Citation Nr: 0806253 Decision Date: 02/25/08 Archive Date: 03/03/08 DOCKET NO. 06-12 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE The propriety of the severance of service connection for diabetes mellitus. ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from April 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which severed service connection for diabetes mellitus. The Board notes that, in April 2005, the veteran filed a notice of disagreement with the March 2005 rating decision which granted service connection for diabetes mellitus. The veteran sought a higher initial rating and an earlier effective date. A statement of the case was issued in July 2005. The record reflects that the veteran did not file a substantive appeal within 60 days of the issuance of the statement of the case or within the one year period following the date of notification of the March 2005 rating decision. Therefore, the veteran has not perfected his appeal with respect to the initial rating and earlier effective date issues, and those issues are not presently before the Board. FINDINGS OF FACT 1. A rating decision dated in March 2005 granted service connection for diabetes mellitus on a presumptive basis as a result of exposure to herbicides. 2. A rating decision dated in October 2005 purported to sever service connection for diabetes mellitus. 3. At the time of the October 2005 rating decision, the evidence was in equipoise as to whether the veteran has a confirmed diagnosis of diabetes mellitus. CONCLUSION OF LAW The criteria to sever service connection for the veteran's diabetes mellitus were not met; service connection is restored. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5109A, 5112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.105(d), 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a substantially complete application for benefits, VA must notify the claimant of the information or evidence necessary to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b). In cases involving the severance of service connection, which is an action initiated by the RO as opposed to the veteran, there are particular notification and assistance procedures that VA must perform. 38 C.F.R. § 3.105(d). In the decision below, the Board has restored service connection for diabetes mellitus. Accordingly, regardless of whether VA successfully met its notification and assistance obligations, no harm or prejudice to the veteran has resulted. Propriety of Severance of Service Connection By rating decision in March 2005, presumptive service connection was established for diabetes mellitus, type 2, based on the veteran's presumed exposure to herbicides in Vietnam. See 38 C.F.R. §§ 3.307, 3.309. After the rating, medical evidence came to light calling into question the veteran's diagnosis. Particularly, a July 2005 VA medical opinion found that the veteran's blood glucose levels did not meet the criteria for a diagnosis of diabetes mellitus. The RO then proposed severance of service connection in a July 2005 rating, and the proposed severance was effected in an October 2005 rating. The veteran appeals the severance and seeks restoration of service connection. Service connection will be severed only where evidence establishes that service connection is clearly and unmistakably erroneous (the burden of proof being upon the Government). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. If additional evidence is not received within that period, final rating action will be taken. 38 U.S.C.A. §§ 5109A, 5112(b)(6); 38 C.F.R. § 3.105(d). "Clear and unmistakable error" is defined as 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 later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). The Court of Appeals for Veterans Claims (Court) has propounded a three-pronged test to determine whether clear and unmistakable error (CUE) was present in a prior determination. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions in effect 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 clear and unmistakable error must be based upon the record and law that existed a the time of the prior adjudication in question. Grover v. West, 12 Vet. App. 109, 111-112 (1999); Russell v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, supra at 43- 44. Although the same standards applied in a determination of clear and unmistakable error in a prior decision are applied to a determination of whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection, reviewable evidence in a severance claim is not limited to that which was before the RO in making its initial service connection award. Daniels v. Gober, 10 Vet. App. 474, 480 (1997). After reviewing the evidence, the RO severed service connection for diabetes mellitus based upon the July 2005 VA physician's opinion that the veteran did not meet the criteria for a diagnosis of diabetes mellitus. Essentially, severance was based upon a "change in diagnosis." The law is clear regarding when a change in diagnosis may be accepted as a basis for severance action. In such a case, the examining physician or physicians or other proper medical authority must certify that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. 38 C.F.R. § 3.105(d). This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. The RO based the severance on July 2005 VA medical opinion offered by a VA physician who reviewed the veteran's file. The specialist did not certify that the previous diagnoses of diabetes mellitus (in January 2005 and May 2005) were clearly erroneous. Instead, he found that the veteran's glucose testing results did not meet the criteria for diabetes mellitus. The opinion was based on the results from blood glucose tests performed on July 7, 2005; no further test results or medical history was discussed. As noted, two VA physicians have provided confirmed diabetes mellitus diagnoses. In January 2005, the veteran's VA medical record was reviewed to determine if there was justification to support a diagnosis of diabetes. The reviewing physician provided a confirmed diagnosis of diabetes mellitus which was diet controlled. This opinion took into account the veteran's positive family history for diabetes; significantly, the veteran reported that his mother, brother, and sisters were all diabetic. Upon VA examination in May 2005, the VA examiner provided a diagnosis of diabetes mellitus without complications. Rather than establishing that the veteran's diabetes mellitus diagnosis was clearly erroneous, as required for severance, the evidence of record is in relative equipoise, or balance, on that issue. In this situation, the benefit of the doubt is afforded the veteran with respect to his diagnosis for diabetes mellitus. 38 C.F.R. § 3.102. Because that diagnosis is not clearly erroneous, the severance of service connection was improper, and service connection for diabetes mellitus must be restored. ORDER Restoration of service connection for diabetes mellitus is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs