Citation Nr: 1126583 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 08-36 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether severance of service connection for dermopathy as secondary to service-connected diabetes mellitus, type II, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from November 1962 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A hearing was held on July 20, 2010, by means of video conferencing equipment with the appellant in Muskogee, Oklahoma, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The RO followed the proper administrative procedures to effectuate the severance of service connection. 3. The record reflects that the November 2005 rating decision's establishment of service connection for dermopathy was clearly erroneous. CONCLUSION OF LAW The criteria for the severance of service connection for dermopathy are met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.105, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order 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); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). However, in this case, the appeal does not arise from adjudication of a claim made by the appellant; rather it arises from a severance of service connection by the RO. Therefore, it arises from action initiated by the RO, not the appellant. Moreover, as will be discussed below, severance of service connection requires compliance with particular notification procedures under the law, and the RO satisfied these requirements in the instant case. In addition, the Board observes that the Veteran was previously sent correspondence in September 2007 which informed him of VA's basic duties to notify and assist and he was afforded the opportunity to present testimony at the July 20, 2010 video conference hearing. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims or, in this case, relevant to the proposed severance. Once this has been accomplished, all due process concerns have been satisfied. Bernard v. Brown, 4 Vet. App. 384 (1993). In view of the foregoing, the Board finds that the Veteran was notified and made aware of the evidence needed to prevent severance of service connection for dermopathy, and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the duty to assist the Veteran has also been satisfied in his case. All medical evidence relevant to the matter herein decided has been obtained. The Veteran was afforded VA examinations in connection with the appeal. Concerning this, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate as the examiners completed physical examinations of the Veteran and provided diagnoses based on a review of the medical evidence of record. In addition, the Board remanded the Veteran's case in August 2010 to provide the Veteran a VA examination. The record shows that the Veteran was afforded a VA examination in December 2010. The examiner reviewed the claims file, performed a physical examination, and responded to the questions posed by the August 2010 remand. Therefore, the examination was adequate and the August 2010 remand directives were completed. See Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. LAW AND ANALYSIS Severance of Service Connection Service connection was established for dermopathy as associated with the Veteran's service-connected diabetes mellitus in the November 2005 rating decision. However, service connection was ultimately severed by the March 2008 rating decision. Under applicable criteria, once service connection has been granted, it can be severed only upon the Secretary's showing that the final rating decision granting service connection was 'clearly erroneous,' and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105(d); see also Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). Specifically, when severance of service connection is 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. 38 C.F.R. § 3.105(d); see Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Initially, the Board notes that the RO followed the proper administrative procedures to effectuate the severance of service connection. Specifically, the Veteran was notified of the proposed severance by the December 2007 rating decision and prior to the effectuation of this severance by the March 2008 rating decision, he had the opportunity to present evidence and argument as to why service connection should not be severed for his dermopathy. Regarding the substantive criteria for severing service connection for a disability, the United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.105(d) places the same burden of proof on VA when it seeks to sever service connection as 38 C.F.R. § 3.105(a) places upon a claimant seeking to have an unfavorable previous determination overturned. See Baughman, 1 Vet. App. at 566. Clear and unmistakable (CUE) 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, 43 (1993). To determine whether CUE was present under 38 C.F.R. § 3.105(a) in a prior determination, either 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; 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 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); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). However, it has been held that although the same standards apply in a determination of CUE error in a final decision under section 3.105(a) and a determination as to whether a decision granting service connection was the product of CUE for the purpose of severing service connection under section 3.105(d), section 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. Daniels, 10 Vet. App. at 480; see also Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). The Court reasoned that because 38 C.F.R. § 3.105(d) specifically states that '[a] change in diagnosis may be accepted as a basis for severance,' the regulation clearly contemplates the consideration of evidence acquired after the original granting of service connection. Thus, '[i]f 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.' Venturella, 10 Vet. App. at 342-43. The provisions of 38 C.F.R. § 3.105(d) states that "A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in 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." Therefore, based on the foregoing, the Board must determine, on the basis of all the evidence of record, whether the Veteran's diagnosis, on which service connection was predicated, is clearly erroneous. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the severance action in this case was proper. The record shows that the November 2005 rating decision established service connection for dermopathy as associated with the Veteran's service-connected diabetes mellitus. The Veteran's dermopathy was considered a noncompensable complication of the service-connected diabetes mellitus under Diagnostic Code 7913. 38 C.F.R. § 4.119 (2010). The evidence in support of this finding included a September 2005 VA examination report, which found, in part, that the Veteran had diabetic mellitus dermopathy, abnormal skin care secondary to the poor foot health. The examiner opined that it was at least as likely as not related to the diabetes mellitus. On physical examination of the skin, it was noted that the Veteran had skin disease in the bilateral underarms and there were large plaques which were hyperpigmented and raised in texture. The extremities revealed atrophic skin changes including thin skin, absence of hair, and dystrophic nails. The examination of the feet showed callused heels and poor nail health. As such, it does appear that the initial award of service connection was consistent with and supported by the evidence of record at that time. However, as already stated, in cases regarding the severance of service connection, the law does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. Daniels, supra; Venturella, supra. Here, subsequent VA treatment records do not reveal any complaints or treatment related to a skin condition. The May 2007 VA examination report shows that the Veteran did not have any signs of skin disease present. However, it was noted that the examination of the extremities revealed bilateral tinea pedis. The examiner opined that the skin condition was not a complication of diabetes. The Veteran was afforded another VA examination in October 2007. The Veteran reported having a skin condition of the legs and feet. Due to his skin condition, he has itching and shedding. The symptoms described occurred intermittently, as often as 3 times monthly, with each occurrence lasting 10 minutes. Over the past twelve months, he has not received any treatment for the skin condition. The Veteran stated that his diabetes does not affect the skin. On examination of the Veteran's skin, the examiner noted that the Veteran had a skin condition of tinea pedis. The skin condition was located on the soles of the feet with the characteristics of exfoliation, crusting, and abnormal texture of more than six square inches. The skin lesions were not associated with systemic disease. The examiner diagnosed the Veteran with bilateral tinea pedis. The examiner stated that a diagnosis of tinea pedis was warranted which was unrelated to diabetes and not aggravated by it. The Veteran was afforded a VA examination in October 2008. It was noted that the Veteran had a stated problem of dermopathy. The Veteran reported that he had seborrhea for several years and that every once in a while, he feels itching and rash in the hairline and around the ears. The examiner noted that there was no skin condition present at the time. There was no treatment in the past twelve months. The Board remanded the Veteran's claim in August 2010 for another VA examination to determine whether the Veteran's original diagnosis of dermopathy was clearly erroneous based on the entire medical evidence of record. The Veteran was afforded a VA examination in December 2010. The examiner reviewed the entire claims file and listed the Veteran's pertinent medical history. The examiner considered the service treatment records, private treatment records, military service, and VA treatment records in arriving at the conclusion. The examiner concluded, after a review of medical records, taking a history, performing a physical examination, and a review of the medical literature, that the Veteran's condition diagnosed as bilateral tinea pedis is less likely as not permanently aggravated or a result of any event that occurred during service including diabetes mellitus and was at least as likely as not a result of post-service contracted tinea pedis and not caused by and/or worsened by an already service-connected disability. The examiner concluded that the diagnosis of dermopathy related to diabetes mellitus was clearly erroneous as there was no evidence in the record that the Veteran has dermopathy. Neither the C&P examinations nor the multiple VA examinations are consistent with dermopathy as described in the cited article. The Veteran had multiple foot examinations on record with no findings consistent with dermopathy. The September 2005 VA examination report noted that there was skin disease of the bilateral underarms with large plaques that were hyperpigmented. That was not consistent with dermopathy. Therefore, the diagnosis is erroneous. The examiner cited an article from the Indian journal of dermatology in arriving at his conclusion. In summary, while the September 2005 VA examination report initially indicated it was possible the Veteran had dermopathy associated with his service-connected diabetes mellitus, the subsequent medical evidence, specifically the December 2010 VA examination report, shows that the initial diagnosis of dermopathy was clearly erroneous. The Board finds that the December 2010 VA examiner's opinion is particularly persuasive as the examiner reviewed all of the medical evidence of record and provided reasons for determining that the initial diagnosis of dermopathy was clearly erroneous. Indeed, the examinations conducted in May 2007 and October 2007 supports the December 2010 VA examiner's opinion by revealing that the Veteran was diagnosed with tinea pedis, not dermopathy. The Board recognizes the Veteran's statements that he has a skin disorder related to his service-connected diabetes mellitus. The Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Here, the issue regarding whether the Veteran has a diagnosis of dermopathy is not a condition capable of lay diagnosis, although its symptoms might be described by a lay person, nor is it the type of condition that can be causally related to a service-connected disability without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Thus, the Board concludes that, although the Veteran is competent to report symptoms, his statements as to whether he has dermopathy related to diabetes mellitus do not constitute competent evidence. Furthermore, the Board finds that the medical evidence of record, consisting of multiple VA examination reports, are the most persuasive evidence of record as the examiners have medical expertise and performed physical examinations of the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). For the reasons stated above, the Board finds that the RO followed the proper legal procedures for severing service connection for dermopathy and that the evidence of record reflects that the initial diagnosis was clearly erroneous. Therefore, the severance action was proper and the appeal must be denied. ORDER Severance of service connection for dermopathy was proper. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs