Citation Nr: A25035674 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210805-176856 DATE: April 17, 2025 ORDER 1. Entitlement to service connection for diabetes mellitus type II is denied. 2. Entitlement to service connection for a lower back disability is denied. 3. Entitlement to service connection for a left shoulder disability is denied. 4. Entitlement to service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against a finding that the Veteran's current diabetes mellitus type II had onset during active service or within one year of service discharge, or that it is otherwise related to active service. 2. The evidence of record persuasively weighs against a finding that a lower back disability had onset during active service, was diagnosed as arthritis within one year of service discharge, or that it is otherwise related to active service. 3. The evidence of record persuasively weighs against a finding that a left shoulder disability had onset during active service or is otherwise related to active service. 4. The evidence of record persuasively weighs against a finding that a right shoulder disability had onset during active service or is otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for low back condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left shoulder condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right shoulder condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1976 to June 1979. The rating decision on appeal was issued in March 2021; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the March 2021 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus are presumed to have been incurred in service, if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3102; see also Lynch v. McDonough, 21 F.4th 771 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). 1. Entitlement to service connection for diabetes mellitus type II. The Veteran asserts generally that his current diabetes mellitus type II is related to active service. Specifically, within a lay statement submitted in August 2021 in conjunction with his VA Form 10182, the Veteran reported that his diabetes mellitus began in the military and that he was diagnosed within one year of an honorable discharge. He further stated that he had ordered his exit exam lab work to show that he was a diabetic and had many other health challenges. Following a review of the record, and as discussed further below, the Board finds that the most probative evidence of record persuasively weighs against the Veteran's claim. Regarding the first required element of a service connection claim, a current disability, the March 2021 rating decision on appeal made a favorable finding that the Veteran has a current disability of diabetes mellitus type II. The Board is bound by the AOJ's favorable findings under the AMA. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Therefore, the Board finds the first element of a current disability is met. Regarding the second element of an in-service disease, injury, or event, the Board notes that the Veteran's service treatment records do not document any complaints, treatment, or diagnosis of diabetes mellitus or related symptoms during active service. Significantly, the Veteran's April 1979 Report of Medical Examination at separation does not document any complaints or findings of diabetes mellitus or related symptoms, and the Veteran's urinalysis did not contain any sugar or albumin. Given the above, the Board finds that the evidence of record weighs against a finding of an in-service onset of diabetes mellitus, and as such, direct service connection is not warranted. Additionally, the Board finds that presumptive service connection is also not warranted as diabetes mellitus type II did not manifest to a degree of 10 percent or more within one year of separation of active duty. 38 U.S.C. 1101, 1112, 113, 1137; 38 C.F.R. 3.307 (a)(3), 3.309(a). And with respect to continuity of symptomatology, the weight of the evidence is not in appropriate balance to support the contention that diabetes mellitus type II has been continuous since separation from active service. Notably, the first evidence of diabetes mellitus in the record document that the Veteran was diagnosed in September 2015, and upon a previous visit in October 2014, the Veteran specifically denied a history of diabetes. As there is no probative evidence noting a diagnosis or treatment for diabetes within a year of separation from active duty, the Board finds that presumptive service connection is not warranted. Finally, regarding the third required element of a nexus between his current diabetes mellitus type II and active service, the Board finds that the probative evidence weighs against a nexus as well. As noted above, post-service VA treatment records document that the Veteran denied a history of diabetes in an October 2014 review of symptoms. Thereafter, in September 2015, he was first diagnosed with diabetes mellitus. At that time, he reported that he was told in the past that he had diabetes and for a while was on Metformin but that his blood sugars improved with diet, exercise, herbs. A January 2021 private medical opinion by Dr. Megan Traficante, Diagnostic Consultant, found that the Veteran's diabetes mellitus type II was as likely as not directly and causally related to the Veteran's active service based upon the Veteran's report that he was diagnosed with diabetes within one year of separation from service. The Board has considered the positive nexus opinion above, but finds that Dr. Trafincante's opinion is of no probative value as it appears to be based on inaccurate information obtained from the Veteran's self-reported history, which is inconsistent with the additional evidence of record. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, the opinion lacks a thorough rationale supported by the reference to evidence of record. As such, the opinion is given no probative weight in the context of the Veteran's claim. The Board has also considered the lay evidence of record, which is probative insofar as it relates observable symptomatology. However, to the extent that the Veteran asserts that his current diabetes mellitus type II had onset during active service or within a year of service discharge, or that his current diabetes mellitus type II is related to active service, the Board finds that such statements are not probative as the Veteran's statements regarding the time of onset are inconsistent with the additional evidence of record, including service treatment records and post-service VA treatment records. Although the Veteran reported within an August 2021 lay statement that his diabetes mellitus began in the military and that he was diagnosed within one year of an honorable discharge, this is not corroborated by the Veteran's service treatment records. Additionally, while the Veteran reported that he had ordered his exit exam lab work to show that he was a diabetic, the Board finds his service treatment records more probative, as his April 1979 separation examination does not document any complaints or findings of diabetes mellitus or related symptoms, and the Veteran's urinalysis at that time did not contain any sugar or albumin, which would otherwise indicate diabetes symptoms. Moreover, the Veteran is not competent as a layperson to render a medical nexus opinion regarding a complex and internal condition such as diabetes mellitus type II. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board affords little probative weight to the lay evidence of record which asserts that diabetes mellitus had onset during service or a presumptive period or that it is otherwise related to service. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with the claim for service connection for diabetes mellitus type II, but the facts of this case do not necessitate a VA examination and/or medical opinion regarding this claim. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In this case, while there is a current disability, there is no probative evidence that diabetes mellitus type II or related symptoms had onset during active service or an applicable presumptive period. Moreover, to the extent that the January 2021 private medical opinion indicates that the Veteran's diabetes mellitus type II may be related to service, for the reasons discussed above, the Board affords no probative value to this opinion as it is based upon an inaccurate factual premise and is unsupported by a rationale. For a VA examination and/or medical opinion to be warranted, all McLendon criteria must be satisfied and here, the criterion of an in-service event, injury, or disease and a probative indication that the disability may be associated with the Veteran's service are not met. Therefore, the Board finds that entitlement to a VA examination and/or medical opinion is not warranted for the Veteran's claim for service connection for diabetes mellitus type II. For the above reasons, the Board finds that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for diabetes mellitus type II. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application, and the claim is denied. Lynch, 21 F.4th 776. 2. Entitlement to service connection for a lower back disability. The Veteran also asserts that a current lower back disability is related to active service. In his August 2021 statement, the Veteran reported that he participated in a weightlifting and bodybuilding team during active service with the 4th/73rd Armored Infantry Division and that this, along with pictures documenting his weightlifting were direct and circumstantial evidence of a back injury that did occur in military service. He further stated that after military life when working on civilian jobs, it was easy for such injuries to reoccur. Following a review of the record, and as discussed further below, the Board finds that the most probative evidence persuasively weighs against the Veteran's claim. Initially, the Board notes that in the March 2021 rating decision, the AOJ found the Veteran had been diagnosed with pain and dysfunction of the lower back. The Board is bound by this favorable finding. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Therefore, the Board finds the first element of a current disability is met. Regarding the second element of an in-service disease, injury, or event, the March 2021 rating decision also made a favorable finding that the Veteran had an in-service occurrence of lower back pain as noted in service treatment records. The Board notes this is consistent with a September 1976 service treatment record which documents the Veteran's complaint of lower back pain after he slipped in the shower one day before, although he denied current back pain at the visit. Given this, the Board concedes the in-service element of the Veteran's claim has been met. Notably, however, such evidence does not document an onset of a chronic lower back disability, as the Board notes that the Veteran's separation examination in April 1979 documents a normal clinical evaluation of the Veteran's back and spine, without any notation of a lower back disability or related complaints. Regarding the third required element of a nexus to active service, post-service VA treatment records from December 2014 document an initial outpatient visit wherein the Veteran reported a prior lifting injury in September 2014 while working at Walmart. He stated that he injured his back by pulling heavy pallets and noted that he was presently seeking worker's compensation and completed physical therapy for one month. Thereafter, upon follow up in November 2016, the Veteran reported lower back pain related to a motor vehicle accident in February 2016. He reported that he received outside chiropractic treatment that was not helpful. At that time he also reported a history of chronic back pain previously attributed to lifting while working at Walmart in September 2014. Again upon follow up in December 2017, the Veteran reported chronic back pain attributed to a workplace injury at Walmart in September 2014 and exacerbated by his subsequent motor vehicle accident. Upon VA examination in February 2018, a VA examiner noted the Veteran's service history was silent for any chronic, recurring, or persistent lower back complaints. The examiner noted that the Veteran was seen in 1976 for a lower back strain after he had slipped in the shower, after which he was treated and returned to full duty. Additionally, the examiner noted that the Veteran's separation examination was silent for any chronic lower back complaints nor did the examining provider find any lower back abnormalities. The examiner stated that strains/sprains are acute episodes associated with specific events or activities, and they generally resolve with rest, time, and medication. Additionally, the examiner noted that a strain does not necessarily lead to a chronic condition such as arthritis or disc disease, and that this appeared to be the case here since the medical record subsequent event was silent for any chronic, recurring, or persistent lower back issues. Thus, the examiner found there is no objective evidence of any continuity of the Veteran's back symptoms, since service separation or otherwise, that would provide a nexus between the Veteran's currently reported back symptoms and the veteran's active military service activities that ended 39 years ago. The examiner also noted that it had been 39 years since the Veteran separated from the military and other unknown intercurrent events could have played a role or roles in the Veteran's current lower back condition, which was in addition to the natural process of aging that occurs in all joints, but especially so in the weight bearing joints such as the lower spine. Given the above, the VA examiner concluded that it is less likely as not that the Veteran's current lower back condition is secondary to his military service duties and activities that ended 39 years ago. A January 2021 private medical opinion by Dr. Traficante found that the Veteran suffered from progressive low back pain which became constant and in varying degrees of intensified pain with standing, sitting, bending, twisting, walking, and transitioning to and from a seated position. Based on the presentation of symptoms, Dr. Traficante diagnosed the Veteran with pain and dysfunction of the lumbar spine that was as likely as not directly and casually related to the Veteran's military service based upon the Veteran's report that he was a power lifter during active duty and due to the impact of repetitive lifting, he developed chronic back pain. The Board has considered the conflicting VA and private nexus opinions discussed immediately above. First, the Board finds that Dr. Trafincante's opinion is of no probative value as it lacks a thorough rationale supported by the reference to evidence of record. Additionally, the opinion does not discuss the Veteran's service treatment records which document that his insolated in-service complaint of back pain resolved, as evidenced by his normal separation examination. Moreover, the private physician did not consider the relevant post-service evidence of record regarding the Veteran's September 2014 workplace back injury or subsequent February 2016 motor vehicle accident, which further lowers its probative value. Additionally, the Board finds the February 2018 VA medical opinion to be highly probative evidence that weighs against a finding of a nexus. The findings and conclusions the examiner made were credible and competent, as they were provided with a thorough rationale regarding the statements supporting that the Veteran's lower back condition lacked connection to his service. Specifically, the February 2018 examiner acknowledged the Veteran's in-service back injury, but noted that this condition resolved during service, prior to discharge. Additionally, the examiner noted that it had been 39 years since the Veteran separated from the military and it was unknown what other intercurrent events could have played a role in the Veteran's current lower back condition, such as, the likely event of the natural aging process in the weight bearing joints such as the lower spine. The examiner reported that there was no clear objective evidence to support a positive nexus between lower back condition and active service. The Board has considered the relevant lay statements of record, which are generally probative insofar as they report observable symptomatology. However, to the extent that the Veteran asserts that his lower back disability is related to his active service, such statements lack probative value given their inconsistence with the additional evidence of record. Notably, the objective service treatment and service personnel records do not document any weightlifting injuries or related complaints during active service. Moreover to the extent that the Veteran asserts his current lower back disability is related to active service, such statements are also not probative as the Veteran has not been shown to possess medical expertise to render a nexus opinion regarding a complex and internal disease process involving the lower back. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. For the above reasons, the Board finds that the evidence persuasively weighs against the Veteran's claim for service connection for a lower back disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application, and the claim is denied. Lynch, supra. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to service connection for a right shoulder disability. The Veteran also asserts that his current left and right shoulder disabilities are related to active service. In his August 2021 statement, the Veteran reported that he participated in a weightlifting and bodybuilding team during active service with the 4th/73rd Armored Infantry Division and that this, along with pictures documenting his weightlifting were direct and circumstantial evidence of bilateral shoulder injuries that did occur in military service. He further stated that after military life when working on civilian jobs, it was easy for such injuries to reoccur. Following a review of the record, and as discussed further below, the Board finds that the most probative evidence persuasively weighs against the Veteran's claims. Initially, the Board notes that in the March 2021 rating decision, the AOJ found the Veteran had been diagnosed with pain and dysfunction of the bilateral shoulders. The Board is bound by this favorable finding. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Therefore, the Board finds the first element of a current disability is met. Regarding the second element of an in-service disease, injury, or event, the Board notes that the Veteran's service treatment records do not document any complaints, treatment, or diagnosis of right or left shoulder conditions or related symptoms during active service. Significantly, the Veteran's April 1979 Report of Medical Examination at separation does not document any complaints or findings regarding the Veteran's shoulders or related symptoms, and a musculoskeletal evaluation was normal. Given the above, the Board finds that the evidence of record weighs against a finding of an in-service onset of bilateral shoulder disabilities, and as such, direct service connection is not warranted. Additionally, regarding the third required element of a nexus between his current right and left shoulder disabilities and active service, the Board finds that the probative evidence weighs against a nexus. Notably, post-service VA treatment records do not document any complaints or treatment regarding the Veterans' shoulders. A January 2021 private medical opinion by Dr. Traficante found that the Veteran's right and left shoulder pain and dysfunction were as likely as not directly and causally related to the Veteran's active service based upon the Veteran's report that he was a power lifter during active duty and due to the impact of repetitive lifting, he developed chronic bilateral shoulder pain. The Board has considered the positive nexus opinion above, but finds that Dr. Trafincante's opinion is of no probative value as it appears to be based on inaccurate information obtained from the Veteran's self-reported history, which is inconsistent with the additional evidence of record, including service treatment records and post-service VA treatment records which do not document any bilateral shoulder complaints or treatment. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, the opinion lacks a thorough rationale supported by the reference to evidence of record. As such, the opinion is given no probative weight in the context of the Veteran's claim. The Board has also considered the relevant lay statements of record, which are generally probative insofar as they report observable symptomatology. However, to the extent that the Veteran asserts that a bilateral shoulder disability is related to his active service, such statements lack probative value given their inconsistence with the additional evidence of record. Notably, the objective service treatment and service personnel records do not document any weightlifting injuries or related complaints during active service. Moreover to the extent that the Veteran asserts his current bilateral shoulder disability is related to active service, such statements are also not probative as the Veteran has not been shown to possess medical expertise to render a nexus opinion regarding a complex and internal disease process involving the lower back. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with the claim for service connection for bilateral shoulder disabilities, but the facts of this case do not necessitate a VA examination and/or medical opinion regarding this claim. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In this case, while there is a current disability of bilateral shoulder pain and dysfunction, there is no probative evidence that bilateral shoulder disabilities or related symptoms had onset during active service or an applicable presumptive period. Moreover, to the extent that the January 2021 private medical opinion indicates that the Veteran's bilateral shoulder disabilities may be related to service, for the reasons discussed above, the Board affords no probative value to this opinion as it is based upon an inaccurate factual premise and is unsupported by a rationale. For a VA examination and/or medical opinion to be warranted, all McLendon criteria must be satisfied and here, the criterion of an in-service event, injury, or disease and a probative indication that the disability may be associated with the Veteran's service are not met. Therefore, the Board finds that entitlement to a VA examination and/or medical opinion is not warranted for the Veteran's claim for service connection for bilateral shoulder disabilities. For the above reasons, the Board finds that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for bilateral shoulder disabilities. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application, and the claim is denied. Lynch, supra. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Carter, Associate Attorney 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.