Citation Nr: 21004074 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-01 366 DATE: January 25, 2021 ORDER 1. The severance of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy was proper and the appeal is denied. 2. The severance of service connection for peripheral neuropathy of the right upper extremity was proper and the appeal is denied. 3. The severance of service connection for peripheral neuropathy of the left upper extremity was proper and the appeal is denied. 4. The severance of service connection for diabetic nephropathy with hypertension was proper and the appeal is denied. 5. The severance of service connection for peripheral neuropathy of the right lower extremity was proper and the appeal is denied. 6. The severance of service connection for peripheral neuropathy of the left lower extremity was proper and the appeal is denied. 7. The discontinuance of Special Monthly Compensation (SMC) for loss of use of the creative organ was proper and the appeal is denied. 8. The discontinuance of Dependents’ Educational Assistance (DEA) benefits was proper and the appeal is denied. FINDINGS OF FACT 1. There is no possible basis for finding that diabetes mellitus with erectile dysfunction and right eye retinopathy was a result of service. The grant of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy pursuant to an October 2008 rating decision was clearly and unmistakably erroneous. 2. There is no possible basis for finding that peripheral neuropathy of the right upper extremity was a result of service or a service-connected disability. The grant of service connection for peripheral neuropathy of the right upper extremity pursuant to a May 2010 rating decision was clearly and unmistakably erroneous. 3. There is no possible basis for finding that peripheral neuropathy of the left upper extremity was a result of service or a service-connected disability. The grant of service connection for peripheral neuropathy of the left upper extremity pursuant to a May 2010 rating decision was clearly and unmistakably erroneous. 4. There is no possible basis for finding that diabetic nephropathy with hypertension was a result of service or a service-connected disability. The grant of service connection for diabetic nephropathy with hypertension pursuant to a March 2014 rating decision was clearly and unmistakably erroneous. 5. There is no possible basis for finding that peripheral neuropathy of the right lower extremity was a result of service or a service-connected disability. The grant of service connection for peripheral neuropathy of the right lower extremity pursuant to a May 2010 rating decision was clearly and unmistakably erroneous. 6. There is no possible basis for finding that peripheral neuropathy of the left lower extremity was a result of service or a service-connected disability. The grant of service connection for peripheral neuropathy of the left lower extremity pursuant to a May 2010 rating decision was clearly and unmistakably erroneous. 7. Loss of use of the creative organ is not due to a service-connected disability. 8. The Veteran does not have a permanent and total service-connected disability. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy was properly severed, and the criteria for restoration of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.307, 3.309. 2. Service connection for peripheral neuropathy of the right upper extremity was properly severed, and the criteria for restoration of service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 3. Service connection for peripheral neuropathy of the left upper extremity was properly severed, and the criteria for restoration of service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 4. Service connection for diabetic nephropathy with hypertension was properly severed, and the criteria for restoration of service connection for diabetic nephropathy with hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 5. Service connection for peripheral neuropathy of the right lower extremity was properly severed, and the criteria for restoration of service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 6. Service connection for peripheral neuropathy of the left lower extremity was properly severed, and the criteria for restoration of service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 7. Discontinuance of SMC was proper, and the criteria for restoration of SMC for loss of use of the creative organ have not been met. 38 U.S.C. §§ 1114, 5112 (2012); 38 C.F.R. §§ 3.105, 3.350. 8. Discontinuance of DEA benefits was proper and the criteria for restoration of DEA benefits have not been met. 38 U.S.C. §§ 3500, 3501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to August 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a Board video-conference hearing in August 2019. A transcript of the hearing is of record. Severance of Service Connection Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, 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). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the 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). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62. The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO originally granted service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy; peripheral neuropathy of the right and left upper and lower extremities; diabetic nephropathy with hypertension; SMC based on loss of use of a creative organ; and, DEA benefits in October 2008, May 2010, March 2014 rating decisions. In a July 2014 rating decision, the RO proposed to sever service connection for these disabilities and to discontinue SMC and DEA benefits. The RO stated that the decision to grant service connection for these was clearly and unmistakably erroneous because the evidence conclusively showed that the Veteran had no service in Vietnam and the evidence failed to show he had herbicide exposure during his period of service in Thailand. As it was proposed to sever service connection for diabetes with erectile dysfunction, entitlement to SMC based on loss of use of a creative organ was not warranted. As the Veteran did not have a permanent and total service-connected disability, basic eligibility for DEA benefits was not established. In reaching this determination, the RO referred to a Memorandum of Record addressing herbicide us in Thailand during the Vietnam Era. In the June 2015 rating decision, the RO severed service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy; peripheral neuropathy of the right and left upper and lower extremities; diabetic nephropathy with hypertension; discontinued SMC based on loss of use of a creative organ; and discontinued DEA benefits. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in July 2014, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor in a July 2014 notice letter. The RO issued the June 2015 rating decision, which severed service connection prospectively effective September 1, 2015. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in June 2015. The September 1, 2015, date was greater than the last day of the month in which a 60-day period from the date of the June 2015 notice expired. Thus, all due process requirements were met in the severance of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy; peripheral neuropathy of the right and left upper and lower extremities; diabetic nephropathy with hypertension; discontinuance of SMC based on loss of use of a creative organ; and discontinuance of DEA benefits. See 38 C.F.R. § 3.105(d). 1. Whether the severance of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy was proper Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for diabetes mellitus with erectile dysfunction was clearly and unmistakably erroneous. The RO originally granted service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy in an October 2008 rating decision. The RO explained that service connection was granted on a presumptive basis. The Board concludes that the severance of service connection was proper because there is clear and unmistakable evidence that the Veteran was not exposed to herbicides during service. In relevant part, Veterans who during active service served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. VA has interpreted that regulation to mean that the presumption of service connection applies to those service members who physically set foot in the Republic of Vietnam. See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008). In addition, VA has found that Agent Orange was in some instances used in Thailand and has developed specific procedures to determine whether a veteran was exposed to herbicides in locations other than the Republic of Vietnam or along the DMZ in Korea. If herbicide exposure is acknowledged in these scenarios, the veteran is entitled to the presumptive service connection provisions of 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). Diabetes mellitus is an enumerated disease for which the presumption of service connection applies. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. Here, the Veteran wrote in a May 2008 statement (and he continues to assert) that he had diabetes due to his time of service in Vietnam. However, review of his personnel records clearly documents that he had service in Thailand and not in the Republic of Vietnam. Thus, it is clear and unmistakable that the Veteran did not set foot in Vietnam. As such, he is not entitled to the presumption of herbicide exposure on this basis. While the Veteran had service in Thailand, Agent Orange exposure due to his service in Thailand cannot be substantiated. In Thailand he served in the 519 Transportation Battalion and the 260 Transportation Company. He provided internet research of the 519 Transportation Battalion duties in Vietnam from December 1966 to December 1969. The Board reiterates that the Veteran had no service in Vietnam during his period of service. In Thailand, according to the internet research, the 519 Battalion distributed dairy products to the United States (U.S.) Forces throughout Thailand. The Veteran testified that he was a truck driver and he drove from base to base making deliveries. However, there is simply no documentation that the Veteran or any personnel assigned to the 519 Battalion or 260 Transportation Company was exposed to Agent Orange or tactical herbicides while performing their assigned duties. Moreover, a memorandum for the record concluded that other than the 1964 tests on the Pranburi Military Reservation, there were no records of tactical herbicide storage or use in Thailand. In addition the Veteran did not serve as a security policeman, security patrol dog handler, member of the security police squadron, military police (or have a military police occupational specialty) and the evidence has not otherwise shown that he primarily served near the base perimeter in the performance of his truck driving/delivery duties. Accordingly, the Veteran is not entitled to the presumption of exposure on this basis. In summary, there is clear and unmistakable evidence that the Veteran was not exposed to a covered herbicide, such as Agent Orange, during service. Accordingly, he is clearly and unmistakably not entitled to the presumption of exposure or a finding of exposure on a facts-found basis. Consequently, he is clearly and unmistakably not entitled to the presumption of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy. Relatedly, there is no indication that diabetes mellitus with erectile dysfunction and right eye retinopathy manifested during service or within a year of his discharge from service or might be related to service on any other basis. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309; see also Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Thus, the grant of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy was clear and unmistakable error. The severance of service connection was therefore proper, and the appeal of this issue is denied. 2. – 6. Whether the severance of service connection for: peripheral neuropathy of the right upper extremity; peripheral neuropathy of the left upper extremity; diabetic nephropathy with hypertension; peripheral neuropathy of the right lower extremity; and, peripheral neuropathy of the left lower extremity was proper The RO granted service connection for peripheral neuropathy of the right and left upper and lower extremities and diabetic nephropathy with hypertension as secondary to the diabetes mellitus with erectile dysfunction and right eye retinopathy. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Here, service connection for the primary disability, diabetes mellitus, has been severed. Therefore, as a matter of law, service connection for the secondary disabilities, peripheral neuropathy of the right and left upper and lower extremities and diabetic nephropathy with hypertension, is not warranted. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). There is no indication that service connection for peripheral neuropathy of the right and left upper and lower extremities and diabetic nephropathy with hypertension could be granted on any other basis. See, e.g., December 2013 VA reports of kidney conditions and diabetic sensory-motor peripheral neuropathy examination (attributing the diabetic nephropathy and peripheral neuropathy of the right and left upper and lower extremities to the diabetes mellitus). Accordingly, the severance of service connection for peripheral neuropathy of the right and left upper and lower extremities and diabetic nephropathy with hypertension, as associated with diabetes mellitus with erectile dysfunction and right eye retinopathy (i.e., secondary to diabetes mellitus with erectile dysfunction and right eye retinopathy), was proper, and the appeals are denied. 7. Whether the discontinuance of SMC based on loss of use of a creative organ was proper SMC for loss of use of the creative organ was granted as a result of the service-connected diabetes mellitus with erectile dysfunction. SMC is warranted on this basis where a veteran has suffered the anatomical loss or loss of use of one or more creative organs as a result of service-connected disability. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). Here, the Veteran’s loss of use of the creative organ is a result of diabetes mellitus with erectile dysfunction, which is no longer a service-connected disability. As such, he is no longer entitled to SMC for loss of use of the creative organ. Therefore, the discontinuance of this benefit was proper. See 38 C.F.R. § 3.105(e). Consequently, the appeal is denied. 8. Whether discontinuance of DEA benefits was proper Basic eligibility for DEA benefits under the provisions of 38 U.S.C., Chapter 35 is granted for a Veteran who has a total disability permanent in nature resulting from a service-connected disability. 38 U.S.C. §§ 3500, 3501. The Board has concluded above that severance of service connection for diabetes mellitus with erectile dysfunction and right eye retinopathy; peripheral neuropathy of the right and left upper and lower extremities and diabetic nephropathy with hypertension was proper. Thus, the Veteran does not meet the basic eligibility requirements for an award of DEA. As the Veteran did not meet any of the statutory or regulatory requirements for DEA, an appeal for continuation of such benefits must fail. VA is not authorized to award eligibility for DEA benefits in the absence of entitlement under the law. Because of Veteran’s lack of entitlement under the law to such benefits, and absence of VA authority to authorize such benefits when the eligibility criteria are not met, the Veteran’s appeal for the restoration of DEA benefits is denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.