Citation Nr: 22018944 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 13-31 333A DATE: March 30, 2022 ORDER As new and material evidence has not been received, reopening of the claim for service connection for a facial pain disability is denied. As new and material evidence has not been received, reopening of the claim for service connection for a bilateral knee disability is denied. As new and material evidence has not been received, reopening of the claim for service connection for a visual impairment is denied. Entitlement to service connection for hypertensive vascular disease (claimed as hypertension) is denied. Entitlement to service connection for diabetes mellitus, type II (DM2) is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for bilateral hearing loss is denied. Severance of service for lumbosacral strain was improper; restoration of service connection for lumbosacral strain is granted. FINDINGS OF FACT 1. In an unappealed rating decision dated in September 1991, the RO denied service connection for a facial pain disability. 2. The evidence received since the September 1991 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a facial disability and, thus, does not raise a reasonable possibility of substantiating that claim. 3. In an unappealed rating decision dated in September 1994, the RO denied service connection for a bilateral knee disability. 4. The evidence received since the September 1994 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a bilateral knee disability and, thus, does not raise a reasonable possibility of substantiating that claim. 5. In an unappealed rating decision dated in September 1994, the RO denied service connection for a visual impairment disability. 6. The evidence received since the September 1994 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a visual impairment disability and, thus, does not raise a reasonable possibility of substantiating that claim. 7. Diabetes mellitus was not caused by herbicide exposure or active duty service, nor was it shown within one year after discharge. 8. Hypertension was not caused by active duty service or a service-connected disability, nor was it shown within one year after discharge. 9. The Veteran does not currently have a diagnosis of PTSD. 10. The evidence is persuasively against a finding that the Veteran has a diagnosis of hearing loss for VA compensation purposes in either ear related to his military service. 11. The grant of service connection for lumbosacral strain, pursuant to a September 2010 rating decision, was not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The September 1991 rating decision denying service connection for facial pain is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has not been received sufficient to reopen the previously denied claim for service connection for facial pain. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The September 1994 rating decision denying service connection for a bilateral knee condition is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. New and material evidence has not been received sufficient to reopen the previously denied claim for service connection for a bilateral knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 5. The September 1994 rating decision denying service connection for a visual impairment disability is final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 6. New and material evidence has not been received sufficient to reopen the previously denied claim for service connection for a visual impairment disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria for service connection for type II diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 10. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 11. The severance of service connection for lumbosacral strain was improper; the criteria for restoration of service connection for lumbosacral strain have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1966 to June 1975. The Veteran's previous representative attempted to withdraw representation in September 2020 correspondence. The Board notified the representative that a formal motion was required. Because the attempted withdrawal occurred after the Agency of Original Jurisdiction (AOJ) certified these matters to the Board in June of 2016 and January 2020, the representative may not withdraw unless good cause is shown on motion. 38 C.F.R. § 20.608. A formal motion to withdraw was filed in August 2021, based on "factors which make the continuation of representation impossible, impractical, or unethical." The motion was granted by the Board in January 2022. These matters were previously remanded by the Board in September 2017 and September 2020. The issues of service connection for PTSD and for bilateral hearing loss have been merged from a separate appeal stream. The requested development in the remands has been completed and the issues return to the Board for adjudication. The September and 2017 and September 2020 Board remands are incorporated herein by reference. During the course of the appeal, the Veteran's claim for Parkinson's disease was recategorized in accordance with medical evidence as tardive dyskinesia related to service-connected schizophrenia. The claim was granted in a September 2020 rating decision. As this constitutes a full grant of the benefit sought on appeal, that issue is no longer before the Board. New and Material A rating decision becomes final if the claimant does not file an appeal or submit new and material evidence within one year of the issuance of the rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade, supra. 1. Facial Pain By way of history, in a September 1991 rating decision, the AOJ denied service connection for, among other things, "head pain" related to a left facial fracture and jaw surgery during active service. The AOJ notified the Veteran of this decision, but he did not file a formal appeal. Therefore, the September 1991 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The September 1991 rating decision denied service connection for head pain disability due to a lack of evidence that the Veteran's in-service jaw injury and pain had exhibited continuity of symptomatology following initial treatment. The Veteran requested a reopening of the claim, which was denied in a September 2010 rating decision. The Veteran appealed. Since the previous denial in September 1991, several VA medical records have been added to the claims file, including evidence that the Veteran experienced facial numbness as a side effect of hypertension. There was no evidence that the Veteran's facial condition was related to his active service or residual from a jaw injury during active service. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim for service connection. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks any evidence demonstrating that the Veteran has a facial condition that was incurred in, or is otherwise related to, his active service. Accordingly, the Board finds that the evidence received subsequent to the September 1991 rating decision is not new and material and does not serve to reopen the Veteran's claim. The claim to reopen the issue of service connection for facial pain must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Bilateral Leg Condition In a September 1994 rating decision, the AOJ denied service connection for a bilateral knee disability. The AOJ notified the Veteran of this decision, but he did not file an appeal. Therefore, the September 1994 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The 1994 decision denied service connection based on a lack of evidence of in-service complaints, treatment, or diagnosis, and a lack of evidence of current leg condition incurred in or aggravated by active duty service. The Veteran requested a reopening of the claim, which was denied in a September 2010 rating decision. The Veteran appealed. Since the previous denial in September 1994, several VA medical records have been added to the claims file, including a September 2010 examination where the Veteran denied any leg disability. There is no medical evidence of record linking a current leg disability to the Veteran's active duty. As such, the newly received evidence is simply cumulative of the evidence available to the AOJ at the time of the prior final rating action in September 1994. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim for service connection. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks any evidence demonstrating that the Veteran has a left or right knee condition that was incurred in, or is otherwise related to, his active service. Accordingly, the Board finds that the evidence received subsequent to the September 1994 rating decision is not new and material and does not serve to reopen the Veteran's claim. The claim to reopen the issue of service connection for a bilateral knee disability must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Visual Impairment By way of history, the AOJ denied service connection for a visual impairment disability in a September 1994 rating. The AOJ notified the Veteran of this decision, but he did not file a formal appeal. Therefore, the September 1994 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The 1994 decision denied service connection based on a lack of evidence of in-service complaints, treatment, or diagnosis, and a lack of evidence of current visual impairment or disability was incurred in or aggravated by active duty service. The Veteran requested a reopening of the claim, which was denied in a September 2010 rating decision. The Veteran appealed. Since the previous denial in September 1994, several VA medical records have been added to the claims file, however, there is no evidence showing the Veteran has a vision impairment or other eye condition related to his active service. The newly received evidence is simply cumulative of the evidence available to the AOJ at the time of the prior final rating action in September 1994. Therefore, while the evidence is new, it is not material within the meaning of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim for service connection. A claim to reopen without more does not meet the low bar for reopening a claim. The record still lacks any evidence demonstrating that the Veteran has a vision impairment or condition that was incurred in, or is otherwise related to, his active service. Accordingly, the Board finds that the evidence received subsequent to the September 1994 rating decision is not new and material and does not serve to reopen the Veteran's claim. The claim to reopen the issue of service connection for vision impairment must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. §3.303(d). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§1101, 1112, 1113, 1137; 38 C.F.R. §§3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307 (a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the enumerated diseases listed in 38 C.F.R. § 3.309 (e). Diabetes mellitus and early onset peripheral neuropathy, if manifest to a degree of 10 percent or more for an herbicide exposed Veteran, may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. If a veteran had active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, the veteran shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307 (a)(6)(iv). 4. Entitlement to service connection for hypertensive vascular disease (hypertension). The Veteran contends that he has hypertension related to his active service. The Board finds that the evidence is persuasively against a finding that the Veteran's hypertension is related to his active service. The Veteran's service treatment records do not contain any treatment, diagnosis, or related complaint for hypertension or other blood pressure related symptoms. After service, some treatment records record show diagnosed hypertension; others are unclear as to a clinical diagnosis of hypertension. Even accepting that the Veteran has a diagnosis of hypertension as a threshold for service connection, the record does not establish a nexus between the Veteran's hypertension and his military service. The record does not reveal evidence to link the Veteran's current hypertension to his active service, or any service-connected conditions. Absent evidence and assertions at least suggestive of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating these service connection claims without being speculative. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the claim for entitlement to service connection for hypertension must be denied. 5. Entitlement to service connection for diabetes mellitus type 2 (DM2). The Veteran contends that he has DM2 related to his active service. The Board finds that the evidence is persuasively against a finding that the Veteran's DM2 is related to his active service. Service treatment records do not contain any treatment, diagnosis, or related complaint for DM2. Post-service treatment records show a diagnosis of DM2. As to nexus, the Veteran has not asserted that he was exposed to tactical herbicide agents during active service. However, the Board has considered whether the Veteran was exposed to herbicide agents, as diabetes mellitus is among those listed as a presumptive condition under 38 C.F.R. § 3.307. The Veteran served in Korea from August 1973 to March 1974. Unfortunately, because the Veteran served in Korea outside of the April 1, 1968, and August 31, 1971, period, exposure to herbicide agents cannot be presumed. The record does not contain any evidence connecting the Veteran's DM2 to service. Nor is there medical or lay evidence suggesting the possibility that the Veteran's current complaints are related to service. Absent evidence or assertions at least suggestive of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating these service connection claims without being speculative. See McLendon, 20 Vet. App. 79, 81 (2006). As the evidence is persuasively against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for entitlement to service connection for DM2 is denied. 6. Entitlement to service connection for PTSD. The Veteran contends that he has PTSD related to active service. The Board finds the evidence does not a PTSD diagnosis that is related to active service. VA treatment records in April 2014 indicate the Veteran had a positive PTSD screening. The record also shows that service connection is currently in effect for a non-PTSD mental health diagnosis, schizophrenia, rated as 100 percent disabling. On VA examination in July 2019, the Veteran's only acquired psychiatric disorder was diagnosed as schizophrenia. The examiner specifically remarked that the Veteran did not have more than one diagnosed mental disorder. On VA examination in June 2021, the examiner opined that it was less likely than not that the Veteran meets the criteria for PTSD. He was not diagnosed with PTSD, mainly because he was unable to identify any PTSD Stressor or trauma and because he denied certain mandatory criteria for a PTSD diagnosis. Further, the only confirmed DSM-V diagnosis was schizophrenia. As a threshold matter, the Veteran must have a current disability in order to claim service connection. Here, there is no objective medical evidence of diagnosed PTSD during the appeal period. The Board recognizes the positive screening, but there has been no clinical diagnosis. While the Board is sympathetic to the Veteran's symptoms, without a diagnosis, there is no basis for service connection. The Veteran has not argued otherwise or provided any medical evidence to the contrary. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In reaching this conclusion, the Board has considered the Veteran's contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue of PTSD in this case, it falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report his current symptoms, this is not the type of condition that is amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose of PTSD and determine its etiology. Jandreau; Davidson, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert, 21 Vet. App. 456, 462 (2007). In sum, the evidentiary requirement of demonstrating a current disability has not been satisfied. There is simply no evidence that PTSD has actually been diagnosed at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran's favor, and the claim for service connection for PTSD must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 7. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss related to his in-service exposure to hazardous noise. Upon weighing the evidence, the Board finds that the evidence of record dated during the appeal period does not reflect a current hearing loss disability for VA purposes in either ear. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's active duty MOS included military police, which carries potential for hazardous noise exposure. However, as a threshold matter, the medical evidence of record does not show the Veteran has hearing loss for VA purposes. On VA examination in October 2017, the Veteran was afforded an air conduction study. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 35 30 LEFT 25 20 20 30 30 The pure tone threshold average for the right ear was 25 dB, and the left ear was 25 dB. The Veteran's speech discrimination scores were 90 percent in the right ear and 92 percent in the left ear. The examiner opined that while the Veteran has mild bilateral hearing loss, it was less likely than not a result of exposure during active service. The examiner remarked that the Veteran's in-service audiograms revealed only normal hearing. Pursuant to the September 2020 Board remand, an additional VA examination was completed in June 2021, during which the Veteran was afforded an air conduction study. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 30 25 LEFT 20 20 25 30 25 The pure tone threshold average for the right ear was 24 dB, and the left ear was 24 dB. The Veteran's speech discrimination score were 96 percent in the right ear and 100 percent in the left ear. The examiner did not provide an etiology opinion, because the Veteran did not present with hearing loss within the requirements of 38 C.F.R. § 3.385. The Board has considered the Veteran's contentions, as well as the October 2017 CNC speech discrimination scores (which using the Maryland CNC Test were less than 94 percent in each ear). However, accompanied by the negative nexus opinion, and pure tone thresholds being below the requirements for VA compensation, entitlement to service connection is still not established. Further, the reliability of those scores is also in question as later testing did not produce speech discrimination scores constituting a VA hearing loss disability. Absent probative evidence of a current hearing loss disability related to active service, the claim must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. As the evidence persuasively favors one side or the other, the doctrine is not for application. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307 (2021) at *11; 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 8. Restoration of service connection for a low back disability. The Veteran contends that the severance of service connection for a low back disability was improper. The Board agrees. 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 38 C.F.R. § 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 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 first 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 issued the proposed rating in May 2011, and the Veteran was notified at the 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 notice letter also informed the Veteran that he had the opportunity for a hearing if such a request for a hearing was received within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). While the Veteran did not request a hearing, he submitted, via his representative, a Notice of Disagreement/Notice of Intent to Appeal in July 2011. He additionally requested a VA examination to properly evaluate his back disability. In September 2011, the RO issued a decision severing service connection for the Veteran's lumbosacral strain effective December 1, 2011. Notice of this rating decision, plus appeal rights, was sent to the Veteran in September 2011. The December 1, 2011, effective date was greater than the last day of the month in which a 60-day period from the date of the September 2011 notice expired. Thus, all due process requirements were met in the severance of service connection for lumbosacral strain. See 38 C.F.R. § 3.105(d). Additionally, because the severance did not change the Veteran's overall rating, any due process errors did not prejudice the Veteran. Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for lumbosacral strain 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). In a September 2010 decision, the RO granted service connection for lumbosacral strain with a 10 percent rating. The decision reopened a previously denied claim for service connection based on the Veteran's lay statements and an examination which diagnosed chronic lumbar strain and degenerative joint disease of the lumbar spine. In May 2011, the RO proposed to sever service connection, stating that it was clear and unmistakable error to have granted service connection without first obtaining a medical opinion to link the Veteran's current lumbar disability to his active service. Following the grant to service connection, and opinion was obtained in which the examiner found that the Veteran's current disability was not related to his active duty service. In September, the RO severed service connection, effective December 1, 2011. To determine whether the September 2010 decision was the result of CUE, the Board must first decide whether 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. In this case, the medical facts were of record and before the adjudicator, the September 2010 decision cited the Veteran's lay statements and the available VA examination, to include a note from the radiological examination that the Veteran's lumbar spine deformity was likely related to old trauma. No specific nexus opinion obtained. The RO determined this was in error, as a medical link between the current condition and the Veteran's service is a required element of service connection. Next, the Board needs to consider whether the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated. It appears from the May 2011 notice that the RO was in disagreement in how the facts were evaluated, and wished to use a newer opinion concerning whether a link existed between the current disability and the Veteran's service. The opinion relied on in May 2011 was not in existence at the time of the September 2010 decision, and the examination note stating that the Veteran's lumbar deformity was the result of old trauma could be interpreted as an opinion of etiology, where the Veteran's statements of old trauma occurring during service are competent to provide a factual element. Here, it is clear that at the time of the September 2010 decision, the RO was aware that the Veteran's back injury had apparently healed during service, but considered the Veteran's lay assertions of chronic impairment, along with the medical evidence of a deformity related to old trauma in granting service connection. This appears to involve interpretation and weighing of evidence, and is not an undebatable error in the application of law. The opinion upon which the RO relied in the severance of service-connection was obtained after the September 2010 decision, and there were no new facts ascertained, only a change in opinion. This does not constitute CUE, and the Board finds the severance improper. Entitlement to service connection for chronic lumbosacral strain is restored. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.