Citation Nr: 21010040 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-27 687 DATE: February 24, 2021 ORDER The severance of the award of service connection for left upper extremity diabetic neuropathy effective October 1, 2017, was not proper; the claim for restoration of service connection is granted. The severance of the award of service connection for right upper extremity diabetic neuropathy effective October 1, 2017, was not proper; the claim for restoration of service connection is granted. FINDING OF FACT 1. A November 2015 rating decision granted service connection for left and right upper extremity diabetic neuropathy as secondary to service connected diabetes mellitus effective September 25, 2015. 2. A September 2016 rating decision of which the Veteran was notified in that month proposed the severance of service connection for left and right upper extremity diabetic neuropathy. 3. A July 2017 rating decision severed service connection for left and right upper extremity diabetic neuropathy. 4. The evidence of record does not establish that the November 2015 rating decision that granted service connection for left and right upper extremity diabetic neuropathy as secondary to service connected diabetes mellitus was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of the award of service connection for left upper extremity diabetic neuropathy as secondary to service connected diabetes mellitus was improper, and the criteria for restoration benefits have been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.105 (d), 3.303, 3.310 (2020). 2. The severance of the award of service connection for right upper extremity diabetic neuropathy as secondary to service connected diabetes mellitus was improper, and the criteria for restoration of benefits have been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.105 (d), 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2017 decision. The Veteran presented testimony before the Board in February 2021. Severance of service connection for bilateral upper extremity diabetic neuropathy Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310 (a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Once service connection has been granted, it can be severed only upon the Secretary’s showing that the rating decision granting service connection was “clearly and unmistakably erroneous,” and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105 (d). See also Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). 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 [concerning predetermination hearings], 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 review of the record shows that a November 2015 rating decision granted service connection for left and right upper extremity diabetic neuropathy as secondary to service connected diabetes mellitus. This decision noted that the Veteran’s examination (in 2015) confirmed the diagnosis of bilateral upper extremity diabetic neuropathy. Thereafter, following a June 2016 VA examination and August 2016 addendum opinion indicating that the Veteran did not have objective evidence of diabetic neuropathy, and instead had carpal tunnel syndrome not caused by his diabetes, a September 2016 rating decision proposed the severance of service connection for left and right upper extremity diabetic neuropathy. This decision found that the November 2015 decision incorrectly established service connection for bilateral upper extremity diabetic neuropathy when the evidence clearly showed that this disability was not diagnosed. The Veteran was notified of the proposal to sever service connection for bilateral upper extremity diabetic neuropathy by a September 2016 letter, and this notification letter informed him that he had 60 days to submit evidence to show that the proposed action should not be taken and explained how to obtain a personal hearing. In response to this letter, the Veteran submitted statements in October 2016 that he did in fact have a diagnosis of bilateral upper extremity diabetic neuropathy. In support of his claim, the Veteran resubmitted a copy of the September 2015 Disability Benefits Questionnaire (DBQ), which indicated the Veteran had both carpal tunnel syndrome and upper extremity peripheral neuropathy, which was of record at the time of the original award of service connection. He further submitted a November 2015 nexus statement from Dr. MVS, which indicated the Veteran had bilateral upper extremity neuropathy caused by his diabetes mellitus and was of record at the time of the proposal to sever service connection. The Veteran also testified at the hearing before the undersigned as to having a current diagnosis of bilateral upper extremity diabetic neuropathy. The Board notes that VA outpatient treatment records contain diagnoses of diabetic neuropathy in January 2016, April 2016, and December 2016. An August 2017 EMG further reveals a diagnosis of chronic, mixed axonal and demyelinating sensorimotor peripheral neuropathy. There was also evidence of superimposed mild median neuropathies at both carpal tunnels. An October 2017 DBQ shows the Veteran was diagnosed with diabetic neuropathy, with ten plus years of paresthesias and burning in the bilateral hands. Following the September 2016 notification to the Veteran of the proposed severance, a July 2017 rating decision implemented the severance of service connection for left and right upper extremity diabetic neuropathy. As this decision followed a proposed rating decision to which the Veteran was properly notified as set forth above, the Board finds that there was compliance with the due process provisions of 38 C.F.R. § 3.105 (d) with respect to the severances in question. Turning to the merits of the severances, the United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether clear and unmistakable error (CUE) is present in a prior determination: (1) either 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 that 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). The Court has further stated that a CUE is a very specific and a rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). The Court has held that the same CUE standard that applies to a Veteran’s CUE challenge to a prior adverse determination under § 3.105(a) is also applicable in the Government’s severance determination under § 3.105(d). “Once service connection has been granted, section 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof.” See Wilson v. West, 11 Vet. App. 383 (1998); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (“In effect, § 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 also Graves, 6 Vet. App. at 170 (holding that clear and unmistakable error is defined the same under 38 C.F.R. § 3.105 (d) as it is under § 3.105(a)). In a severance case, the evidence that may be considered in determining whether severance is proper under section 3.105(d) is not limited to the evidence before the RO at the time of the initial service connection award. See Daniels, 10 Vet. App. at 480; cf. Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). The Court has reasoned that because section 3.105(d) specifically contemplates that a change in diagnosis or change in law or interpretation of law may be accepted as a basis for severance, the regulation contemplates the consideration of evidence acquired after the original granting of service connection. The Court also has reasoned that “[i]f the Court were to conclude that... a service connection award can be terminated pursuant to section 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, the VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record.” Venturella, 10 Vet. App. at 342-43. With consideration of the criteria set forth above and all the evidence and information of record, to include the credible testimony presented by the Veteran at the hearing before the Board, and medical evidence showing continued diagnosis of bilateral upper extremity diabetic neuropathy, the Board finds that the November 2015 rating decision that granted service connection for left and right upper extremity diabetic neuropathy as secondary to service connected diabetes mellitus was not clearly and unmistakably erroneous. In short, as the record before the adjudicators in November 2015 did in fact include evidence of diabetic neuropathy, while others may have reached a different conclusion as to the matter in question, such is tantamount to mere “disagreement as to how facts were weighed or evaluated.” Moreover, the evidence acquired after the original granting of service connection continues to show a diagnosis of bilateral upper extremity diabetic neuropathy and therefore, the grant of service connection for left and right upper extremity diabetic neuropathy in the November 2015 rating decision does not represent CUE but instead a reasonable exercise of rating judgment. Damrel, Russell, supra. In short, as the Board finds that the November 2015 rating decision that granted service connection for left and right upper extremity diabetic neuropathy as secondary to service connected diabetes mellitus did not constitute CUE, severance of service connection was improper. Thus, the claims to restore service connection for left and right upper extremity diabetic neuropathy are granted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.