Citation Nr: 21007391 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-26 552 DATE: February 9, 2021 REMANDED The issue of whether severance of service connection for stage 2 mild renal insufficiency was proper is remanded for further development. REASONS FOR REMAND The Veteran served on active duty from July 1967 to February 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the Jackson, Mississippi RO. In August 2019, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. In November 2019, the Board found that severance of service connection for stage 2 mild renal insufficiency was proper and denied a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD). The Board also remanded the issues of entitlement to a disability rating greater than 20 percent for diabetes mellitus and entitlement to a total disability rating based on unemployability (TDIU) for additional development. The Veteran timely appealed the Board’s November 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court), but only to the extent that it had concluded the severance of service connection for stage 2 mild renal insufficiency was proper. In a September 2020 Joint Motion for Partial Remand (JMPR), the Veteran and the Secretary moved the Court to vacate and remand the Board’s decision with respect to the severance issue only. The Court granted the JMPR later in September 2020. The case has returned to the Board. Severance In the September 2020 JMPR, the parties stated that the Board erred in its November 2019 decision by relying on an inadequate VA medical opinion to determine that severance of service connection for stage 2 renal insufficiency was proper. Specifically, the Board relied on a May 2014 VA medical opinion that concluded it was less likely than not that the Veteran’s renal insufficiency was aggravated by his diabetes mellitus. The parties noted that, for severance, the “less likely than not” standard is not the appropriate standard. Rather, in accordance with 38 C.F.R. § 3.105(d), in order to sever service connection, a physician must state whether the diagnosis upon which service connection was predicated was clearly erroneous. Additionally, the physician must accompany his or her statement regarding the error with a summary of facts, findings, and reasoning in support of their conclusion. In granting the JPMR, the Court directed the Board to procure a medical opinion that considers the appropriate standard. Accordingly, the Board remands the issue of whether severance of service connection for stage 2 mild renal insufficiency was proper for an additional VA medical opinion consistent with the September 2020 JPMR and Court Order. The matter is REMANDED for the following action: Send the Veteran’s claims file to an appropriate VA physician to provide an opinion regarding the Veteran’s stage 2 renal insufficiency. The entire claims file, including a copy of this remand, must be made available to and must be reviewed by the physician. After reviewing the Veteran’s claims file, the physician should address the following: (a.) Please state whether, in light of all of the accumulated evidence in the Veteran’s claims file, it was clearly and unmistakably erroneous to conclude that the Veteran’s stage 2 mild renal insufficiency was caused by his diabetes mellitus. Please accompany your conclusion with a summary of facts, findings, and reasoning. (b.) Please state whether, in light of all of the accumulated evidence in the Veteran’s claims file, it was clearly and unmistakably erroneous to conclude that the Veteran’s stage 2 mild renal insufficiency was aggravated (worsened beyond natural progression) by his diabetes mellitus. Please accompany your conclusion with a summary of facts, findings, and reasoning. Please note that, for the purpose of providing responses to parts (a) and (b), “clearly and unmistakably erroneous” means an error, of which reasonable minds could not differ, that would lead to the result of service connection for renal insufficiency not being granted. Additionally, please note that, in providing responses to parts (a) and (b), there is no temporal requirement inherent in granting service connection on a secondary basis. Accordingly, it is not a barrier to service connection if renal insufficiency was identified or diagnosed prior to diabetes mellitus. If the physician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.