Citation Nr: 1329048 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-23 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether the severance of service connection for peripheral neuropathy of the left lower extremity was proper. 2. Whether the severance of service connection for peripheral neuropathy of the right lower extremity was proper. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). A hearing before a Decision Review Officer (DRO) at the RO was held in May 2009. A Board hearing was held before the undersigned in September 2012. Transcripts of these hearings are of record. FINDING OF FACT The evidence does not show that the grant of service connection for peripheral neuropathy of the right and left lower extremities was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of service connection for peripheral neuropathy of the left lower extremity was not proper; restoration of service connection is warranted. 38 U.S.C.A. §§ 1110, 5109A (West 2002); 38 C.F.R. §§ 3.105(d), 3.310 (2013). 2. The severance of service connection for peripheral neuropathy of the right lower extremity was not proper; restoration of service connection is warranted. 38 U.S.C.A. §§ 1110, 5109A (West 2002); 38 C.F.R. §§ 3.105(d), 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS In a May 2006 rating decision, the RO granted service connection for peripheral neuropathy of the bilateral lower extremities, assigning each lower extremity separate 40 percent ratings, effective February 21, 2006. The rating decision granted service connection based on a finding that peripheral neuropathy was secondary to the Veteran's service-connected diabetes mellitus. The Board initially finds that the severance was procedurally proper and that the RO complied with its notification obligations. 38 C.F.R. § 3.105(d) (2008). In September 2008, the RO proposed to sever service connection for peripheral neuropathy. The Veteran responded and, in May 2009, a DRO hearing was held. In June 2009, the RO issued a rating decision severing service connection, effective September 1, 2009. Based in part on a May 2008 VA examination report, the RO concluded that the Veteran's lower extremity symptoms were not related to his service-connected diabetes and, thus, not entitled to service connection. The Veteran asserts that the severance was improper since his VA treatment providers have diagnosed him with peripheral neuropathy related to his diabetes and continue to treat him for that disability. For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection will be severed only where evidence establishes that a previous grant of service connection was clearly and unmistakably erroneous, with the burden of proof being upon VA. Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). A change in diagnosis may be accepted as a basis for severing service connection if the examining 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. 38 C.F.R. § 3.105(d) (2013). Clear and unmistakable error (CUE) is an error of fact or law that is undebatable and "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, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). In determining whether service connection will be severed, VA must consider evidence that was generated after the original decision was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006) (a "severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current 'evidence establishes that [service connection] is clearly erroneous'" (quoting 38 C.F.R. § 3.105(d)). As noted, the RO determined severance was warranted based in part on a May 2008 VA examination report in which the examiner concluded that recent nerve conduction test results were normal and did not show evidence of diabetic peripheral neuropathy. The examiner noted that X-rays showed calcifications in the plantar fascia and degenerative joint disease of the feet. From these test results, he opined that pain in the feet was not due to the Veteran's diabetes, but was musculoskeletal in nature, based on a combination of metarsalgia, plantar fasciitis, and degenerative joint disease, all aggravated by morbid obesity. Other evidence of record contradicts these findings as it shows the Veteran's peripheral neuropathy is, at least in part, due to his service-connected diabetes. A June 2010 VA neurology consultation report provides a diagnosis of mild polyneuropathy, largely small fiber neuropathy. The neurologist noted that with diabetes, especially early on in the disease course, polyneuropathy is often predominantly a small fiber neuropathy that often will not be evident on EMG/NCS testing. He noted the Veteran did not have a needle examination previously and that this type of testing will sometimes reveal distal denervation changes suggestive of axonal neuropathy. He concluded that even a normal EMG/NCS test would not rule out a small fiber neuropathy, which more likely than not was present. Regarding the etiology of the neuropathy, he noted that a prior B12 deficiency and alcohol use could contribute to the diagnosis, but it was most likely due to diabetes. In a July 2010 addendum report, the neurologist further explained that June 2010 EMG/NCS testing was abnormal and showed findings consistent with a mild length-dependent axonal polyneuropathy typical to diabetes. The test results revealed no electrophysiologic evidence for lumbosacral radiculopathy in the right lower extremity. A September 2008 letter from the Veteran's VA primary care physician, Dr. S.C., and a May 2010 letter from VA physician, Dr. G.V.W., also indicate that the Veteran's peripheral neuropathy may be, at least in part, due to his service-connected diabetes. Therefore, the evidence of record does not establish that the award of service connection for peripheral neuropathy of the bilateral lower extremities was clearly and unmistakably erroneous. Although evidence indicates that the Veteran's bilateral lower extremity disability may not be due solely to his service-connected diabetes and may have some musculoskeletal or other components, the June and July 2010 neurologist's reports clearly support that neuropathy is most likely due to service-connected diabetes. Hence, the determination to grant service connection for peripheral neuropathy as secondary to service-connected diabetes was not CUE and the severance of service connection for peripheral neuropathy of the right and left lower extremities, effective September 1, 2009, was improper. The appeal is granted and service connection is restored. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The severance of service connection for peripheral neuropathy of the left lower extremity was improper, and restoration of service connection is granted. The severance of service connection for peripheral neuropathy of the right lower extremity was improper, and restoration of service connection is granted. ____________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs