Citation Nr: 1040303 Decision Date: 10/27/10 Archive Date: 11/01/10 DOCKET NO. 07-20 659A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether severance of service connection for diabetes mellitus, type II, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1965 to April 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes the Veteran had requested a hearing before the Board at the Cleveland RO. A hearing was scheduled for March 2010, but the Veteran, prior to the hearing, notified the Cleveland RO that he had moved to Connecticut and wished to "withdraw" his hearing request. Around the same time, however, the Veteran's representative submitted a February 2010 statement on behalf of the Veteran indicating the Veteran still desired a hearing before the Board, but that the hearing be located in Connecticut. Accordingly, it is unclear whether the Veteran still desires a hearing before the Board. In any case, the Board finds no prejudice in proceeding with this decision here in light of the favorable opinion and grant of the full benefits sought on appeal. FINDING OF FACT The grant of service connection for diabetes mellitus, type II, was not undebatably erroneous. CONCLUSION OF LAW The grant of service connection for diabetes mellitus, type II, was not clearly and unmistakably erroneous and severance thereof was not proper. 38 U.S.C.A. §§ 1110, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be severed only where evidence establishes that a previous grant of service connection was 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. See 38 C.F.R. § 3.105(d). In this case, all of the proper administrative actions were undertaken by the RO as described above. An unappealed decision of the RO or the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of CUE. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. §§ 5109A, 7111; 38 C.F.R. §§ 3.105, 20.1400. The United States Court of Appeals for Veterans Claims (the Court) has defined CUE as "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). "To prove the existence of clear and unmistakable error as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). There is a three-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). The Court has clarified that although the same standards applied in a determination of CUE in a final decision are applied to a determination whether a decision granting service connection was the product of CUE for the purpose of severing service connection, § 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, § 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 this case, the Veteran was granted service connection for diabetes mellitus, type II, based on his service in Vietnam and presumptive exposure to Agent Orange in a January 2003 rating decision. The rating decision awarded a 20 percent rating for the Veteran's diabetes mellitus, because, at that time, the medical evidence of record indicates the Veteran was diagnosed with diabetes since the 1990s and was on insulin and a restricted diet. At the time of the decision, records from the 1990s related to the original diagnosis were not of record. Rather, the decision was based on VA outpatient treatment records from 2002 and 2003 indicating the Veteran was on insulin for diabetes mellitus, type II, and military records confirming the Veteran served in Vietnam during the Vietnam Era. At the time of the Veteran's initial diagnosis of diabetes, the Veteran indicates he was over 300 pounds. Thereafter, he became disciplined with his eating habits and exercise, and stabilized his weight to 192 to 200 pounds. The VA outpatient treatment records from 2002 to 2009 indicate because of his change in lifestyle, his diabetes slowly got under control to the point where, most recent treatment records indicate he is completely off medications. Also significant, since the January 2003 grant of service connection, physicians (to include VA physicians) have disagreed on whether the Veteran's diabetes mellitus is type I or type II. The RO originally severed the Veteran's service connection for diabetes mellitus, type II, in August 2006 finding the Veteran is diagnosed with diabetes mellitus, type I, and not type II and, therefore, the grant was based on an incorrect application of the law and an undebatable error of fact. Thereafter, the most recent medical evidence indicates due to the Veteran's strenuous diet and exercise regimen, the Veteran has excellent control of his blood sugar levels and is completely off all medications for diabetes. Accordingly, the RO most recently upheld the severance of service connection for diabetes mellitus, type II, in an August 2009 Supplemental Statement of the Case (SSOC) on the basis that the most recent medical evidence indicates the Veteran no longer has diabetes. In short, the basis of the Veteran's severance initially dealt with a finding by the RO that the Veteran actually has type I diabetes and, therefore, application of the Agent Orange Act of 1991 was clearly and umistakenly erroneous. Most recently, however, it appears the RO continued the severance of service connection for diabetes mellitus, type II, on the basis that the Veteran no longer has diabetes and, therefore, service connection for an undiagnosed disorder was clearly and unmistakably erroneous. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). First and foremost, service connection requires evidence of a current disability. Id. Therefore, the first pertinent inquiry here is whether the Veteran is currently diabetic. The Board concludes he is. A VA outpatient treatment record dated April 2009 indicates the Veteran's diabetes is in "normal range and I would say he does not have diabetes at this time - but with his family history this may change at any time." This same VA physician, however, indicated in a March 2009 statement as follows: [The Veteran] is a diabetic who has remarkably low A1cs (excellent sugar control) only because of his strenuous workouts. When he slows down in the future (which all of us do), he will need to be on medication again. There is no cure for diabetes. At the time of the January 2003 rating decision granting diabetes mellitus, the medical evidence indicated the Veteran had a long- standing diagnosis of diabetes mellitus requiring insulin. The mere fact that now the Veteran no longer needs medication to control his diabetes simply does not rise to the stringent level of "clear and unmistakable error." While there is one comment in one treatment record where a VA physician uses a word choice indicating the Veteran no longer has diabetes, a prior statement from the VA physician clearly indicates the Veteran will always be a diabetic with or without medication. For purposes of severance, it is not proper to re-weigh medical evidence. Rather, there must be undebatable error with the January 2003 grant "which, had it not been made, would have manifestly changed the outcome at the time it was made." See Damrel, 6 Vet. App. at 245; Wilson, 11 Vet. App. at 386. Accordingly, the Board finds this basis of severance improper. The initial severance of service connection in August 2006, however, was primarily based on a finding that a statutory presumption was incorrectly applied. As explained above, the original grant of service connection in January 2003 was done under the authority of the Agent Orange Act of 1991, allowing for the presumption of service connection for certain conditions based on exposure to herbicides used in Vietnam, to include diabetes mellitus, type II. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6) and 3.309(e). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002). The Veteran's military records confirm the Veteran served in Vietnam during this time frame and, therefore, the RO awarded service-connection for diabetes mellitus, type II, as a matter of presumption. Thereafter, as explained above, there was some medical disagreement on whether the Veteran's diabetes mellitus was type I or type II. The presumption indicated above is inapplicable as to type I diabetes and, therefore, the RO severed the Veteran's service connection for diabetes mellitus, type II, citing CUE with the January 2003 rating decision incorrectly applying the Agent Orange Act of 1991 and finding no direct basis for service connection. The second pertinent inquiry then is whether the claims folder sufficiently shows a change in the Veteran's diagnosis or some other CUE rendering application of the Agent Orange Act of 1991 improper. The Board concludes it does not. The medical evidence at the time of the January 2003 rating decision included VA outpatient treatment records from 2002 indicating the Veteran had a long-standing diagnosis of type II diabetes and was on insulin. Thereafter, the Veteran filed a claim for an increased rating for his diabetes indicating, among other things, that he was experiencing numerous neurological complications due to his diabetes. The Veteran was afforded a VA examination in September 2005 where the examiner concluded due to blood work findings that the Veteran's diabetes was actually type I and not type II. The RO requested a follow-up medical opinion requesting clarification of the Veteran's diagnosis. In October 2005, a different VA physician reviewed the Veteran's blood work and laboratory findings and agreed with the September 2005 VA examiner's assessment. Specifically, it was noted that the Veteran's C peptide count was normal, which would ordinarily be elevated in type II diabetics. The October 2005 VA physician opined that the Veteran more appropriately fits the "type one Diabetes category." In support of his claim, the Veteran submitted a private treatment records from Dr. Gebhardt who, after his clinical work- up, opined that the Veteran was a type II diabetic. Dr. Gebhardt found significant that the Veteran was diagnosed as an overweight adult in the 1990s and, therefore, more appropriately fit the type II category. The RO afforded the Veteran an additional VA examination in April 2006, where the examiner concluded the Veteran was a type I diabetic. VA outpatient treatment records from 2006 and 2007 indicate the Veteran is a type II diabetic and, indeed, a June 2007 VA outpatient treatment record indicates the Veteran is "definitely not [a] Type 1" diabetic. As indicated above, most recent treatment records in 2009 do not focus on whether the Veteran is type I or type II because the Veteran was found to no longer need medication. In short, there is considerable disagreement between VA and private physicians of whether the Veteran is a type I or type II diabetic. As noted above, in order to sever benefits, VA must show that the January 2003 rating decision's ultimate conclusion to grant service connection for diabetes mellitus, type II was clearly and unmistakably erroneous. Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In this case, this rigid standard simply has not been met. The medical evidence does raise question as to whether the Veteran has type I or type II diabetes, but does not indicate the January 2003 grant of service connection was based on undebatable error. For these reasons, the Board concludes severance of service connection for diabetes mellitus, type II, was not proper and should be restored. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, redefined VA's duty to assist a veteran in the development of a claim. Inasmuch, however, as the propriety of the severance of service connection involves a determination as to clear and unmistakable error (CUE), the VCAA is not for application. See Livesay v. Principi, 15 Vet. App. 165 (2001); see also Parker v. Principi, 15 Vet. App. 407 (2002). In any case, in light of the favorable opinion rendered here, any deficiencies in notice or assistance were not prejudicial to the Veteran. ORDER The severance of service connection for diabetes mellitus, type II, was not proper and, therefore, service connection is restored. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs