Citation Nr: A21020129 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 191009-37159 DATE: December 16, 2021 ORDER The appeal as to the proposal to sever service connection for diabetic peripheral neuropathy, left lower extremity is dismissed. The appeal as to the proposal to sever service connection for diabetic peripheral neuropathy, right lower extremity is dismissed. The appeal as to the proposal to sever service connection for type 2 diabetes mellitus is dismissed. The appeal as to the proposal to sever service connection for diabetic nephropathy. is dismissed. FINDING OF FACT The Veteran has not filed a timely VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) on the issue of the propriety of the AOJ's January 2020 severance of service connection for diabetic peripheral neuropathy of both legs, diabetes mellitus, and diabetic nephropathy. CONCLUSION OF LAW The criteria for dismissal of a claim that the AOJ's January 2020 severance of service connection for diabetic peripheral neuropathy of both legs, diabetes mellitus, and diabetic nephropathy was improper have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from October 1968 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) from a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement) filed on October 9, 2019 wherein the Veteran identified an August 29, 2019 Agency of Original Jurisdiction (AOJ) decision to "sever service connection" for the four disabilities at issue. In pertinent part, the AOJ issued a rating decision on August 27, 2019 proposing to sever service connection for type II diabetes mellitus, diabetic nephropathy, and diabetic peripheral neuropathy of the lower extremities based upon a finding of clear and unmistakable error (CUE). The basis for CUE was deemed an incorrect finding that the Veteran had been exposed to herbicides while stationed at Takhli Royal Thai Air Force Base (RTAFB). The rating decision notified the Veteran that his "award of disability compensation will be terminated from the first of the month following 60 days from the date you are notified of finalization of this proposal. No overpayment will be created." By letter dated August 28, 2019, the AOJ notified the Veteran of its severance proposal as well as his right to submit evidence against the severance within 60 days from this notification as well as his right to a personal hearing. This letter stated that "If we do not receive additional evidence from you within 60 days, we will reduce your evaluation." This notice of rights is correct pursuant to 38 C.F.R. § 3.105(d) which specifically states: Severance of service connection. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) 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. 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. This letter also notified the Veteran of a denial of service connection for erectile dysfunction and hypertension and notified him that, should he disagree with the decision, he could file a supplemental claim, or request a Higher Level Review or Appeal to the Board. The AOJ sent the Veteran another letter on August 29, 2019 again informing him of its proposal to sever service connection for type II diabetes mellitus, diabetic nephropathy, and diabetic peripheral neuropathy of the lower extremities based upon a finding of CUE as well as the denial of service connection for erectile dysfunction and hypertension. This letter notified the Veteran that, should he disagree with the decision, he could file a supplemental claim, or request a Higher Level Review or Appeal to the Board. On October 9, 2019, the Veteran submitted written argument along with a VA Form 10182 identifying an appeal with the August 29, 2019 decision to "sever service connection" for type II diabetes mellitus, diabetic nephropathy, and diabetic peripheral neuropathy of the lower extremities. He chose the Evidence Lane to be provided within the next 90 days. At this time, he submitted a newspaper article regarding the Takhli Runway, a written statement of facts which he alleged established his exposure to herbicides. Later that same month, the Board notified the Veteran that his appeal had been placed on the Evidence Submission docket. In pertinent part, the AOJ must notify a claimant of a "decision" "affecting the provisions of benefits to a claimant" which shall also include an explanation of the procedure for obtaining review of the "decision." 38 U.S.C. § 5104. Such a "decision" is subject to review on appeal to the Secretary via the Board of Veterans Appeals. 38 C.F.R. § 20.104. The Board's decisions are limited to a de novo review of the record at the time of the AOJ decision, subject to situations such as this case where the claimant chose the Evidence Lane to allow consideration of evidence submitted within 90 days of the filing of the VA Form 10182. Here, the AOJ issued a "proposed" decision which, by law, was not final as the Veteran had the legal right to avail the due process provisions of 38 C.F.R. § 3.105(d) and a "predetermination" hearing if he so desired under 38 C.F.R. § 3.105(i). In short, there was no final decision taken by the AOJ in either August 2019 letter subject to appellate review by the Board. As such, the Board must dismiss this particular appeal as there is no underlying AOJ decision for review. 38 C.F.R. § 20.104. The Board does note for the Veteran that he may contact the AOJ and request them to consider whether the evidence he filed in October 2019, which was submitted within the 60 day window of 38 C.F.R. § 3.105(d), was properly considered in actions subsequent to the did not immediately take effect and would not be final until the due process provisions had been satisfied a claimant may appeal to the Board an AOJ "decision." In January 2020, the AOJ effectuated its August 2019 proposal and severed the grant of service connection for these four disabilities effective April 1, 2020. The AOJ notified the Veteran of the severance of service connection by way of a cover letter, dated April 30, 2020. At that time, the AOJ provided the Veteran with a copy of the rating decision and notified him of his rights to seek further review of its decision. See VA Form 20-0998. The Veteran's VA Form 10182, received in October 2019, predated the AOJ's January 2020 severance of service connection and, as such, the 10182 was premature, and it did not constitute a timely appeal of the AOJ's decision. 38 C.F.R. § 3.2400. Subsequent to the AOJ's January 2020 notification of severance of service connection to the Veteran, there is no record to show that a VA Form 10182 has been received disagreeing with the decision. Accordingly, a timely appeal to the Board has not been made under the AMA (Appeals Modernization Act) system, and no valid appeal is pending before the Board. As there is no pending appeal on the issue of whether the AOJ's severance of service connection for these four disabilities in January 2020 was improper, the Board must dismiss this appeal for lack of jurisdiction. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Heather J. Harter, 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.