Citation Nr: 1013572 Decision Date: 04/09/10 Archive Date: 04/29/10 DOCKET NO. 08-14 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether the severance of service connection for peripheral neuropathy of the bilateral lower extremities, associated with diabetes mellitus, type II, was proper. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable disability rating for service-connected peripheral neuropathy of the bilateral lower extremities, associated with diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1972, with National Guard service thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Louis, Missouri. By way of background, the Veteran was originally granted service connection for peripheral neuropathy of his bilateral lower extremities by a May 2007 rating decision, at which time the Veteran's neuropathy was rated as noncompensable. He then filed a timely notice of disagreement with that rating decision, asserting that his disability was more disabling than reflected by the noncompensable disability rating. Thereafter, VA nerve conduction studies failed to reveal evidence of peripheral neuropathy, and therefore an April 2008 rating decision proposed to sever service connection for peripheral neuropathy. Service connection was subsequently severed, as reflected in a March 2009 rating decision. Thus, the issue on appeal, originally referred to as an increased disability rating claim, has been rephrased to reflect the remedy currently sought on appeal. The issue of an initial compensable disability rating for service-connected peripheral neuropathy of the bilateral lower extremities, associated with diabetes mellitus, type II, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence does not show that the grant of service connection for peripheral neuropathy of the bilateral lower extremities, associated with diabetes mellitus, type II, was clearly and unmistakably erroneous. 2. The Veteran did not report experiencing tinnitus during service or for approximately 34 years after service; the only medical opinion of record fails to relate the Veteran's tinnitus to service. CONCLUSIONS OF LAW 1. The criteria for the severance of service connection for peripheral neuropathy of the right and left lower extremities, associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.103, 3.105 (2009). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With regard to the Veteran's claim for restoration of service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to his service-connected diabetes mellitus, VA's notice and assistance provisions are inapplicable. Severance of service connection requires application of the clear and unmistakable evidence standard, and the VCAA and its implementing regulations, codified in part at 38 C.F.R. § 3.159, are not applicable to clear and unmistakable error claims. See Livesay v. Principi, 15 Vet. App. 165 (2001). With regard the Veteran's service connection claim for tinnitus, VA's notice requirements were fulfilled by a letter dated in March 2006, which was sent prior to the issuance of the rating decisions on appeal and which advised the Veteran of the criteria for establishing service connection. Regarding VA's duty to assist, the Board finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issues on appeal has been obtained. The Veteran's service, VA, and private treatment records have been obtained, and the Veteran has not identified any relevant, available evidence that is not of record. The Veteran was examined for VA purposes in connection with his tinnitus claim, with a medical opinion provided, and he was offered the opportunity to testify at a hearing before the Board, but he declined. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that service connection may 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). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2009). In addition, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection is available for numerous diseases, including diabetes mellitus and acute and subacute peripheral neuropathy, provided that the disability became manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval or air service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Severance of Service Connection for Peripheral Neuropathy of the Right and Left Lower Extremities, Associated with Diabetes Mellitus, Type II By rating action dated in May 2007, the RO granted entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, associated with diabetes mellitus, type II. The evidence of record at the time of this rating decision included the Veteran's service treatment records, which failed to reference any neuropathic symptoms or diagnoses. A June 2006 VA treatment record reflected the Veteran's reports of experiencing occasional tingling sensation, but no numbness, in his upper and lower extremities, with no neurological or physical abnormalities of the Veteran's extremities found on physical examination. An April 2007 VA diabetes mellitus examination report reflects that the Veteran reported mild tingling and an occasional cold sensation of his lower extremities. Monofilament testing was within normal limits. The diagnosis was mild peripheral neuropathy, symptomatic without functional impairment. The examiner added that more likely than not, the peripheral neuropathy was secondary to the diabetes mellitus based on the fact that he had no other disease state which would cause neuropathy. Following the grant of service connection in May 2007, in June 2007, the Veteran's representative filed a notice of disagreement as to the assigned initial disability rating for the service-connected peripheral neuropathy of the bilateral lower extremities. In January 2008, the Veteran underwent a VA peripheral nerves examination during which an electromyography was conducted. Nerve conduction studies of both feet and legs was within normal limits, though, the interpreting physician stated that the numbness, tingling, and cold sensation that the Veteran reported experiencing in his lower extremities might be related to peripheral vascular disease, as there was no evidence of peripheral neuropathy. (The record reflects that service connection for peripheral vascular disease has also been considered and denied, as a subsequent VA examination failed to diagnose the Veteran with peripheral vascular disease, as well; nevertheless, that issue is not presently before the Board on appeal.) In an April 2008 rating decision, the RO proposed to sever service connection for peripheral neuropathy of the bilateral lower extremities on the basis that the grant of service connection for this condition was clearly and unmistakably erroneous. The RO reasoned that its grant of service connection for peripheral neuropathy was clearly and unmistakably erroneous because the Veteran was not shown to have a current diagnosis of peripheral neuropathy. In a May 2008 letter, the RO notified the Veteran of the proposed action, informed him of his right to submit evidence and appear for a personal hearing, and allowed him a period of 60 days required under 38 C.F.R. § 3.105(d). In response, in his May 2008 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran reiterated that he had been diagnosed with peripheral neuropathy, and that the RO had based its proposed rating on a VA examination by a doctor that had seen him for only a few minutes. A VA diabetes mellitus examination report dated in October 2008 shows that the Veteran continued to report tingling in his feet that would occur on a regular basis. The examiner noted the prior electromyography which showed no electrophysiological evidence consistent with peripheral neuropathy. In a March 2009 rating decision, the RO formally severed service connection for peripheral neuropathy of the bilateral lower extremities, associated with diabetes mellitus, type II. Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (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. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In Stallworth, the United States Court of Appeals for Veterans Claims (Court) recognized that 38 C.F.R. 3.105(d) contemplates consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. Id. at 488; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). In fact, the Court noted that the regulation specifically allows a change in medical diagnosis to serve as a basis for severance. Indeed, in Stallworth, the Court, quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997), reiterated, "If the Court were to conclude that . . . a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record." Id. at 488. The Stallworth Court added, "Consequently, the severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current evidence established that service connection is clearly erroneous." Id. (Emphasis in original). The Court has stated that clear and unmistakable error 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. See Fugo v. Brown, 6 Vet. App. 40, 43 (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 appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth; Allen. In this case, the Board finds that the Veteran has consistently reported that he has had numbness and tingling of the right and left lower extremities. A lay person, the Veteran is competent to report observing such symptoms. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge); see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). As such, because he is competent to report having experienced numbness and tingling of the right and left lower extremities, and given that the Board finds his account to be credible, it was reasonable for the RO and the April 2007 VA examiner to have accepted his lay reports. In addition, the April 2007 VA examiner, relying on that reported history, and based on physical examinations of the Veteran, diagnosed him as having mild peripheral neuropathy. Thus, the RO had a tenable basis to conclude that the Veteran had peripheral neuropathy of the bilateral lower extremities associated with his service-connected diabetes mellitus. In this case, the RO severed service connection essentially on the ground that the January 2008 electromyography had shown no evidence of current peripheral neuropathy. Here, the medical evidence predating the RO's grant of service connection shows a diagnosis of peripheral neuropathy, and the evidence post-dating its severance continues to reflect the Veteran's competent reports of numbness and tingling of the right and left lower extremities. Thus, after a careful review of the record, the Board finds that VA has not met the high evidentiary burden of showing clear and unmistakable error, and thus the severance of service connection was improper. Tinnitus The Veteran is seeking service connection for tinnitus, which he contends is the result of his exposure to acoustic trauma during service and which claims he has experienced since service. The medical evidence of record reflects that the Veteran is currently diagnosed with tinnitus. Thus, the relevant inquiry is whether the Veteran's tinnitus is etiologically related to service. A review of the Veteran's service treatment and personnel records reflects that the Veteran was exposed to acoustic trauma in service, and the Board acknowledges that the Veteran is currently service connected for bilateral hearing loss secondary to his service-related acoustic trauma. However, while the Veteran's treatment records, medical examinations, and medical history reports reflect the Veteran's report of experiencing hearing loss