Citation Nr: 21016171 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 19-08 162 DATE: March 22, 2021 ORDER The severance of service connection for multiple sclerosis was proper and the appeal is denied. The severance of service connection for muscle weakness of the left lower extremity was proper and the appeal is denied. The severance of service connection for muscle weakness of the left upper extremity was proper and the appeal is denied. The severance of service connection for voiding dysfunction was proper and the appeal is denied. The severance of service connection for erectile dysfunction was proper and the appeal is denied. The discontinuance of Special Monthly Compensation (SMC) for loss of use of the creative organ was proper and the appeal is denied. FINDINGS OF FACT 1. The Veteran’s multiple sclerosis did not onset due to disease or injury incurred during a period of active military service. The grant of service connection for multiple sclerosis pursuant to a July 2016 rating decision was clearly and unmistakably erroneous. 2. There is no possible basis for finding that muscle weakness of the left lower extremity was a result of a service-connected disability. The grant of service connection for muscle weakness of the left lower extremity pursuant to a July 2016 rating decision was clearly and unmistakably erroneous. 3. There is no possible basis for finding that muscle weakness of the left upper extremity was a result of a service-connected disability. The grant of service connection for muscle weakness of the left upper extremity pursuant to a July 2016 rating decision was clearly and unmistakably erroneous. 4. There is no possible basis for finding that a voiding dysfunction was a result of a service-connected disability. The grant of service connection for a voiding dysfunction pursuant to a July 2016 rating decision was clearly and unmistakably erroneous. 5. There is no possible basis for finding that an erectile dysfunction was a result of a service-connected disability. The grant of service connection for an erectile dysfunction pursuant to a July 2016 rating decision was clearly and unmistakably erroneous. 6. Loss of use of the creative organ is not due to a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for multiple sclerosis was properly severed, and the criteria for restoration of service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 101(22), (23), (24), 106, 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.6, 3.103, 3.105, 3.303. 2. Service connection for muscle weakness of the left lower extremity was properly severed, and the criteria for restoration of service connection for muscle weakness of the left lower extremity have not been met. 38 U.S.C. §§ 101(22), (23), (24), 106, 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 3. Service connection for muscle weakness of the left upper extremity was properly severed, and the criteria for restoration of service connection for muscle weakness of the left upper extremity have not been met. 38 U.S.C. §§ 101(22), (23), (24), 106, 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 4. Service connection for a voiding dysfunction was properly severed, and the criteria for restoration of service connection for a voiding dysfunction have not been met. 38 U.S.C. §§ 101(22), (23), (24), 106, 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 5. Service connection for an erectile dysfunction was properly severed, and the criteria for restoration of service connection for an erectile dysfunction have not been met. 38 U.S.C. §§ 101(22), (23), (24), 106, 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.310. 6. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the Reserves from April 1987 to August 1998 with periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). These matters came before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded these issues for further development of the record. The Board instructed the RO verify all ACDUTRA and INACDUTRA dates for service in 1994. The RO obtained dates of ACDUTRA and INACDUTRA service performed by the Veteran in 1994. Accordingly, the requested development has been completed and the case is returned to the Board for appellate disposition. 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 multiple sclerosis; muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, erectile dysfunction and awarded SMC based on loss of use of a creative organ in a July 2016 rating decision. In a September 2016 rating decision, the RO proposed to sever service connection for these disabilities. The RO stated that the decision to grant service connection for multiple sclerosis; muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, erectile dysfunction was clearly and unmistakably erroneous because the Veteran did not have active service for VA purposes by which service connection for multiple sclerosis could be granted. Additionally, as it was proposed to sever service connection for multiple sclerosis, entitlement to service connection for muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, erectile dysfunction as secondary to multiple sclerosis was not warranted. In the February 2017 rating decision, the RO severed service connection for multiple sclerosis; muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, erectile dysfunction and discontinued SMC based on loss of use of a creative organ. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in September 2016, and 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 in a September 2016 notice letter. The notice letter also informed the Veteran that he had the opportunity for a 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 testified in a pre-decisional hearing in November 2016. The RO issued the February 2017 rating decision, which severed service connection prospectively effective May 1, 2017. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in November 2017. The May 1, 2017, date was greater than the last day of the month in which a 60-day period from the date of the February 2017 notice expired. Thus, all due process requirements were met in the severance of service connection for multiple sclerosis; muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, erectile dysfunction and discontinuance of SMC based on loss of use of a creative organ. See 38 C.F.R. § 3.105(d 1. Whether the severance of service connection for multiple sclerosis 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 multiple sclerosis was clearly and unmistakably erroneous. Regarding the characteristics of clear and unmistakable evidence, the word ‘unmistakable’ means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster’s New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). The Board concludes that the severance of service connection was proper because there is clear and unmistakable evidence, as the term is understood in law, that the Veteran’s multiple sclerosis did not onset due to disease or injury incurred during a period of active military service. The applicable law provides service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “Active military service” is defined by VA law and regulations. Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. A June 1994 treatment record reflects the Veteran’s complaint of a two-week history of numbness from mid chest wall down all the way down the left leg to his toes. A July 1994 private neurology medical clinic treatment record documents the Veteran’s complaint of left sided numbness. The Veteran reported that approximately one month earlier, he had onset of numbness starting about 2 inches below the left nipple and involving the remainder of his body on the left side. A March 1995 private neurological treatment record documents the Veteran’s complaint of persistent numbness and tingling in his bilateral lower extremities and lower chest since May 1994. The Veteran reported he had a fairly sudden onset of his symptoms as he awoke in the morning and noted numbness in his bilateral lower extremities, maximally on the left and numbness in his lower chest in a transverse fashion. Additional March 1995 statement from his treating neurologist confirms that the Veteran has multiple sclerosis. Thus, the central inquiry is whether the Veteran’s multiple sclerosis had its onset during a period of ACDUTRA, specifically in May 1994. Personnel records reflect that he served on INACDUTRA from August 7, 1993 to April 17, 1994; on ACDUTRA from April 18, 1994 to April 29, 1994; on INACDUTRA from April 30, 1994 to July 31, 1994; on INACDUTRA from August 1, 1994 to October 2, 1994; on ACDUTRA from October 3, 1994 to October 14, 1994; and, on INACDUTRA from October 15, 1994 to February 25, 1995. It is clear and unmistakable that he did not serve on ACDUTRA in May 1994. As such, symptoms of his multiple sclerosis clearly and unmistakably did not onset due to disease or injury incurred during a period of ACDUTRA. In addition, as for any claim that his multiple sclerosis onset from injury incurred during a period of INACDUTRA, specifically from a tetanus shot, there is no probative evidence to indicate that a tetanus shot may lead to the onset of multiple sclerosis. Thus, the Veteran’s assertions that a tetanus shot led to the onset of his multiple sclerosis are speculative and conclusory and insufficient to indicate a nexus to service. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); cf Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). As the Veteran’s multiple sclerosis did not onset due to disease or injury incurred during a period of active military service (i.e., due to disease or injury incurred during a period of ACDUTRA or INACDUTRA), the grant of service connection for multiple sclerosis, pursuant to a July 2016 rating decision, was clearly and unmistakably erroneous, and service connection was properly severed. 2. Whether the severance of service connection for muscle weakness of the left lower extremity was proper 3. Whether the severance of service connection for muscle weakness of the left upper extremity was proper 4. Whether the severance of service connection for voiding dysfunction was proper 5. Whether the severance of service connection for erectile dysfunction was proper The RO granted service connection for muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, an erectile dysfunction as secondary to the multiple sclerosis. 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, multiple sclerosis, has been severed. Therefore, as a matter of law, service connection for the secondary disability, muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, an erectile dysfunction, 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 muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, an erectile dysfunction could be granted on any other basis. See, e.g., April 2016 report of VA multiple sclerosis examination (documenting that muscle weakness of the left lower extremity and left upper extremity; a voiding dysfunction; and, an erectile dysfunction were attributable to multiple sclerosis). Accordingly, the severance of service connection for muscle weakness of both the left lower extremity and left upper extremity; a voiding dysfunction; and, an erectile dysfunction, as secondary to multiple sclerosis, was proper, and the appeals are denied. 6. Whether the discontinuance of Special Monthly Compensation (SMC) based on loss of use of creative organ was proper SMC for loss of use of the creative organ was granted as a result of the service-connected 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 erectile dysfunction, which is no longer a service-connected disability. He is not therefore 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. Vito A. Clementi 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.