Citation Nr: 21066222 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-46 715 DATE: October 29, 2021 ORDER The severance of service connection for peripheral neuropathy of the right lower extremity being improper, restoration of service connection is granted. The severance of service connection for peripheral neuropathy of the left lower extremity being improper, restoration of service connection is granted. FINDINGS OF FACT There is some probative evidence that the Veteran had peripheral neuropathy of the right and left lower extremities due to his presumed exposure to Agent Orange in Vietnam. CONCLUSIONS OF LAW 1. The severance of service connection for peripheral neuropathy of the right lower extremity was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 2. The severance of service connection for peripheral neuropathy of the left lower extremity was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to November 1973. He died in January 2019. The appellant is his surviving spouse. The case is on appeal from a March 2015 rating decision. This appeal was pending at the time of the Veteran's death, and the appellant has been substituted in the pending appeal. In November 2020, the appellant testified at a Board hearing. 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. See id. 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. Id. 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 (internal quotations omitted). 1. Whether the severance of service connection for peripheral neuropathy of the right lower extremity was proper 2. Whether the severance of service connection for peripheral neuropathy of the left lower extremity was proper As these issues are interrelated, the Board will address them together. Service connection for peripheral neuropathy of the right and left lower extremities was granted in a March 2012 rating decision. The RO granted service connection for peripheral neuropathy of each lower extremity due to Agent Orange exposure. The RO relied on a March 2011 VA examination showing a diagnosis of peripheral neuropathy. A December 2014 rating decision proposed to sever service connection. The RO explained that a clear and unmistakable error had been made in the grant of service connection because there was no evidence of record showing that the condition had manifested to a compensable degree within a year of last Agent Orange exposure, and that it was "over a decade before this condition manifested to a compensable degree." The March 2015 rating decision on appeal made the severance final. The RO explained that there was clear and unmistakable error as there was no legal entitlement to service connection because the diagnosis had not manifested to a degree of 10 percent or more within a year of last exposure to Agent Orange. The RO determined that this clear and unmistakable error had occurred because of a misinterpretation of the legal requirements for service connection for this disability. The instant appeal followed. The Veteran during his lifetime, and the appellant at present, maintains that the severance was improper because he first noticed symptoms shortly after his return from Vietnam. See 4/20/2015 notice of disagreement (NOD); Board Hr'g Tr. 3-4. 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 Board finds that the RO did not follow the proper due process steps for severing service connection. First, the RO issued the proposed rating in December 2014. The Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The December 2014 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran filed a supporting statement in December 2014. In January 2015, he requested a predetermination hearing. The predetermination hearing was not held. Rather, the RO sent him a letter in February 2015 stating that his attempt to file a notice of disagreement (NOD) was premature. The RO then issued the final rating decision in February 2015, which severed service connection retrospectively effective December 16, 2014. Notice of this rating decision, plus appeal rights, was sent to the Veteran under a February 2015 cover letter. The cover letter stated that the effective date for the severance was May 1, 2015. In March 2015, the RO issued a second rating decision again making the severance final. The RO found that this second rating decision was needed to "better explain the process by which service connection is being severed." The rating decision reiterated the reasons for the severance and made the severance final on May 1, 2015. The Board finds that the RO's actions did not satisfy the due process requirements to sever service connection. First, the requested predetermination hearing was not held. Second, the final action from February 2015 contained conflicting dates as to when the severance was being made final, one of which was retrospective. The March 2015 letter attempted to clarify the RO's actions, but made a new due process error as the final date of severance, May 1, 2015, was not the last day of the month in which a 60-day period from the March 2015 date of notice of the final rating action expired. Thus, all due process requirements were not met in severing service connection. See 38 C.F.R. § 3.105(d). The severance of service connection also was improper because there is conflicting evidence as to whether the Veteran had peripheral neuropathy related to Agent Orange exposure in service. There is not clear and unmistakable evidence that the peripheral neuropathy is not related to Agent Orange exposure in service. There was at least some probative evidence of record at the time of grant of service connection to show that the Veteran had peripheral neuropathy of the right and left lower extremities due to the presumed exposure to Agent Orange in Vietnam. With regard to herbicide exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents includes early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). Early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). In this case, there is no material dispute that the Veteran was diagnosed with peripheral neuropathy of the left and right lower extremities during his lifetime. This is confirmed by the VA and private (non-VA) medical records. The medical records do not reflect a diagnosis of early-onset peripheral neuropathy. The evidence confirms the Veteran had service in the Republic of Vietnam in the Vietnam era. The DD Form 214 shows service in Vietnam from February 1972 to February 1973; hence, the Veteran is presumed to have been exposed to Agent Orange during service. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). There is not clear and unmistakable evidence that the Veteran's condition was not early-onset peripheral neuropathy. Although not initially diagnosed as early-onset peripheral neuropathy, this absence of diagnosis at that time amounts to no more than an absence of evidence which the Board does not find to be clear and unmistakable evidence of absence. There was at least some probative evidence of record at the time of grant of service connection to show that the Veteran had symptoms of peripheral neuropathy of the right and left lower extremities due to the presumed exposure to Agent Orange in Vietnam. Even if he did not have a diagnosis of early-onset peripheral neuropathy, this would not end the inquiry, as the unavailability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To this end, the Board must look to the entire record to make this determination. Tending to support a nexus to service, a friend wrote a supporting letter in November 2020, indicating that he had known the Veteran since they started working together in 1973. They started playing in a softball league together, and he noticed that the Veteran had difficulty walking after double headers. He felt that there was something more serious going on with the Veteran's feet than he was letting on. The Veteran's cousin wrote that she and the Veteran had been moving a piece of furniture after the Veteran had returned home from Vietnam. He slipped his shoes off because his feet were burning. The Veteran himself credibly maintained that he had symptoms in his feet starting proximate in time to his service in Vietnam. Also favorable, in August 2017, a private neurologist wrote a supporting letter explaining that the Veteran had been her patient for many years. The neurologist indicated that the Veteran had symptoms beginning during service, but they were not associated with Agent Orange exposure until the early 1990s. Then in November 2020, a neurologist wrote a letter explaining that she had followed the Veteran for peripheral neuropathy since 2005, and that an extensive work-up failed to identify an underlying cause for his peripheral neuropathy. She remarked that the Veteran had a history of paresthesias affected the distal lower extremities starting in 1973, which had continued until diagnosed with peripheral neuropathy. The neurologist observed that the symptoms had presented well before the diagnosis, although the Veteran did not seek medical care until the symptoms interfered with his daily life. The neurologist opined that, based on the lack of an alternative diagnosis for the sensory neuropathy, and the continued symptoms since at least 1973, it was her medical opinion that it was at least as likely as not that the diagnosis was incurred in or caused by service and due to Agent Orange exposure in Vietnam. The neurologist's opinion is of some probative value because it provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This neurologist is identified elsewhere in the record as an Assistant Professor of Neurology at a large university. (The Board observes that this same neurologist is also shown in the VA medical records as having followed the Veteran for this disease at a VA medical center.) Hence, it appears likely the neurologist was fully informed of the relevant information, including all studies in this area. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). Taken together, this record presents some probative evidence that (a) the Veteran had symptoms in his feet as early as 1973; and (b) that a competent medical professional examined his case and found that the condition was likely a result of Agent Orange exposure. Tending to weigh against the claim, the Veteran was not entirely consistent in giving a history of symptoms beginning since 1973. The Veteran wrote in his initial, January 2011 claim that the symptoms began in the late 1970s or early 1980s with mild pain, burning, and tingling in the feet. He wrote that he did not know what it was at the time, and he did not see a doctor until the late 1990s or early 2000s. He gave a similar history in a March 2011 testimonial statement. At an initial VA examination in March 2011, the Veteran gave a history of neuropathy characterized as pins and needles the onset of which occurred in the mid-1980s during recreational activities, but became chronic and sustained in the late 1990s. At a second VA examination in November 2014, the Veteran gave a history of symptoms beginning in approximately 1985. The VA examiner remarked that the Veteran "has a chronic peripheral neuropathy of his lower extremities . . . (considered to be related with agent orange [exposure]that is severe and progressive)." During VA treatment in August 2017, the Veteran gave a history of symptoms since the early 1980s with intermittent bilateral foot pain. A March 2018 VA Neurology note indicates that he first began experiencing symptoms in the early 1980s that consisted of pain in his feet while exercising. An August 2018 VA Neurology note indicates neuropathy starting in the early 2000s. These lay statements indicate that the Veteran was not always consistent in representing a history of symptoms since 1973. These lay statements are not, however, clear and unmistakable evidence that the statements of symptoms since 1973 were inaccurate. They do not reflect any indicia of reliability sufficient to establish that he was giving an accurate history. Based on the current record, it appears equally plausible that these inconsistent, unfavorable statements are the inaccurate history. Moreover, these statements would not be determinative. Even if the credible evidence did not support an onset of symptoms within one year of the last Agent Orange exposure, the November 2020 neurologist's statement tends to indicate a nexus to Agent Orange exposure without regard to the presumption. In short, there is both positive supporting a nexus and negative evidence against a nexus to Agent Orange exposure. This evidence presents a reasonable disagreement as to such, and reasonable minds could disagree as to the ultimate determination. However, this determination, at this point, amounts to no more than a disagreement as to how to weigh the probative value of the conflicting evidence. In context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. As the severance of service connection was improper, service connection will be restored. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, Counsel 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.