Citation Nr: A21019117 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 200305-72343 DATE: December 1, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1968. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision by a Department of Veterans Affairs Regional Office (RO). In a March 2020 VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)), the Veteran timely appealed the above-identified January 2020 rating decision and requested the evidence submission lane. As explained on the VA Form 10182, the Evidence Submission option entails review of the evidence of record of the time of the prior decision and evidence submitted within 90 days of the March 5, 2020, election of the Evidence Submission option. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In the January 2020 rating decision, the Regional Office (RO) made an implicit finding that new and relevant evidence sufficient to readjudicate the claim, under 38 C.F.R. § 3.156, had been received. Under the AMA, the Board is bound by the favorable finding that new and relevant evidence was received to warrant readjudication of the claim. 38 C.F.R. § 3.104. Accordingly, a discussion as to whether new and relevant evidence sufficient to readjudicate the claim is not required herein. Service Connection In general, service connection may be established for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a), (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has also established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). Generally, a veteran who, during active military service, served in the Republic of Vietnam or the Demilitarized Zone of Korea; or who operated, maintained, or served aboard certain U.S. Air Force aircraft during the Vietnam era shall be presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The law in this area significantly changed following Procopio v. Wilkie, 913 F.3d 1371, 1381 (Fed. Cir. 2019) (en banc), which overruled earlier precedent and held that veterans of the Vietnam era who served within the 12-nautical-mile limit of Vietnam's territorial sea are entitled to a presumption of exposure to herbicides such as Agent Orange. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Following Procopio, Congress enacted, and the President signed, the Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 ("the Act")). The Act further clarified "presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam." A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for diabetes mellitus, type II The Veteran claims he is entitled to service connection for diabetes mellitus due to exposure to herbicide agents in Vietnam. The Veteran is presumed to have been exposed to herbicide agents due to service in the Republic of Vietnam. 38 C.F.R. § 3.307. The service medical records do not show any complaints, treatment, or diagnosis of diabetes during service. Post service, a March 2019 VA treatment record documents that the Veteran had an elevated A1C of 6.3 percent and that he was prescribed Metformin as medication. The VA clinician noted that the Veteran had an impaired fasting glucose and that A1C would have to be 6.4 percent to considered diabetic. A VA treatment record documents that the Veteran's A1C level increased to 6.5 percent in November 2019. In January 2020, a VA examiner reviewed the Veteran's records and examined the Veteran to conclude that the Veteran did not have a diagnosis of diabetes mellitus. The examiner considered the evidence that the Veteran had a recent A1C level of 6.5 percent and that he was prescribed metformin. However, the examiner ultimately concluded that the Veteran does not have a diagnosis of diabetes mellitus at this time. The examiner cited to a 2-hour plasma glucose score of 180 as the reason for why the Veteran was not diagnosed with diabetes mellitus. The Board finds that the evidence of record does not provide any medical basis for finding that the Veteran is currently diagnosed with diabetes. The Veteran states that he experiences symptoms of diabetes. However, the evidence does not show any diagnosed disability or medical findings of disability that would constitute a disability for which service connection could be established. The Board acknowledges that a March 2019 VA clinician noted that the Veteran would need an A1C level of 6.4 percent to be considered diabetic. While the Board notes that the Veteran does have an A1C level above 6.4 percent, the Board concludes that the January 2020 VA examiner considered the Veteran's 6.5 percent A1C level and still concluded that the Veteran did not have a diagnosis of diabetes mellitus. First, the Board notes that the January 2020 VA examiner examined the Veteran and reviewed his blood works while the March 2019 VA clinician made a general statement that A1C of 6.4 was required to have a diagnosis of diabetes mellitus. Second, the Board notes that the January 2020 VA examiner relied on the results of the 2-hour plasma glucose results to conclude that the Veteran did not have a diagnosis of diabetes mellitus. Thus, the Board affords great probative weight to the January 2020 VA examiner's findings that the Veteran did not have a current disability of diabetes mellitus. Under applicable regulations, the term disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). None of the competent evidence of record demonstrates that the Veteran is currently diagnosed with diabetes mellitus. In the absence of a clear diagnosis of a current disability, or any abnormality which is attributable to some identifiable disease or injury during service, an award of service connection is not warranted. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134 (1994). In this case, the Veteran does not have a medical diagnosis of diabetes mellitus. The Veteran has not submitted any medical evidence suggesting that a diagnosis of diabetes mellitus is warranted. Because there was no actual disability diagnosed at any time since the claim was filed or contemporary to the filing of the claim, and there remains no current evidence of the claimed disability, no valid claim for service connection for diabetes exists. Accordingly, the presumptive provisions for herbicide exposure are not available as there is no diagnosis of type II diabetes mellitus, the only form of diabetes that is a presumptive disease pursuant to 38 C.F.R. § 3.309(e). As the preponderance of the evidence is against the claim for service connection for diabetes, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.