Citation Nr: 18148959 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-35 129A DATE: November 8, 2018 ORDER The severance of service connection for erectile dysfunction was improper; restoration of service connection for erectile dysfunction is granted. The severance of entitlement to special monthly compensation (SMC) “k” for loss of use of creative organ was improper; restoration of entitlement to SMC(k) is granted. REMANDED Service connection for a renal disorder is remanded. FINDINGS OF FACT 1. An October 2011 rating decision granted service connection for erectile dysfunction and entitlement to SMC(k), effective February 2, 2010. 2. A May 2013 rating decision proposed the severance of service connection for erectile dysfunction and entitlement to SMC(k). 3. A November 2013 rating decision severed service connection for erectile dysfunction and entitlement to SMC(k), effective January 31, 2014. 4. The evidence of record does not establish that the October 2011 rating decision that granted service connection for erectile dysfunction and entitlement to SMC(i) was clearly and unmistakably erroneous as there was competent evidence supporting service connection and entitlement; thus, reasonable minds could differ as to whether such benefits were warranted. CONCLUSIONS OF LAW 1. The criteria for severance of service connection for erectile dysfunction are not met; restoration is warranted. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.105 (2017). 2. The criteria for severance of entitlement to SMC(k) are not met; restoration is warranted. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.105 (201). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to February 1972, and had subsequent service with the Army National Guard. The Veteran had a hearing before the undersigned Veterans Law Judge in October 2018. The Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since July 14, 2010. Reductions 1. Propriety of the severance for service connection for erectile dysfunction and the severance of entitlement to SMC(k). The Veteran contends that the severance of service connection for erectile dysfunction, and subsequently for entitlement to SMC(k) for loss of use of creative organ was improper, since his service-connected diabetes mellitus caused the underlying erectile dysfunction. By way of history, in an October 2011 rating decision, the RO granted service connection for erectile dysfunction (with a noncompensable rating) secondary to diabetes mellitus, and granted SMC(k) due to the erectile dysfunction. The September 2010 VA examiner, in a July 2011 addendum, opined that the erectile dysfunction was at least as likely as not related to diabetes mellitus, based on the diagnosis of diabetes mellitus in 2006 and the first complaint of erectile dysfunction in 2007. In the May 2013 rating decision, the RO found that new evidence showed treatment for Viagra to treat erectile dysfunction in March 2004, but that the Veteran did not have a diagnosis of diabetes mellitus until 2007. A VA examiner subsequently found that erectile dysfunction clearly and unmistakably existed prior to diabetes mellitus and was not aggravated by diabetes mellitus. The RO subsequently, in a November 2013 rating decision severed service connection for erectile dysfunction and entitlement to SMC(k), finding that erectile dysfunction was not incurred in or caused by service or a consequence of service-connected diabetes mellitus. The RO found that medical evidence showed that the erectile dysfunction developed prior to the development of diabetes mellitus and was not permanently aggravated by it. As service connection for erectile dysfunction was no shown, SMC(k) predicated on service connection of erectile dysfunction was also not indicated. Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous, with the burden being on the Government to show that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. 3.105. Clear and unmistakable error (CUE) 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. Fugo v. Brown, 6 Vet. App. 40 (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, whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). 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. Id. 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, supra. Here, although the RO found that erectile dysfunction pre-existed diabetes mellitus and not caused or aggravated by it, the current record is not clear. In a July 2011 VA examination addendum review, the VA examiner found that diabetes mellitus was found in April 2006 and erectile dysfunction documented May 2007. Therefore, it was at least as likely as not that the erectile dysfunction was caused by his diabetes mellitus. The September 2011 VA examiner found that erectile dysfunction was due to diabetes mellitus. The February 2013 VA examiner found that erectile dysfunction was pre-existing and not aggravated by diabetes mellitus, as supported by the Veteran’s lab work and trends. In a December 2013 opinion, Dr. A.O. found that the Veteran has erectile dysfunction which is associated with the organ effects of his long-standing diabetes mellitus. In a December 2013 opinion, Dr. A.M. similarly found erectile dysfunction was associated with organ effects of long-standing diabetes mellitus and found that he had diabetes mellitus since 2006. In a September 2018 medical record, Dr. D.W. found erectile dysfunction was secondary to diabetes mellitus. The error as to erectile dysfunction pre-existing diabetes mellitus was clear and unmistakable, only precluded the Veteran from warranting service connection as caused by diabetes mellitus. However, although the February 2013 VA examiner found that it was not aggravated by diabetes mellitus, there is also other medical evidence of plausible aggravation of erectile dysfunction. The error of granting service connection (and thus entitlement ot SMC(k)) cannot be considered clear and unmistakable, and therefore, severance was improper. The Board finds it plausible, based on the evidence specific to this case, that service connection could have been granted based on other medical evidence of record. Accordingly, clear and unmistakable error that was outcome determinative is not shown and restoration of service connection for erectile dysfunction and entitlement to SMC(k) is granted. REASONS FOR REMAND 1. Service connection for a renal disorder is remanded. Regarding the claim of entitlement to service connection for a renal disorder, the Veteran submitted a timely notice of disagreement with a May 2013 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to service connection for a renal disorder. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio