Citation Nr: 1143804 Decision Date: 11/30/11 Archive Date: 12/06/11 DOCKET NO. 09-39 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether severance of service connection for hepatitis C was proper. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from December 1967 to December 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Reno, Nevada, Regional Office (RO) of the Department of Veterans Affairs (VA) that severed service connection for hepatitis C. FINDINGS OF FACT 1. In a January 2004 rating decision, the RO granted service connection for Hepatitis C. 2. The RO proposed severance of service connection for Hepatitis C in August 2007 and the Veteran received written notice of the proposed severances by letter dated in September 2007. 3. The RO, April 2008, severed service connection for Hepatitis C, effective July 1, 2008, and the Veteran filed a timely appeal to that decision. 4. The January 2004 award of service connection for Hepatitis C was not clearly and unmistakably erroneous. CONCLUSION OF LAW As the criteria for severance of service connection are not met, severance of service connection for hepatitis C was not proper. 38 U.S.C.A. §§ 105, 1110, 5109A, 5112(b)(6), (10) (West 2002); 38 C.F.R. §§ 3.1(m), 3.105(d), 3.301 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). As the Board has granted the full benefits sought with respect to the issue herein decided, there is no need to explain VA's duties to notify and assist. Law and Regulations for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2011). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Severance of Service Connection The Veteran seeks restoration of service connection for Hepatitis C. The Veteran's contentions were crystallized in testimony provided at a videoconference hearing before the undersigned in September 2011. At that time, it was asserted by the Veteran and his representative that the two conflicting medical opinions should, at least, place the evidence in equipoise, giving the benefit of the doubt to the Veteran such that service connection should be restored. Review of the record shows that service connection was granted by rating decision dated in January 2004. At that time, the record included VA outpatient treatment records in 2000 showing that the Veteran had a history of alcohol abuse and intravenous drug use. Hepatitis C was demonstrated in 2002. The record showed that the Veteran had served as a Military Policeman in the Republic of Vietnam where, he stated, he was exposed to wounded soldiers and human blood and bodily fluids. The Veteran was examined by VA in a November 2003. At that time, it was specifically noted that the Veteran's claims file was reviewed. The examiner rendered a medical opinion that, given the Veteran's history of contact with human blood or human blood products while in service, it was at least as likely as not that the Veteran's hepatitis C, which was typed and diagnosed years later, resulted from this exposure during service. The examiner stated in his report that the Veteran had denied a history of intravenous drug usage. Based upon this medical opinion, and the nature and circumstances of the Veteran's service, the RO granted service connection for hepatitis C in the January 2004 rating decision. VA must follow specific regulatory provisions governing severing service connection awards. The provisions of 38 C.F.R. § 3.105 direct, in pertinent part, that service connection will be severed only where evidence establishes that it 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. Id. 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. Id. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. Here, the record reflects that the Veteran received timely notice of the proposed reduction in September 2007, of the final rating action in April 2008, and that severance was effective beginning in July 2008. In order to sever a grant of service connection, VA must demonstrate not only that VA has followed the applicable procedural safeguards, but that the grant of service connection was clearly and unmistakably erroneous. The evidentiary standard for clear and unmistakable error (CUE) has been analyzed in a number of opinions by the United States Court of Appeals for Veterans Claims (Court). Most of these address the appeals of claimants seeking a finding of CUE in a past denial of benefits. However, the Court has held that the standard is equally applicable to VA where the issue is severance of service connection based on CUE. Once service connection has been granted, 38 C.F.R. § 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof. Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned"). There is a three(3)-part test to determine whether a prior decision is the product of 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 v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); Wilson v. West, 11 Vet. App. 383, 386 (1998). Although the same standards applied in a determination of CUE in a final decision are applied to a determination as to whether a decision granting service connection was the product of CUE for the purpose of severing service connection, 38 C.F.R. § 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. In fact, 38 C.F.R. § 3.105(d) specifically states that "[a] change in diagnosis may be accepted as a basis for severance," clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). In March 2007, an examination was conducted by the same VA examiner who had previously examined the Veteran and rendered the November 2003 medical opinion. At that time, the examiner again reviewed the Veteran's claims folder and rendered an opinion that it was more likely than not that the Veteran had contracted hepatitis C as a result of intravenous drug usage years after service, rather than the duties that the Veteran performed during service. Based upon this second medical opinion, the RO proposed, then severed, service connection for hepatitis C based on CUE. The August 2007 proposal to sever service connection found that the November 2003 medical opinion was based upon inaccurate information, specifically the Veteran's use of intravenous drugs subsequent to service. The rating that severed service connection was dated in April 2008. It was found that, as willful misconduct, the Veteran's well documented history of intravenous drug abuse after service could reasonably be found to be the cause of his hepatitis C. See 38 C.F.R. § 3.1(m). The April 2008 severance decision found that reasonable minds could not differ on this so that the original grant of service connection was based on CUE and service connection should be severed. As noted above, to uphold a finding of CUE, 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." Damrel, 6 Vet. App. at 245. Here, the rating decision issued by the RO in January 2004 was based upon the Veteran's history of having been exposed to blood and blood products during combat in the Republic of Vietnam. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The January 2004 rating decision further relied upon a medical opinion that the hepatitis C was related to this blood exposure, an opinion that was rendered after review of the Veteran's claims file in which he admitted to post-service intravenous drug usage in VA outpatient treatment records dated in 2000. The rating decisions that severed service connection did so based upon a new medical examination, by the same examiner who originally provided the medical nexus opinion upon which service connection was initially based. They found that the original opinion was based upon an inaccurate history and that the second opinion was clearly correct. While not specifically stated, the determination of CUE appears to have been premised on a change in diagnosis pursuant to 38 C.F.R. § 3.105(d). It was specifically stated that service connection was based upon the Veteran's willful misconduct of intravenous drug use. As noted, however, review of the record shows that the Veteran's post-service history of intravenous drug usage was clearly available to the examiner in November 2003. The examination report specifically stated that the Veteran's claims folder had been reviewed by the examiner. This same information was available to the examiner when the second opinion was made. In fact, the November 2007 examination offered a second opinion, not in actuality a differential diagnosis. Therefore, the Board finds that the provisions of 38 C.F.R. § 3.105(d) as it relates to CUE based upon a new diagnosis for a service-connected disability is not for application. The Board finds that the opinions rendered by the VA examiner in November 2003 and November 2007, by their very nature, demonstrate that the question of relationship between the development of hepatitis C and service is open to interpretation and, as such, debatable and not a ground for a determination of CUE. Therefore, the Board finds that the alleged error was not "undebatable" and, as such, there was no CUE made in granting service connection in the January 2004 rating decision. For these reasons, the Board finds that the severance of the award of service connection for Hepatitis C was improper, and the criteria to restore service connection for hepatitis C have been met. ORDER As the severance of service connection for hepatitis C was improper, the appeal for restoration of service connection for hepatitis C is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs