Citation Nr: 1648507	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  06-30 139	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Propriety of severance of service connection for diabetes mellitus. 

2.  Propriety of severance of service connection for ischemic heart disease (IHD). 

3.  Propriety of severance of service connection for residual scars due to IHD. 

4.  Entitlement to service connection for diabetes mellitus. 

5.  Entitlement to service connection for IHD. 

6.  Entitlement to service connection for residual scars due to IHD. 

7.  Entitlement to service connection for an eye disability, to include as secondary to diabetes mellitus. 




REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Zi-Heng Zhu, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1969 to December 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 

The issue of entitlement to service connection for an eye disability is REMANDED to the Agency of Original Jurisdiction.


FINDINGS OF FACT

1.  A November 2011 rating decision granted service connection for diabetes, IHD, and scars.

2.  A September 2012 rating decision proposed the severance of service connection for diabetes, IHD, and scars.

3.  A November 2012 rating decision severed service connection for diabetes, IHD, and scars.

4.  The evidence of record does not establish that the November 2011 rating decision that granted service connection for diabetes, IHD, and scars was clearly and unmistakably erroneous as there was competent evidence supporting service connection and thus reasonable minds could differ as to whether service connection was warranted.


CONCLUSIONS OF LAW

1.  As the criteria for severance of service connection are not met, severance of service connection for diabetes mellitus was not proper and restoration is warranted.  38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.105(d), 3.307, 3.309, 3.310 (2016).

2.  As the criteria for severance of service connection are not met, severance of service connection for IHD was not proper and restoration is warranted.  38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.105(d), 3.307, 3.309, 3.310 (2016).

3.  As the criteria for severance of service connection are not met, severance of service connection for residuals scars was not proper and restoration is warranted.  38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.105(d), 3.307, 3.309, 3.310 (2016).

4.  The criteria for dismissal of the appeal for service connection for diabetes mellitus have been met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2016).

5.  The criteria for dismissal of the appeal for service connection for IHD have been met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2016).

6.  The criteria for dismissal of the appeal for service connection for scars have been met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Severance

Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous, with the burden being on the Government to show that the grant of service connection was clearly and unmistakably erroneous.  Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997).  Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law.  Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Graves v. Brown, 6 Vet. App. 166 (1994).

Clear and unmistakable error (CUE) is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error.  Fugo v. Brown, 6 Vet. App. 40 (1993).  To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the claim that, had it not been made, would have manifestly changed the outcome, whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous.   Stallworth v. Nicholson, 20 Vet. App. 482 (2006).

The same standards apply in a determination of clear and unmistakable error in a prior decision and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection; however, for the latter case the reviewable evidence is not limited to that which was before the RO at the time of the challenged rating decision.  Daniels v. Gober, 10 Vet. App. 474 (1997); Allen v. Nicholson, 21 Vet. App. 54 (2007).  The severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence establishes that service connection is clearly erroneous.  Stallworth v. Nicholson, 20 Vet. App. 482 (2006).

Simply to allege clear and unmistakable error on the basis that previous adjudications improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  Fugo v. Brown, 6 Vet. App. 40 (1993).

A September 2011 rating decision granted service connection for diabetes, IHD, and scars due to IHD.

A November 2012 rating decision, in essence, found that the Veteran's active service records demonstrated insufficient evidence to show that the Veteran served in Vietnam so as to trigger the presumption of service incurrence of diabetes mellitus based on herbicide exposure, which is presumed once service in Vietnam during the Vietnam Era is satisfactorily proven.  The RO focused on evidence, including official service records, which were obtained in an effort to verify the Veteran's presence in Vietnam during the Vietnam Era.  In arriving at the conclusion to sever service connection for diabetes, IHD, and scars, the November 2012 rating decision concluded the records at the time of the September 2011 grant for service connection were clearly and unmistakably misinterpreted, and that there was no evidence that the Veteran had served in the Republic of Vietnam, to include inland waters. 

The Board finds that to be correct.  The misinterpretation of a single piece of evidence, the Veteran's active service personnel record, triggered the presumption of herbicide exposure and led to a grant of service connection based on clear and unmistakable error.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  That mistake, however was clear and unmistakable, and was the basis of the decision to grant service connection.  However, the Board nonetheless finds that the grant of service connection was no clearly and unmistakably erroneous upon consideration of the complete evidence of record.

Once service connection has been granted, it can be severed only where the evidence establishes that the grant was clearly and unmistakably erroneous, with the burden of proving by clear and unmistakable evidence being on the Government.  Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997).  The Board finds that language refers not only to the instance of error on which a grant is based, but to any theory of entitlement to service connection, which must be considered to establish that the grant of service connection was the result of clear and unmistakable error.  While it can be clearly and unmistakably established that a misinterpretation of the personnel and deck files of record resulted in the erroneous grant of service connection based on presumptive exposure to herbicides, it is not clear and unmistakable from the evidence of record that service connection would not have been granted under other theories of entitlement. 

Specifically, the Board notes that of record at the time of the September 2011 grant for service connection for all three disabilities, was a private medical opinion asserting a plausible secondary connection between IHD and diabetes, and service-connected posttraumatic stress disorder (PTSD).  The Board notes that service connection may also be established as secondary to an already service-connected disability, when such disability is demonstrated to have been caused or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2016). Allen v. Brown, 7 Vet. App. 439 (1995).  A December 2005 opinion letter from a private medical professional L. F., noted that the Veteran's IHD and diabetes had been aggravated by service-connected PTSD.  The Board finds that letter plausibly establishes entitlement to service connection for the claimed disabilities.  That theory of entitlement was not considered when the RO severed the service connection for diabetes, IHD, and scars.  There is no reason to find that opinion inherently incredible.

The Board recognizes that there is VA medical opinion of record that could be weighed against the December 2005 private medical letter linking PTSD to IHD.  Specifically, in a July 2013 VA medical opinion, the examiner found no relationship between the PTSD and IHD or any heart condition.  While the Board might find that medical opinion more persuasive in adjudicating the claim for service connection for IHD, as secondary to PTSD, that finding would be based on a weighing of the probative value assigned to the contrary medical opinions, and could not amount to clear and unmistakable error, as it would be merely a disagreement in weighing of the evidence.  Additionally, no negative opinion is of record for the Veteran's diabetes, which in the same July 2013 opinion, was explicitly noted as a risk factor for a heart disability.   

Therefore, the Board finds that the evidence of record required weighing of probative value, which is fundamentally not present in a finding of clear and unmistakable error.  An error that is clear and unmistakable is not simply a disagreement with how the facts were weighted or evaluated, but rather, absent the alleged clear and unmistakable error, the outcome would be different.  Fugo v. Brown, 6 Vet. App. 40 (1993).  The Board draws analogy to clear and unmistakable evidence claims brought by a Veteran, who contends that clear and unmistakable error caused a denial of benefits.  In that situation, manifest change in the outcome of the adjudication means that, absent the alleged clear and unmistakable error, the benefit sought would have been granted at the outset.  King v. Shinseki, 26 Vet. App. 433 (2014); Fugo v. Brown, 6 Vet. App. 40 (1993).  The Board, finds that the standard must be that but for the clear and unmistakable error, the benefit sought would have been denied at the outset.  The Board finds that is not clearly and unmistakably shown by the evidence of record.  As there was a competent opinion from a medical professional of record supporting the claim, reasonable minds could differ as to whether service connection was warranted.

Here, the fact that the Veteran's service record demonstrated no service on the land mass of the Republic of Vietnam, or that his vessel was in inland waterways, to trigger the herbicide exposure presumption, is not dispositive of the entire claim.  That error, while clear and unmistakable, only precluded the Veteran from warranting service connection presumptively, but left unaffected other theories of entitlement, to include secondary service connection.  As there was evidence of a plausible secondary connection between diabetes, IHD, and scar, and service-connected PTSD, as noted in a December 2005 private medical opinion letter, the error of granting service connection cannot be considered clear and unmistakable, and therefore severance was improper.  The Board finds it plausible that service connection could have been granted based on that opinion.

Accordingly, clear and unmistakable error that was outcome determinative is not shown and restoration of service connection for diabetes mellitus, IHD, and scars related to IHD is granted.

Service Connection

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  In the present case, in light of the favorable decision with regard to the propriety of the severance of service connection for diabetes, IHD, and scars, service connection for those disabilities has been restored.  Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to the claims for service connection for diabetes, IHD, or scars. Accordingly, the Board does not have jurisdiction to review those appeals and they must be dismissed.


ORDER

Severance of service connection for diabetes mellitus was improper, and restoration is granted.

Severance of service connection for IHD was improper, and restoration is granted.

Severance of service connection for scars due to IHD was improper, and restoration is granted.

The appeal for entitlement to service connection for diabetes mellitus is dismissed. 

The appeal for entitlement to service connection for IHD is dismissed. 

The appeal for entitlement to service connection for scars due to IHD is dismissed. 



REMAND

The Board finds that additional development is required for the remaining claim on appeal for service connection for an eye disability.  Although the Board sincerely regret the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. 

A September 2011 Board decision denied service connection for an eye disability.  The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims.  In a May 2013 Memorandum Decision, the Court vacated and remanded the September 2011 decision denying service connection for an eye disability.  As part of the remand, the Court found that VA did not fulfill the duty to provide the Veteran an adequate VA examination to assess the nature and etiology of the claimed eye disability, to include as secondary to service-connected disabilities, with specific regard to any secondary association with diabetes.  

The Board notes that a remand by the Court confers on the Veteran a right to compliance with the terms of that remand.  Stegall v. West, 11 Vet. App. 268 (1998).  No VA examination of eye disability has been provided to the Veteran since that remand from the Court.  Therefore, a VA eye examination is needed to comport with the directive in the Court's May 2013 Memorandum Decision.  Therefore, the issue must be remanded for further development to include a VA eye examination. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain all VA treatment medical records not already of record.

2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran that are not already of record.

3.  Then, schedule the Veteran for a VA eye examination.  The examiner must review the claims file and should note that review in the report.  Any studies or tests deemed necessary should be performed.  The examiner should provide a complete rationale for any opinions provided.  The examiner should diagnose all eye disabilities found.  The examiner should opine, whether it is at least as likely as not (50 percent or greater probability) that any eye disability was incurred in service or is the result of any incident in service.  Additionally, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any eye disability is due to or the result of service-connected disabilities or any medications taken for service-connected disabilities, to include diabetes.  The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any eye disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected disabilities or any medications taken for service-connected disabilities, to include diabetes.  The examiner should reconcile the opinion with previous opinions.

4.  Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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