Citation Nr: 18144327 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-24 464 DATE: October 24, 2018 ORDER The severance of service connection for diabetes mellitus type II from December 1, 2012 to April 28, 2014 was improper, and restoration of service connection is granted. The severance of service connection for diabetic neuropathy in the left lower extremity was improper, and restoration of service connection is granted. The severance of service connection for diabetic neuropathy in the right lower extremity was improper, and restoration of service connection is granted. Service connection for diabetic retinopathy as secondary to the service-connected diabetes mellitus, is denied. Service connection for erectile dysfunction, including as secondary to the service-connected diabetes mellitus is denied. New and material evidence not having been received, the appeal to reopen service connection for an acquired psychiatric disorder, to include anxiety disorder and depression, is denied. FINDINGS OF FACT 1. In August 2008, the Veteran was diagnosed with diabetes mellitus type II and diabetic peripheral neuropathy in the lower extremities; in a May 2009 rating decision, the Regional Office (RO) granted service connection for diabetes mellitus and diabetic neuropathy in the lower extremities, effective June 30, 2008. 2. Upon receipt of evidence suggesting that the Veteran does not have diabetes, the RO proposed to discontinue service connection for diabetes mellitus and diabetic neuropathy in a June 2012 rating decision; the RO implemented severance of service connection for diabetes mellitus and diabetic neuropathy in the September 2012 rating decision on appeal; notice of the rating decision was mailed in September 2012, with severance effective December 1, 2012. 3. Severance was based on medical evidence that inadequately discussed the facts, findings, and reasons supporting a conclusion that the Veteran’s initial diabetes diagnosis was clearly erroneous, as is required for severance based on a change of diagnosis under 38 C.F.R. § 3.105(d). 4. The RO’s failure to comply with the requirements set forth in 38 C.F.R. § 3.105(d) renders the severance of service connection for diabetes mellitus and diabetic neuropathy void ab initio. 5. The Veteran is not currently diagnosed with diabetic retinopathy. 6. The Veteran is currently diagnosed with erectile dysfunction; the current erectile dysfunction is not etiologically related to active service; the currently diagnosed erectile dysfunction was not caused by, or worsened beyond its normal progression by, the service-connected diabetes mellitus. 7. In an unappealed May 2010 rating decision, the RO denied reopening of service connection for an acquired psychiatric disorder on the basis that the evidence did not have any tendency to show a medical nexus to service; evidence received since the May 2010 rating decision is new to the claims file, but does not have any tendency to establish a nexus between an acquired psychiatric disorder to active service. CONCLUSIONS OF LAW 1. The severance of service connection for diabetes mellitus type II from December 1, 2012 to April 28, 2014 is void ab initio, and service connection for diabetes mellitus will be restored. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5112(a); 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309. 2. The severance of service connection for diabetic neuropathy in the left lower extremity is void ab initio, and service connection for diabetic neuropathy in the left lower extremity will be restored. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5112(a); 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309. 3. The severance of service connection for diabetic neuropathy in the right lower extremity is void ab initio, and service connection for diabetic neuropathy in the right lower extremity will be restored. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5112(a); 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309 4. The criteria for service connection for diabetic retinopathy, including as secondary to the service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.159. 5. The criteria for service connection for erectile dysfunction, including as secondary to the service-connected diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.159. 6. The May 2010 rating decision denying reopening of service connection for an acquired psychiatric disorder became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 7. New and material evidence has not been received to reopen service connection for an acquired psychiatric disorder, to include anxiety disorder and depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 1969 to December 1989. In May 2013, the Veteran submitted a timely Notice of Disagreement as to the September 2012 rating decision, which in pertinent part, implemented severance of service connection for diabetes mellitus effective December 1, 2012. In a March 2016 rating decision, service connection for diabetes mellitus was once again granted, effective April 28, 2014. To date, no Statement of the Case (SOC) has been issued as to the issue of whether severance of service connection for diabetes mellitus from December 1, 2012 to April 28, 2014, was proper; however, as the Board’s instant decision below grants restoration of service connection for diabetes mellitus from December 1, 2012 to April 28, 2014, remand for issuance of a SOC is not necessary. 38 C.F.R. § 19.9(d)(3). 1. Severance of service connection for diabetes mellitus type II from December 1, 2012 to April 28, 2014 2. Severance of service connection for diabetic neuropathy in the left lower extremity 3. Severance of service connection for diabetic neuropathy in the right lower extremity Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), 3.304. Service connection based on herbicide exposure will be presumed for certain specified diseases, to include diabetes mellitus, that become manifest to a compensable degree within a specified period of time. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Once service connection has been granted, it can be severed only upon the Secretary’s showing that the rating decision granting service connection is clearly and unmistakably erroneous, and only after certain procedural safeguards have been met. When severance of service connection is considered warranted, a rating decision proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified of the contemplated action at his or her latest address of record, will be furnished detailed reasons for the contemplated action, and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). In this case, the Veteran filed a service connection claim for diabetes and diabetic neuropathy in June 2008. Upon examination during an August 2008 VA examination, the VA examiner diagnosed diabetes mellitus type II and diabetic neuropathy in the lower extremities. Because military personnel records show the Veteran had qualified service in the Republic of Vietnam, service connection for diabetes was presumptively granted in the May 2009 rating decision as the result of herbicide exposure; diabetic neuropathy was granted as secondary to the service-connected diabetes mellitus. The Veteran filed a claim for an increased rating for the diabetes and diabetic neuropathy in October 2011, and underwent another VA examination in May 2012. Although numerous VA treatment records reflect the Veteran’s diabetes was being monitored by a private provider, the May 2012 VA examiner noted that the treatment records that were the basis for the original diabetes diagnosis were not of record. The May 2012 VA examiner found that VA treatment records did not reflect laboratory findings consistent with diabetes and concluded that the Veteran did not have a confirmed diagnosis for diabetes mellitus type II. The May 2012 VA examiner also found no evidence of record or by examination for peripheral neuropathy due to diabetes of either the upper or lower extremities, which is contrary to the August 2008 VA examination report reflecting an earlier electromyography (EMG) and nerve conduction velocity (NCV) test that indicated likely diabetic neuropathy. Based on this change in diagnosis, the RO initiated the severance procedures outlined above. In the June 2012 rating decision, the RO advised the Veteran of its intent to sever service connection for diabetes and, consequently, diabetic neuropathy, on the basis of clear and unmistakable error. The RO explained that the current medical evidence showed that the Veteran did not have a current diagnosis for diabetes mellitus or diabetic neuropathy. In a June 21, 2012 letter, the RO informed the Veteran that he had 60 days to submit additional evidence, and 30 days to request a hearing. The RO also informed the Veteran that he could request a hearing after 30 days, but it would continue with the proposed action. The Veteran did not submit a response or any additional evidence, and in the September 2012 rating decision, the RO determined that the earlier grant of service connection was clearly and unmistakably erroneous and severed service connection for diabetes mellitus and diabetic neuropathy, effective December 1, 2012. While the procedural requirements for severance appear to have been satisfactorily completed, 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. 38 C.F.R. § 3.105(d). Clear and unmistakable error (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 (1993). To determine whether CUE was present 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). CUE is 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). There are differences in application of the standards for severance of service connection and for demonstrating CUE in a prior final VA decision. See Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). VA is not limited to review of the law and the record that existed at the time of the original decision in adjudicating a matter of severance of service connection; that is, the provisions of 38 C.F.R. § 3.105(d) do not limit the reviewable evidence to only that which was before the RO in making its initial service connection award. Further, 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 (citing 38 C.F.R. § 3.105(d)). Importantly, a change in diagnosis may be accepted as a basis for severance action if an 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. The certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). As noted above, a VA examiner diagnosed diabetes mellitus type II and diabetic neuropathy in the lower extremities in August 2008. Although the May 2012 VA examiner explained that the August 2008 VA examiner’s diagnosis of diabetes mellitus and diabetic neuropathy was erroneous because VA treatment records did not show laboratory test results consistent with diabetes, the May 2012 VA examiner ignored the many VA treatment records showing the diabetes was being monitored by a private provider; additionally, VA treatment records noted that the Veteran’s blood sugar levels were in good control by implementing a restricted diet alone. See e.g. October 2009 VA treatment record; January 2010 VA treatment record. Furthermore, a May 2011 VA treatment record shows the Veteran was hospitalized with an admitting diagnosis of a transient ischemic attack, diabetes mellitus, and neuropathy. Importantly, more recent treatment records clearly show the Veteran is currently diagnosed with diabetes mellitus type II such that service connection for diabetes was once again granted effective April 28, 2014. Moreover, the May 2012 VA examiner did not discuss why the August 2008 VA examiner’s diagnosis of diabetic neuropathy was clearly erroneous, despite earlier EMG/NCV test results revealing likely diabetic neuropathy. While the May 2012 VA examiner noted the Veteran had symptoms of neuropathy in the 1990s when there was no suspicion for diabetes, the VA examiner did not explain why or how possible non-diabetic neuropathy that was present in the 1990s necessarily precludes the Veteran from developing diabetic neuropathy later on in life. In cases concerning reductions of benefits and severance of service connection, the Court of Appeals for Veterans Claims (Court) has held that VA’s failure to observe applicable law and consider all relevant evidence renders a reduction decision “void ab initio” and the Court has set them aside as “not in accordance with law.” Brown v. Brown, 5 Vet. App. 413, 422 (1993) (reversing Board’s reduction of disability rating and remanding for Board to reinstate prior rating) (quoting 38 U.S.C. § 7261(a)(3)(A)); see Wilson v. West, 11 Vet. App. 383, 386-87 (1998) (applying same principle to case involving severance of service connection). Once service connection for a disability has been established, there are specific procedural steps that must be taken, and evidentiary thresholds that must be met before service connection for such disability may be severed. In this case, although the procedural steps appear to have been satisfactorily accomplished, on the merits, the RO relied on medical evidence that inadequately addressed whether the diagnoses on which service connection was predicated is clearly erroneous. To the extent that error is implied, the evidence still does not include adequate discussion of the facts, findings, and reasons supporting this conclusion, as is required under the provisions of 38 C.F.R. § 3.105(d). As such, the Board finds that the RO’s failure to comply with the requirements set forth in 38 C.F.R. § 3.105(d) renders the severance of service connection for diabetes mellitus and diabetic neuropathy void ab initio, and service connection for diabetes mellitus will be restored from December 1, 2012 to April 28, 2014, and service connection for diabetic neuropathy in the lower extremities will be restored from the date of severance. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with erectile dysfunction, which is not a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in service symptoms and “continuous” post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 4. Service connection for diabetic retinopathy as secondary to the service-connected diabetes mellitus The Veteran generally contends that service connection for diabetic retinopathy is warranted. See October 2011 Claim. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran is not currently diagnosed with diabetic retinopathy. The Veteran underwent VA examinations in May 2012 and December 2014, the examination reports for which reflect negative findings for diabetic retinopathy. Additionally, a February 2016 VA treatment record shows the Veteran underwent a diabetic retinopathy surveillance examination, which revealed normal findings for both eyes. Because the weight of the evidence demonstrates no current diagnosis of diabetic retinopathy, the claim for service connection for diabetic retinopathy must be denied. 5. Service connection for erectile dysfunction, including as secondary to the service-connected diabetes mellitus The Veteran seeks service connection for erectile dysfunction, including as secondary to the service-connected diabetes mellitus. See October 2011 Claim. Initially, the Board finds that the Veteran is currently diagnosed with erectile dysfunction. See August 2008 VA examination report. After a review of all the lay and medical evidence, the Board finds that the current erectile dysfunction is not etiologically related to active service, and was not caused or worsened beyond its normal progression by the service-connected diabetes mellitus. Service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment for erectile dysfunction during service. During a June 2003 VA examination, the Veteran denied ever being diagnosed with diabetes mellitus and endorsed a history of low testosterone since 1995 and difficulty achieving and maintaining erections. The June 2003 VA examiner assessed erectile dysfunction with low testosterone and luteinizing hormone as shown by laboratory testing. The Veteran underwent another VA examination in May 2012. During the May 2012 VA examination, the Veteran reported a history of low testosterone for the past ten years and taking medication to enhance sexual functioning due to low testosterone many years ago. After examination of the Veteran, the May 2012 VA examiner opined that the assumed erectile dysfunction is less likely than not proximately due to, or the result of, the service-connected diabetes mellitus. The VA examiner explained that treatment records document erectile dysfunction as early as February 2000, at a time when laboratory test results were not consistent with diabetes. Further, the symptoms claimed to be erectile dysfunction had previously been attributed to low testosterone based on laboratory testing. The VA examiner also opined that the current erectile dysfunction was not worsened beyond its normal progression by the service-connected diabetes, based on laboratory test results showing blood glucose levels and A1C levels had been relatively normal since 1996. The favorable evidence of record includes the August 2008 VA examination report, which shows the Veteran reported a history of diabetes since May 2008 and the symptoms of impotence that began two years ago. Upon examination of the Veteran, the August 2008 VA examiner opined that the current erectile dysfunction (that was assumed to be present) was at least as likely as not a complication of the service-connected diabetes because the erectile dysfunction is deemed to be a complication of the diabetes based on the onset of erectile dysfunction in relation to the onset of diabetes; however, the Veteran’s reports during the August 2008 VA examination that the erectile dysfunction had its onset only two years ago, the reported timing for which was the basis of the VA examiner’s positive nexus opinion, is inconsistent with other contemporaneous treatment records discussed above that document erectile dysfunction as early as February 2000. As such, the Board finds that the August 2008 VA examiner’s opinion is of no probative value as it is premised upon an inaccurate factual history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Because the record does not contain any other competent and probative medical opinion establishing a medical nexus between the current erectile dysfunction and active service or to the service-connected diabetes mellitus, the Board finds that the criteria for service connection for erectile dysfunction have not been met. 6. Reopening service connection for an acquired psychiatric disorder Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a May 2010 rating decision, the RO declined to reopen service connection for an acquired psychiatric disorder on the basis that the evidence did not have any tendency to show a medical nexus to service. Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the May 2010 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the May 2010 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records and lay statements, which evidence is new because they have not been previously submitted. The evidence received since the May 2010 rating decision is not material because it does not have any tendency to establish a nexus to military service, so does not raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. While VA treatment records received since the May 2010 rating decision show continuing treatment for a current acquired psychiatric disorder, such treatment records do not contain any competent medical opinion linking the current acquired psychiatric disorder to military service. For the foregoing reasons, the Board finds that the evidence received since the May 2010 rating decision does not relate to a showing of a nexus between an acquired psychiatric disorder to active service; thus, the evidence received since the May 2010 rating decision is not new and material evidence to reopen service connection for an acquired psychiatric disorder, to include anxiety disorder and depression. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel