Citation Nr: 18153543 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-46 628 DATE: November 28, 2018 ORDER The severance of service connection for Parkinson’s disease of the left upper extremity was not proper, and restoration of service connection is granted. The severance of service connection for Parkinson’s disease of the right upper extremity was not proper, and restoration of service connection is granted. The severance of service connection for Parkinson’s disease of the left lower extremity was not proper, and restoration of service connection is granted. The severance of service connection for Parkinson’s disease of the right lower extremity was not proper, and restoration of service connection is granted. FINDINGS OF FACT 1. The award of service connection for Parkinson’s disease of the left upper extremity was not clearly and unmistakably erroneous. 2. The award of service connection for Parkinson’s disease of the right upper extremity was not clearly and unmistakably erroneous. 3. The award of service connection for Parkinson’s disease of the left lower extremity was not clearly and unmistakably erroneous. 4. The award of service connection for Parkinson’s disease of the right lower extremity was not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. Service connection for Parkinson’s disease of the left upper extremity was not properly severed, and the criteria for restoration of service connection are met. 38 U.S.C. §§ 1131, 5112; 38 C.F.R. §§ 3.105, 3.303. 2. Service connection for Parkinson’s disease of the right upper extremity was not properly severed, and the criteria for restoration of service connection are met. 38 U.S.C. §§ 1131, 5112; 38 C.F.R. §§ 3.105, 3.303. 3. Service connection for Parkinson’s disease of the left lower extremity was not properly severed, and the criteria for restoration of service connection are met. 38 U.S.C. §§ 1131, 5112; 38 C.F.R. §§ 3.105, 3.303. 4. Service connection for Parkinson’s disease of the right lower extremity was not properly severed, and the criteria for restoration of service connection are met. 38 U.S.C. §§ 1131, 5112; 38 C.F.R. §§ 3.105, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1971. To the extent that the decision below is fully favorable to the Veteran and is considered a full grant of benefits requested with respect to the issues of whether severance of service connection for Parkinson’s disease of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity was proper, further discussion of the Veterans Claims Assistance Act of 2000 (VCAA), is not necessary at this time. Severance Of Service Connection The Veteran asserts that VA improperly severed service connection for paralysis of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity due to Parkinson’s disease. Entitlement to service connection for paralysis of the bilateral upper and lower extremities due to Parkinson’s disease was awarded in a November 2012 rating decision, effective October 17, 2012. In January 2014, the RO proposed to sever entitlement to service connection, and the severance was effectuated in a July 2014 rating decision, effective October 1, 2014. As the issue on appeal involves the severing of a VA benefit, the procedural actions and protections listed in 38 C.F.R. § 3.105 are for application and were complied with by the RO. The RO proposed to sever service connection in a January 2014 rating decision. The proposed severance was based on a finding of clear and unmistakable error (CUE) in the November 2012 rating decision as the Veteran did not have a definitive diagnosis of Parkinson’s disease. In a January 2014 letter accompanying the January 2014 rating decision, the RO notified the Veteran of the proposed action, informed him of his right to submit evidence and appear for a personal hearing, and allowed him a period of 60 days as required under 38 C.F.R. § 3.105(d). In April 2014, the Veteran requested to appear at a personal hearing, and in May 2014, he presented testimony before the Decision Review Officer. In order to sever a benefit, VA must demonstrate that it was based on CUE (the burden being on the Government), and only where certain procedural safeguards are met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Generally, there is a three-prong test to determine whether a prior decision is the product of CUE: (1) “[e]ither 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,” (2) 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 (3) 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) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); Wilson v. West, 11 Vet. App. 383, 386 (1998). 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 appeal 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. Although the requirements for CUE stated above provide that a determination must be based on the record at the time of the prior adjudication, 38 C.F.R. § 3.105 specifically states that “[a] change in diagnosis may be accepted as a basis for severance,” clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). Thus, the Board is not limited to review of the record and law in existence at the time of the July 2014 rating decision. Whether the severance of service connection for Parkinson's disease of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity was proper In November 2012, the Veteran was granted service connection for paralysis of the bilateral upper and lower extremities due to Parkinson’s disease. The award of service connection was based upon a presumption of exposure to Agent Orange during the Veteran’s active duty service and upon medical evidence showing a diagnosis of Parkinson’s disease with associated symptoms in the extremities. At the time, the evidence of record consisted of a September 2012 DBQ and VA treatment records. The DBQ reflects a diagnosis of Parkinson’s disease with a date of diagnosis of August 21, 2012. The VA treatment records confirm that the Veteran was diagnosed with benign essential tremors and Parkinson’s disease on August 21, 2012 by Dr. Diamond on office visit. After the November 2012 rating decision was issued, additional evidence was associated with the claims file which suggests that the Veteran may not have a diagnosis of Parkinson’s disease. In that regard, VA treatment records from 2012 through 2013 reflect findings by VA neurologists Dr. DeSilva and Dr. Jean-Louis who both opined that the Veteran does not have a diagnosis of Parkinson’s disease, and instead has essential tremor, IgM monoclonal gammopathy with peripheral neuropathy, endocrinological changes, and skin changes which fit the syndrome of POEMS. Private treatment records from the Neurology Department at Mercy Hospital Joplin dating from 2014 through 2015 reflect diagnoses of and treatment for Parkinson’s disease. The records show that the Veteran was being treated and followed for Parkinsonian tremor. Private medical treatment records from the University of Kansas Department of Neurology dated in July 2014 note that the Veteran was referred for a second opinion, and that the diagnoses included tremors and bradykinesia with a history suggestive of Parkinson’s Disease-Essential Tremor syndrome. A January 2016 statement from D. Hopewell, M.D. of the Mercy Clinic Neurology Department at Joplin notes that he has been seeing the Veteran “for Parkinson’s Disease since [his] first evaluation in May 2014.” In April 2017, R. Miles, M.D. of the Mercy Clinic Neurology Department at Joplin stated that the Veteran was “under [her] care for treatment of Parkinson’s Disease. He has been assessed and treated by several Neurologists in this clinic and by the KU Movement Disorder Clinic. He has a firm diagnosis of Parkinson’s Disease and he will continue to be treated as indicated.” VA treatment records from July 2016 note that the Veteran was being treated for mixed tremor with essential parkinsonian characteristics. The diagnosis was Parkinson’s disease, essential tremor. VA treatment records from 2017 note diagnoses of Parkinson’s disease with Parkinson’s tremor. Based upon a thorough review of the evidence of record, the Board finds that the award of service connection for paralysis of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity due to Parkinson’s disease was not clearly erroneous. As noted above, a severance decision focuses not on whether the original rating decision was clearly erroneous, but on whether the current evidence establishes that awarding service connection currently was clearly erroneous. Although there are competing medical opinions as to whether the Veteran currently meets the diagnostic criteria for a diagnosis of Parkinson’s disease, there are several medical opinions in favor of the Veteran’s claim. In that regard, there are the September 2012 DBQ and the 2012 VA treatment records which reflect diagnoses of Parkinson’s disease. Additionally, private treatment records from neurologists with the Mercy Hospital Neurology Department and the University of Kansas Department of Neurology confirm that the Veteran has a diagnosis of Parkinson’s disease. Further, the April 2017 letter from Dr. Miles confirms that the Veteran has “a firm diagnosis of Parkinson’s Disease” based upon the assessment of several neurologists at the Mercy Clinic as well as the KU Movement Disorder Clinic. These medical diagnoses are probative and are based upon examination and treatment of the Veteran. (Continued on the next page)   Given this favorable evidence in support of the Veteran’s claims, the onerous standard necessary to demonstrate a clear and unmistakable error in awarding service connection is not met. In other words, reasonable minds could differ on whether to afford the Veteran the benefit of the doubt and conclude that the probative evidence weighs in favor of accepting the positive medical findings reporting a “firm diagnosis” of Parkinson’s disease. Thus, severance was not proper, and service connection for paralysis of the left upper extremity, right upper extremity, right lower extremity, and left lower extremity due to Parkinson’s disease is restored. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel