Citation Nr: 21074395 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 05-06 791A DATE: December 15, 2021 ORDER Service connection for type II diabetes mellitus is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran does not have a current diagnosis of type II diabetes mellitus at any time during the pendency of this appeal or recent to filing of the claim. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to October 1970 to include service in the Republic of Vietnam from April 1969 to April 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2003 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for type II diabetes mellitus. The Veteran's notice of disagreement (NOD) was received in January 2004. The RO issued a statement of the case (SOC) in February 2005. The Veteran's VA Form 9, substantive appeal to the Board, was received in March 2005. In April 2009, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a May 2010 Order, the Court vacated the Board's April 2009 decision and remanded the matter pursuant to a May 2010 Joint Motion for Remand (JMR). In October 2010 and February 2014, the Board remanded the case to the RO for further development and adjudicative action. In August 2017, the Board denied the claim. The Veteran appealed to the Court. In a November 2018 Order, the Court vacated the Board's August 2017 decision and remanded the matter pursuant to an October 2018 Joint Motion for Partial Remand. In May 2019, the Board remanded the case to the RO for further development and adjudicative action. In September 2021, the Veteran submitted a VA Form 10182 (Notice of Disagreement) to opt-in to AMA from the February 2021 supplemental SOC (SSOC). VA regulation requires that any AMA election after issuance of a statement of the case or supplemental statement of the case must occur within 60 days from the date of the statement of the case, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. See 38 C.F.R. § 3.2400. In this case, the only way for the Veteran to opt-into the AMA framework from the Legacy appeal with respect to the issue of entitlement to service connection for type II diabetes mellitus was to submit a VA Form 10182 to the February 2021 SSOC within 60 days from the date of that decision. See 38 C.F.R. § 3.2400. The VA Form 10182 submitted in September 2021 was therefore untimely as to February 2021 SSOC, and the appeal remains in the legacy system. ENTITLEMENT TO SERVICE CONNECTION FOR TYPE II DIABETES MELLITUS. The Veteran contends that he has a current diagnosis of type II diabetes mellitus that is presumed to be related to herbicide exposure while serving in the Republic of Vietnam during active duty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of type II diabetes mellitus and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A February 2001 VA treatment record reveals that the Veteran's blood glucose level was 99. A December 2001 VA treatment record shows the Veteran's glucose level was 91. A June 2002 VA treatment record shows that the Veteran was examined for diabetes mellitus. Test results from May 2002 revealed fasting glucose of 98 and two hour postprandial glucose was 119. The physician determined that diabetes mellitus was not found. The June 2002 VA treatment record documented that the physician called the Veteran to provide the results of blood glucose levels and the physician informed the Veteran that he did not have diabetes mellitus based on the results of the blood glucose test. A November 2002 VA examination report documents that the Veteran reported a history of type II diabetes mellitus diagnosed in 2002 and that he was on diet control but was not taking any medication for diabetes. While the examiner lists diabetes as a diagnosis, he did not perform any diagnostic testing to indicate that the Veteran met the criteria for a diagnosis of diabetes. The Veteran's assertion that he was diagnosed with diabetes in 2002 is not supported by the medical record. In fact, the June 2002 VA treatment record clearly shows that the Veteran did not have type II diabetes mellitus and the Veteran was informed of the physician's findings based on blood glucose tests conducted in May 2002. Therefore, this examination is of low probative value regarding the issue of whether the Veteran has a current diagnosis for diabetes. Thereafter, VA treatment records reflect that the Veteran is not diagnosed with type II diabetes mellitus based on examination or laboratory findings. Diabetes was also never listed in a VA problem list throughout the relevant appeal period. A November 2002 VA treatment record documents that the Veteran had a blood glucose level of 94. A November 2002 VA A1c test was 5.6 percent. Blood sugar in October 2010 was 93, which is within normal range. A November 2011 VA treatment record notes that the staff nurse was unable to locate an evaluation for type II diabetes; however, a review of the Veteran's labs shows serum glucose ranging from 93 to 106. An April 2012 VA treatment record documents that the Veteran is diabetic. The Veteran reported that he was on diabetic medication in the past, but he is not now. It appears that the notation that the Veteran is diabetic was based on the Veteran's lay statements and not based on laboratory findings or prior medical records. Another April 2012 VA treatment record notes that the Veteran is not diabetic. The Veteran was issued a glucometer for glucose monitoring in April 2012. A February 2014 VA treatment record documents that the Veteran's glucose was 130, which is considered high. A July 2014 VA treatment record reveals blood glucose was 105. The physician noted to check glucose tolerance test. A November 2014 VA A1c test was 5.7 percent. A January 2015 VA A1c test was 6 percent. In May 2016, a VA A1c test was 5.9 percent. The test results in February 2004, November 2014, January 2015, and May 2016 indicate that the Veteran did not have type II diabetes. A June 2016 VA examination report shows that the Veteran's symptoms did not meet the criteria for a diagnosis of diabetes mellitus. The examiner provided the opinion that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury or event. The examiner stated that although the Veteran reports a diagnosis of diet controlled diabetes along with a tour of active duty in Vietnam with presumed exposure to Agent Orange, a review of the Veteran's glucose and A1C levels from 2002 to the present do not meet diagnostic criteria for a diagnosis of diabetes mellitus, type 2. The report also indicates that the Veteran has not been treated with any anti-diabetes agents or prescriptions. The May 2016 medical opinion is probative and persuasive as to the issue of whether the Veteran had a current diagnosis of type II diabetes mellitus at any time during the relevant appeal period as the examiner provide a clear rationale based on laboratory data and the Veteran's medical history. However, a July 2016 VA optometry treatment note documented that the Veteran presented for annual diabetic eye examination. The optometrist notes that the Veteran was diagnosed with type II diabetes one month ago and his last A1C was 5.9 percent in May 2016. He noted that the Veteran's diabetes was controlled with diet and exercise. The optometrist's impression was diabetes. It appears that this diagnosis was based solely on the Veteran's lay statements and not based on any diagnostic testing for type II diabetes mellitus. Furthermore, a November 2016 VA treatment record documents that the diabetic reminders are not valid for the Veteran, because the diagnosis of diabetes that has been previously entered on the Veteran is not correct. The last hemoglobin was collected in May 2016 and revealed A1c was 5.9 percent. Thus, the medical evidence reflects that the diagnosis documented in July 2016 VA optometrist treatment note was made in error and VA treatment records reflect that the Veteran did not have a current diagnosis of type II diabetes mellitus in 2016. The Veteran underwent another VA examination in January 2021. The VA examiner determined that there is not an official diagnosis of type II diabetes mellitus and the Veteran does not meet the criteria for diagnosis of diabetes. The examiner explained that he reviewed the claims file. A November 2014 optometry note states that the Veteran denied diabetes. The Veteran reported that he was told years ago at the Montgomery VA that he had diabetes mellitus, but he was told here that he did not have it. A1c was 5.9 percent in a May 2016 VA treatment record. An optometry note states the Veteran was diagnosed with diabetes on month ago, controlled with diet and exercise. However, this appears to ba a patient reported diagnosis and the claims file is silent for a diagnosis of diabetes mellitus. The examiner noted that A1 tests were as follows: 6.0 in January 2015, 5.9 in May 2016, and 5.9 in June 2016. The examiner concluded that the Veteran did not meet VA criteria for diabetes mellitus diagnosis. The January 2021 VA medical opinion is persuasive and probative as to the issue of whether the Veteran has s current diagnosis of type II diabetes mellitus as he provided a clear explanation in support of his opinion based on review of the Veteran's claims file, laboratory findings, and general medical knowledge. While the November 2002 VA examiner, April 2014 licensed practical nurse (LPN), and the July 2016 VA optometrist provided a diagnosis of diabetes mellitus, as noted above, there is no indication that they performed a physical examination or any diagnostic tests to confirm the presence of type II diabetes mellitus or relied on a prior laboratory findings to support such diagnosis. Instead, the diagnoses appear to be based on the Veteran's self-reported medical history, which is inconsistent with the other VA treatment records that clearly show the Veteran did not meet the criteria for a diagnosis of type II diabetes mellitus. Accordingly, the Board gives more probative weight to the other VA treatment records associated with the claims file, as well as, findings from the June 2016 and January 2021 VA examiners. Although the Veteran believes he has a current diagnosis of type II diabetes mellitus, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge and the ability to interpret diagnostic medical testing (in this case, blood glucose readings and A1c hemoglobin test results). See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In conclusion the preponderance of the evidence of record shows that the Veteran does not currently have a diagnosis of diabetes at any time during the pendency of appeal or recent to the filing of the claim in October 2002. Thus, entitlement to service connection for type II diabetes mellitus is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.