Citation Nr: 1632039 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 12-29 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. The propriety of the severance of service connection for diabetes mellitus. 2. The propriety of the severance of service connection for diabetic nephropathy. 3. The propriety of the severance of service connection for peripheral neuropathy, right upper extremity, with carpal tunnel syndrome. 4. The propriety of the severance of service connection for peripheral neuropathy, left upper extremity. 5. The propriety of the severance of service connection for peripheral neuropathy, right lower extremity. 6. The propriety of the severance of service connection for peripheral neuropathy, left lower extremity. 7. The propriety of the severance of service connection for erectile dysfunction. 8. The propriety of the severance of service connection for special monthly compensation SMC based on loss of use of creative organ. 9. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2009 and September 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The April 2009 rating decision denied service connection for psychiatric disorder and the September 2010 rating decision severed service connection for diabetes mellitus. It also severed service connection for diabetic nephropathy, peripheral neuropathy of the bilateral upper and lower extremities with right carpal tunnel syndrome, erectile dysfunction, and special monthly compensation for loss of use of a creative organ (hereinafter referred to as related conditions). After review of internal documents indicated that the Veteran's awards were still active in November 2011, the RO, by a December 2011 decision, again severed service connection for the disabilities listed herein, effective March 1, 2012. This matter was remanded in February 2015 for further development. Prior to that time, the Veteran had a formal RO hearing in November 2011 and failed to report for a Board videoconference hearing in November 2013. FINDINGS OF FACT 1. The evidence does not show that the grant of service connection for diabetes mellitus and related conditions was clearly and unmistakably erroneous. 2. The evidence shows that the Veteran has depressive disorder and anxiety disorder which were caused or aggravated by his service-connected diabetes mellitus and/or related conditions; and that he does not have PTSD. CONCLUSIONS OF LAW 1. As the criteria for severance of service connection are not met, severance of service connection for diabetes mellitus and related conditions was not proper and restoration of these service connection benefits is warranted. 38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.105(d), 3.307, 3.309, 3.310 (2015). 2. The criteria for service connection for depressive disorder and anxiety disorder, but not PTSD, are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303. Pertinently, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including diabetes mellitus Type II, are presumptively service-connected if they manifest to a degree of 10 percent or more at any time after service; additionally, there is a presumption of Agent Orange exposure given proof of service in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Severances 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). 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, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994). 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 claim 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, 20 Vet. App. 482. The same standards apply in a determination of clear and unmistakable error in a prior decision and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection; however, for the latter case the reviewable evidence is not limited to that which was before the RO at the time of the challenged rating decision. See Daniels, 10 Vet. App. at 480; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). The 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. Stallworth, 20 Vet. App. at 488. Simply to allege clear and unmistakable error on the basis that previous adjudications improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo, 6 Vet. App. at 44. In severing service connection for diabetes mellitus and related conditions in December 2011, the RO found, in essence, that there was insufficient evidence to show that the Veteran served in Vietnam [so as to trigger the presumption of service incurrence of diabetes mellitus based on Agent Orange exposure (which is presumed once service in Vietnam during the Vietnam Era is satisfactorily proven)]. The RO focused on evidence, including official service records, which it had obtained in an effort to verify or negate the Veteran's presence in Vietnam during the Vietnam Era. It made no mention of the lay statements of record and in fact stated that there was "no evidence" (which was false) that the Veteran had served in the Republic of Vietnam. Setting foot on land in Vietnam as an active member of the service during the Vietnam Era is sufficient to trigger the presumption of Agent Orange exposure therein. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009). The Board finds in this case that there is enough evidence in the record concerning the Veteran setting foot on land in Vietnam during the Vietnam Era that a discussion of his other assertions/evidence that he was exposed to herbicides at U-Tapao air base will not be necessary. Reports of negative, conflicting, or potentially conflicting evidence on the matter of whether the Veteran set foot in Vietnam during his Vietnam Era service will not be mentioned in great detail, because when there is some of the necessary positive evidence in a clear and unmistakable error case, how much negative evidence is present is irrelevant. The Board concedes, for the sake of judicial economy, that there is sufficient competent evidence of record to show that the Veteran has the disorders which are the subject of severance. The RO has not predicated its severance on such, and there appears to be ample evidence of their existence in the record, including as reflected by a November 2007 VA examination report. Service department records do not establish that the Veteran set foot on land in Vietnam during the Vietnam Era. Service records show that he had over 13 months of foreign service and was part of the 809th Engr Bn stationed in Thailand, and list his specialty as a cook and a first cook. However, the Veteran indicated in June 2007 that he had served in Vietnam during the Vietnam Era and that he had been exposed to Agent Orange while there. In November 2008, the Veteran indicated that in February 1968, he went on a convoy to Saigon, Vietnam with several others from the service, providing names. One of the buddies he named indicated in a September 2009 statement received in October 2010 that in February 1968, he went to Saigon with the Veteran and at least 4 of the same several others whom the Veteran named, on a convoy. The Veteran testified in November 2011 that he had been on convoys to Vietnam to carry building materials. In a May 2015 statement received in July 2015, the Veteran indicated that in June or July 1968, a sergeant who worked under another sergeant approached those who were drivers (including the Veteran, he claims) looking for volunteers to carry building materials into Vietnam. He indicated that he went there on convoys which consisted of drivers, carpenters, cooks, and mechanics mostly. He also indicated during his March 2016 VA psychiatric examination that he took a trip to Vietnam on temporary duty while he was part of the 809th Engr Bn, after being asked if he wanted to go there, and he went on to describe what he purportedly saw while there. Lay persons are competent to provide evidence on things which are within their perceptive capabilities. Falzone v. Brown, 8 Vet. App. 398, 403-5 (1993). This would obviously include where they have been as witnessed by their own eyes. The lay evidence of record indicating that the Veteran went to Vietnam during service is clearly competent, and as such, is capable of being believed and necessarily has some probative value. It can be sufficient proof of where the Veteran was in service for the purposes of the severance appeals at issue. There is no absolute requirement in an Agent Orange exposure presumptive disease case under 38 U.S.C.A. § 1116 that there be service department records showing that a Veteran served in Vietnam during the Vietnam Era, in order for the presumption of Agent Orange exposure in Vietnam during the Vietnam Era to be triggered. In light of the law and evidence, the Board finds that the grant of service connection for diabetes mellitus and related conditions was not clearly and unmistakably erroneous. There was some competent evidence at the time the claims were granted, and there is more now, that the Veteran set foot in Vietnam during the Vietnam Era. That is sufficient to block the severance of the service connection for diabetes mellitus and related conditions under the circumstances of this case. In sum, as the determination to award service connection for diabetes mellitus and related conditions was not clearly and unmistakably erroneous, severance was improper, and restoration of service connection for diabetes mellitus and related conditions is necessary. Any notice and/or procedural defects are moot, as restoration of the benefits at issue has been granted in full. Psychiatric disorders claimed to be service-connected The Veteran does not claim, and the evidence does not show, that his currently diagnosed depressive and anxiety disorders were present in service. However, the March 2016 VA psychiatric examination report shows that he has them, and, when reasonable doubt is resolved in the Veteran's favor as is required, contains sufficient evidence for the Board to conclude that they were either caused or aggravated by the service-connected diabetes mellitus and/or related conditions. The examiner in March 2016 indicated that the Veteran's depressive disorder and anxiety disorder are related in part to his health, which is obviously affected by his diabetes mellitus and/or related conditions. Accordingly, service connection will be granted for depressive disorder and anxiety disorder. The March 2016 VA examination report, however, demonstrates that the Veteran does not have PTSD, as the examiner indicated that some of the diagnostic criteria necessary for a diagnosis of PTSD are not met. Service connection cannot be granted for a disorder which is not in existence. In the absence of a current disability, service connection cannot be granted for PTSD. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). ORDER Severance of service connection for diabetes mellitus, type II; diabetic nephropathy; peripheral neuropathy, right upper extremity, with carnal tunnel syndrome; peripheral neuropathy, left upper extremity; peripheral neuropathy, right lower extremity; peripheral neuropathy, left lower extremity; erectile dysfunction; and special monthly compensation based on loss of use of a creative organ was improper, and so restoration of these benefits is granted. Service connection for depressive disorder and anxiety disorder as secondary to the service-connected disabilities at issue is granted. Service connection for PTSD is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs