Citation Nr: A21019072 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 200828-106809 DATE: November 30, 2021 ORDER The September 2010 decision denying service connection for diabetes mellitus was not tainted by clear and unmistakable error, therefore the appeal is denied. FINDING OF FACT Based upon the law in effect at the time and the facts of record at the time, the September 2010 decision did not involve clear and unmistakable error. CONCLUSION OF LAW No revision in the September 2010 decision to deny compensation for diabetes mellitus is warranted. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969, to include service in Vietnam from September 1968 to September 1969. He was awarded the Vietnam Campaign Medal, among other decorations, for his service in Vietnam. The Veteran's attorney has filed written argument asserting that a September 2010 Agency of Original Jurisdiction (AOJ) decision which denied service connection for diabetes mellitus was clearly and unmistakably erroneous as the evidence of record at the time supported a grant. Previous determinations which are final and binding, including decisions of service connection and degree of disability will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105. In Thompson v. Derwinski, 1 Vet. App. 251 (1991), the Court held that a difference of opinion as to the facts or a disagreement with the original rating and its interpretation of the facts is not the type of administrative reversible error contemplated under 38 C.F.R. § 3.105(a). "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). A claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet. App. 310 (1992). "To prove the existence of CUE as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Bustos v. West, 179 F.3d 1378, 1380 (1999). In order to determine whether the September 2010 rating decision contained CUE, a review of the law and evidence which was before the rating board "at that time" must be undertaken. See 38 C.F.R. § 3.104(a). "A determination that there was 'clear and unmistakable error' must be based on the record that existed at the time of the prior...decision." Russell, supra at 314. In other words, the VA cannot apply the benefit of hindsight to its evaluation of the rating board's actions in 2010 in determining whether CUE existed. The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). There is a three-part test to determine whether a decision must be revised or reversed based on CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied;" (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245 (quoting Russell, 3 Vet. App. at 313-14); Wilson v. West, 11 Vet. App. 383, 386 (1998). The laws and regulations regarding service connection have remained substantively the same since 2010. Certain defined disabilities, including diabetes mellitus are presumed under law to have been caused by or related to herbicide exposure in Vietnam. Service connection on this basis is appropriate when diabetes becomes manifest to a degree of 10 percent or more. 38 C.F.R. §§ 3.303, 3.307, 3.309. Diabetes which is managed by restricted diet only is considered to be 10 percent disabling under the VA rating schedule. 38 C.F.R. § 4.119, Diagnostic Code 7913. Historically, in April 2010, the Veteran filed a claim for entitlement to service connection for diabetes mellitus as caused by exposure to herbicides during his Vietnam service. The AOJ denied the claim in September 2010 on the basis that the Veteran did not have a current disability involving diabetes. In developing the claim, adjudicators at the AOJ reviewed outpatient treatment records from the Denver VA Medical Center dated in February 2010 and April 2010. A memorandum reflecting this review indicates that in February 2010, laboratory values were noted to be consistent with a new onset of diabetes. An April 2010 notation reflected a new diagnosis of noninsulin-dependent diabetes mellitus. No other medical treatment records were obtained or reviewed in connection with the diabetes claim. The AOJ ordered a VA examination for the Veteran, which was conducted by a doctor of medicine. According to the report of the August 2010 examination, the Veteran provided a history of having been diagnosed with diabetes at Kaiser where he received his medical care. He had recently sought care from the VA but was upset because the VA was charging him for the care, and he believed he should not have to pay for VA medical care. For this reason, he explained that he refused to undergo further blood tests and had stopped taking his medications, to include the Metformin his primary care provider had prescribed for diabetes symptoms. He did not report for the blood tests ordered by the VA examiner, perhaps under the misimpression that he would be required to pay for them. In any case, the VA examiner was left without the complete information that contemporaneous blood testing would have provided. The VA examiner commented on the available evidence as follows: He states he was diagnosed as a diabetic in March of 2008. I am unable to find any laboratory findings to support this diagnosis, and he did not have any classical symptoms of diabetes at the time, such as polyuria, polydipsia, or polyphagia. There is no evidence to support two fasting blood glucose of greater than 125mg% or two random glucose of greater than 200mg% or two separate A1c's of greater than 6.5%. The only evidence he has of any abnormal blood findings was a blood sugar of 163mg%, which was nonfasting, random, which was done on February 27, 2010, and an A1c at the same time of 6.2. Without any blood tests today, one is unable to make any decisions with regards to whether he is diabetic or not, and it appears that he is not having his blood done because of reasons discussed above. The examiner also provided the following assessment: Diabetes, type 2. Not enough laboratory or clinical evidence to support a diagnosis of diabetes type 2 at this stage. The veteran definitely has an increased susceptibility for diabetes type 2 or could be classified as prediabetic. His last blood glucose level I have been able to get was on February 27, 2010, and was 163, and his A1c at the time was 6.2, both of which do not confirm a diagnosis of diabetes. Unable to find any other information which could help as to the criteria he was diagnosed diabetic originally. DID NOT FOLLOW UP ON TESTS. Approximately two weeks later in August 2010, the examiner provided an addendum to the prior report, as the Veteran had forwarded copies of blood tests from Kaiser. The examiner stated as follows: This veteran was seen by me on August 17, 2010. He did not have any of his blood tests taken and he forwarded me copies of blood tests that were done at Kaiser where he gets his treatment. On these blood tests, there was no evidence to show of an increased risk for diabetes, since he had a slightly raised A1c of 6.2 and a fasting blood sugar of 101mg%. There was no evidence to support the diagnosis of actual diabetes such as fasting blood glucose above 126 mg% on two different occasions. No random blood greater than 200mgrs%. In September 2010, the AOJ denied service connection for diabetes on the basis that although he was pre-diabetic, a diagnosis of diabetes was not of record. In so finding, the AOJ acknowledged the February 2010 notation of new onset diabetes but concluded that the VA examiner's careful explanation as to why the evidence did not support a diagnosis of diabetes was entitled to greater evidentiary weight in the overall analysis. The Board observes that the AOJ should have requested that the Veteran release his Kaiser health records, as he had reported the initial diagnosis of diabetes was made by his primary care provider at Kaiser. VA was thus on notice of the existence of these records prior to the September 2010 decision. That the AOJ failed to request these records represents less than thorough claim development. It does not equate to CUE, however. A breach in the duty to assist in developing evidence does not constitute clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377 (1994). In Caffrey, the Court held that the VA's breach of duty to assist caused an incomplete record but not an incorrect record. The Veteran's attorney argues that the AOJ improperly weighed the evidence of record and failed to give the Veteran the benefit of the doubt. He also argues that the VA medical records in 2010 show the Veteran was given a glucose meter and sent to diabetes management classes, which he asserts constitutes further evidence of actual diabetes in 2010. It is argued that it is "nonsensical to think that [the Veteran's] PCP, responsible for his general health and wellness, would prescribe diabetes treatment to a patient who did not have diabetes." Taking the last point first, it is important to note that in 2010, the adjudicator reviewed the Veteran's VA medical records directly from the VA Medical Center's database and prepared a memorandum for the file summarizing what the reviewer felt were the salient points, which did not include information about a glucometer or diabetes classes. The only pieces of evidence noted in the memorandum were the February 2010, laboratory values consistent with a new onset of diabetes and an April 2010 notation which reflected a new diagnosis of noninsulin-dependent diabetes mellitus. As these records pre-dated the September 2010 decision, the Board presumes that the adjudicator reviewed them. However, the records were not physically added to the Veteran's claims file until many years later, which is when the attorney was able to review them. Nonetheless, the Board holds that the arguments made by the Veteran's attorney amount to simple disagreement with how the facts are weighed and evaluated, rather than to an undebatable error which would have manifestly changed the outcome of the case. The evidence of record in September 2010 indicated that the Veteran had been diagnosed with diabetes by competent professionals. As such, there was undoubtedly competent evidence of a diagnosis of diabetes mellitus type 2. However, the fact that diabetes mellitus, type 2, was diagnosed by competent professionals does not, ipso facto, establish that this was a correct diagnosis. Rather, the record also included an opinion by another competent professional who held that the criteria to diagnose diabetes mellitus, type 2, had not been met. This examiner identified the specific criteria for diagnosing type 2 diabetes mellitus, and explained why the record at that time did not establish a diagnosis of type 2 diabetes mellitus. This examiner specifically explained that the diagnosis in the VA clinic setting did not meet the criteria for diagnosing type 2 diabetes mellitus. In particular, the primary laboratory values which were available to the VA examiner in 2010 did not support a diagnosis of diabetes, but rather indicated a pre-diabetic condition. It would even appear that a complete understanding of the Veteran's situation was hampered by his own refusal to undergo blood testing at the time of the examination. Quite simply, there was competent medical opinion for and against a finding that the Veteran manifested type 2 diabetes mellitus. The Veteran's attorney argues that the positive evidence should have been afforded "great weight" and that the evidence of record in 2010 was in "equipoise." However, the AOJ had before it competent medical opinion discussing why the favorable evidence did not establish a diagnosis of diabetes mellitus, type 2. That the AOJ chose to place greater evidentiary weight upon the explanation of the VA examiner rather than the comparatively cursory notations in the treatment records was a reasonable adjudicative determination. It is well-established in Veteran's law that a difference of opinion as to the facts or a disagreement with the original rating and its interpretation of the facts is not the type of administrative reversible error contemplated under 38 C.F.R. § 3.105(a). The error alleged in this case amounts to no more than a difference of opinion in how the available evidence was weighed. With regard to the assertions that the issuance of a glucometer together with the recommendation that the Veteran attend diabetes classes establishes a diagnosis of diabetes, the Board respectfully disagrees. These factors could equally well indicate a pre-diabetic condition, as such education is equally helpful to forestalling the development of full-blown diabetes as to treating diabetes. The fact that the Veteran had been prescribed Metformin, even though he had stopped taking it, was part of the record only through his statements to the VA examiner. Therefore, the VA examiner considered this prescription and did not deem it significant enough to alter the examiner's opinion that the Veteran did not warrant a diagnosis of diabetes mellitus given the laboratory values and clinic findings of record at that time. Continued on next page In sum, the Veteran has not established the presence of clear and unmistakable error in the September 2010 AOJ decision. The allegations raised amount to differences of opinion in how the available evidence was weighed, rather than a misapplication of the law to the facts or an undebatable error in analysis. The appeal must be denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.