during service, the records fail to reflect that the Veteran reported or sought treatment for tinnitus during service. Rather, the Veteran consistently denied having ever experienced any ear trouble, aside from hearing loss, in his numerous reservist reports of medical history, and the first report of tinnitus of record is reflected in the Veteran's instant service connection claim, received in January 2006. The Veteran was afforded a VA audiological examination in May 2007, during which he reported experiencing moderate bilateral constant tinnitus, which he attributed to his inservice noise exposure. Based on the Veteran's report, the examiner diagnosed him with tinnitus but opined that it was less likely than not that the Veteran's tinnitus was related to service. An addendum to this opinion provided a supporting rationale and cited the Veteran's failure to report tinnitus during service or during any of his numerous reservist examinations in support of the opinion. The examiner concluded that the failure to report tinnitus despite the Veteran's ample opportunities to do so made it less likely than not that the his tinnitus was attributable to service. An April 2008 private treatment record reflects the Veteran's report of exposure to acoustic trauma during service and experiencing tinnitus in the 40 years since service. The treating physician noted a diagnosis of tinnitus but did not offer a medial opinion regarding its etiology. The Board finds that the VA examiner's opinion is probative, as it is consistent with the evidence of record reflecting the Veteran's first report of tinnitus in 2006, approximately 34 years after his discharge from active service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Moreover, none of the Veteran's reservist treatment records or medical examinations reflect that the Veteran reported tinnitus (although he reported other hearing symptomatology, namely hearing loss), and the examiner cited the Veteran's numerous opportunities to report tinnitus when opining that his tinnitus was less likely than not related to service. Accordingly, the Board finds that the VA examiner's medical opinion is probative as it was definitive, based upon a thorough review of the Veteran's claims file, and supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board specifically acknowledges its consideration of the lay evidence of record when adjudicating the Veteran's claim, including the Veteran's submitted statements reflecting his belief that his tinnitus, which he reports experiencing since his Vietnam service, is related to acoustic trauma incurred during service. The Board notes that the Veteran is competent to report experiencing the symptoms of tinnitus in service and continually over the approximate 38 years since his discharge from service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). However, as discussed above, the Veteran's current reports of experiencing tinnitus in service are belied by his contemporaneous denials of experiencing any ear problems aside from hearing loss while in service or for many years thereafter. While the Board may not discount the Veteran's account of experiencing tinnitus during and since service based on a lack of contemporaneous treatment in service, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), in the instant case, the Veteran specifically denied having ever experienced any ear trouble on numerous occasions, and the evidence of record reflects that he first reported and sought treatment for tinnitus only in conjunction with the instant claim for monetary benefits. Furthermore, the Veteran is not competent to diagnose tinnitus or relate its etiology to service, see Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992), and the only medical opinion of record fails to relate the Veteran's tinnitus to service. Thus, given that the more competent, probative evidence of record fails to relate the Veteran's tinnitus to service, a basis for granting service connection for tinnitus has not been presented, and the Veteran's appeal is therefore denied. ORDER Severance of service connection not being proper, service connection for peripheral neuropathy of the right and left lower extremities, associated with service-connected diabetes mellitus, is restored. Service connection for tinnitus is denied. REMAND As discussed above, in an May 2007 rating decision, the RO granted service connection for peripheral neuropathy of the right and left lower extremities, associated with service- connected diabetes mellitus, and assigned an initial noncompensable disability rating, effective January 26, 2006. In June 2007, the Veteran submitted a timely notice of disagreement as to the assigned initial disability rating. The Veteran thereafter offered arguments in support of his claim for a higher rating. In May 2008, the RO issued a Statement of the Case as to the issue of severance of service connection, and as discussed above, the RO subsequently severed service connection. The RO has not issued the Veteran a Statement of the Case with respect to the claim of entitlement to an increased disability rating. In light of the determination restoring service connection for peripheral neuropathy of the right and left lower extremities, associated with service-connected diabetes mellitus, the Board has no discretion, and is obligated to remand this issue to the RO for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following action: The RO/AMC must issue the Veteran a Statement of the Case with respect to his claim seeking an initial compensable disability rating for his service- connected peripheral neuropathy of the right and left lower extremities, associated with service-connected diabetes mellitus, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs