Citation Nr: 0607653 Decision Date: 03/16/06 Archive Date: 03/29/06 DOCKET NO. 05-32 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to restoration of service connection for diabetes mellitus, type II. ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio in which the RO severed service connection for diabetes mellitus, type II. The veteran, who had active service from January 1968 through August 1969, appealed that decision to the BVA. Thereafter, the RO referred the case to the Board for appellate review. FINDINGS OF FACT 1. A rating decision dated in September 2003 granted service connection for diabetes mellitus, type II, on a presumptive basis as a result of exposure to Agent Orange. 2. A rating decision dated in July 2005 severed service connection for diabetes mellitus, type II. 3. The grant of service connection for diabetes mellitus, type II, was not clearly and unmistakably erroneous. CONCLUSION OF LAW The July 2005 rating decision, wherein the RO severed service connection for type II diabetes mellitus due to Agent Orange exposure, was not proper; thereby restoration of service connection is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.105, 3.159 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that notification and assistance required by 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005) is applicable in a case such as this, it is noted that a cursory review of the record reveals that the veteran has not been specifically provided appropriate notice consistent with the applicable law and regulations. However, given the favorable action taken hereinbelow, there is no further action to be undertaken to comply with the provisions of the VCAA or implementing regulations. In a September 2003 rating decision, the RO granted service connection for diabetes mellitus, type II, and assigned a 20 percent disability rating effective from June 25, 2003. A December 2004 rating decision proposed severing service connection for diabetes mellitus based on clear and unmistakable error; and a July 2005 rating decision severed service connection effective October 1, 2005. The veteran argues that the severance of his benefits was in error. 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. 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) (West 2002); 38 C.F.R. § 3.105(d) (2005). "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 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). In this case, the veteran's service medical records showed no complaints, symptoms or problems associated with his endocrine system or with diabetes mellitus. However, the veteran's service records do show that the veteran served in the Republic of Vietnam during the Vietnam War. Therefore, the veteran was presumed to have been exposed to herbicide agents; and based upon this presumption, service connection for diabetes mellitus was granted in September 2003. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2005). Thereafter, the veteran submitted a claim of entitlement to service connection for peripheral neuropathy that he claimed was secondary to his diabetes mellitus. The RO obtained VA treatment records associated with this claim, dated in January 2004, which contained a medical provider's opinion that the veteran had steroid-induced diabetes mellitus due to his immunosuppressive regiment associated with myelogenous leukemia. See January 2004 VA medical record. In March 2004, the RO requested a VA examination in order to determine whether the veteran's diabetes mellitus was related to leukemia or Agent Orange exposure. The veteran was then afforded several VA examinations in November 2004. After taking a history from the veteran, reviewing his claims file and performing a physical examination, an endocrinologist opined that it was as likely as not that the veteran's diabetes mellitus was related to high doses of glucocorticoid usage associated with a bone marrow transplant. A second endocrinologist opined that it was as least as likely as not that the veteran's diabetes mellitus was secondary to high dose steroids associated with a bone marrow transplantation; and that it was not as likely as not that the veteran had diabetes mellitus secondary to Agent Orange exposure. In response, the veteran submitted a medical statement from Ronald Sobecks, M.D. dated in February 2005 in which Dr. Sobecks stated that although it was possible that the veteran's steroids may have resulted in hyperglycemia, it was also as likely as not that this occurred as a result of an undiagnosed diabetes mellitus that was potentially related to a prior exposure. After reviewing the evidence, the RO severed service connection for diabetes mellitus based upon the medical records and opinions rebutting presumptive service connection due to exposure to Agent Orange. Essentially, severance was based upon a "change in diagnosis," and more specifically, a change in the basis of the diagnosis. The law is clear, however, 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. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. This required certified evidence is not part of the record in the instant case. Significantly, evidence clearly and unmistakably establishing that the veteran did not have diabetes mellitus as a result of Agent Orange exposure was not of record at the time of the July 2005 rating decision severing service connection for diabetes mellitus. In this regard, neither the November 2004 endocrinologists nor the January 2004 VA medical provider certified that the diagnosis upon which service connection had been predicated (the veteran's exposure to Agent Orange) was clearly erroneous. In fact, the January 2004 medical provider did not set provide the basis of his opinion; and the November 2004 endocrinologists utilized a "more likely than not" standard rather than the clearly erroneous standard required. The Board agrees with the conclusion that the medical opinion provided by Dr. Sobecks is less probative than the November 2004 medical opinions since Dr. Sobecks' statement did not provide a complete rationale for his opinion and also appears speculative in nature ("it is also as likely as not that this occurred as a result of an undiagnosed diabetes mellitus that is potentially related to prior exposure")(emphasis added). However, the burden of proof necessary to sever entitlement to a service-connected benefit is upon the Government. In this instance, although there is medical evidence and two medical opinions that indicate on a "more likely than not" basis that the veteran's diabetes mellitus developed as a result of high doses of steroids and not exposure to Agent Orange during service, this evidence does not rise to the level of clear and unmistakable error. The Board must therefore conclude that the July 2005 rating decision, wherein the RO severed service connection for diabetes mellitus, was not proper. Thus, restoration of service connection for diabetes mellitus is warranted. 38 U.S.C.A. §§ 1110, 5103, 5107; 38 C.F.R. § 3.105. ORDER Service connection for diabetes mellitus, type II, is restored; and the appeal is granted. ____________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs