond its natural progression due to service. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Horn v. Shinseki, 25 Vet. App. 231 (2012). As outlined in the JMPR, there is at least some evidence in the Veteran's 2010-2011 active duty records showing uncontrolled diabetes, hematuria, and severe glucosuria. Thus, the pertinent inquiry is whether the record contains clear and unmistakable (i.e., undebatable) evidence that any in-service increase was due to the natural progress of the disease. See Horn, 25 Vet. App. at 235, n. 6. In March 2018, an opinion was obtained regarding whether the Veteran's DM was related to his service. In addressing whether the Veteran's DM clearly and unmistakably was not aggravated beyond its natural progression, the examiner stated there "looks [like] no signs of aggravation." The examiner's use of equivocal language is at odds with the clear and unmistakable evidentiary standard regarding aggravation of a condition that existed prior to service. While the evidentiary standard is a legal one and not a medical one, the Board finds further clarification would assist in rendering a fair adjudication of this claim, especially in light of the JMPR in this case. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the Alabama National Guard. Verify all active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) dates for alleged service in the Army National Guard from 2007 to 2011. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 3. After confirming the Veteran's periods of service, to the extent possible, obtain an addendum opinion from an appropriate clinician to address the nature and etiology of the Veteran's DM II. The claims folder must be made available to the examiner for review in connection with the examination and the examiner should be made aware the Veteran's exact dates of service: active duty, ACDUTRA, and INACDUTRA. The examination report should reflect that the claims file was reviewed, including any newly associated medical records. Based on review of the record and examination of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not that the Veteran's DM II, noted as first diagnosed in May 2008, was first incurred during a period of ACDUTRA or a period of active duty? b) If the answer to a) is "no", is the Veteran's DM II at least as likely as not related to his April 2007 to October 2007 period of ACDUTRA service? c) If the answer to a) and b) are both "no," the examiner is asked to opine whether there is clear and unmistakable evidence (i.e., undebatable) that EITHER (1) there was no increase in the DM II disability during the 2010-2011 period of active duty service; or (2) any increase in DM II disability during the 2010-2011 active duty service was due to the natural progress of the preexisting condition? In answering this last question, the examiner is specifically directed to address the December 2010 to May 2011 service treatment records that show uncontrolled diabetes, hematuria, and severe glucosuria. The examiner is further advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the August 2017 VA DBQ, March 2018 VA examination, January 2020 private opinion, and medical literature submitted in May 2021. The examiner must also address the Veteran's military records which indicate that in May 2008, the Veteran was noted to have DM and a history of elevated glucose. (Continued on the next page) The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.