Citation Nr: 23019237 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 15-19 130 DATE: March 29, 2023 ORDER The severance of service connection for hematuria was proper; restoration of service connection for hematuria is denied. REMANDED Service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT In February 2014, the VA adjudicator made an erroneous factual finding in granting service connection for hematuria. CONCLUSION OF LAW The severance of service connection for hematuria was proper; the criteria for restoration of service connection for hematuria have not been met. 38 U.S.C. § 5112 (2018); 38 C.F.R. § 3.105 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to April 1970. These matters came before the Board of Veterans' Appeals (Board) on appeal from February 2014 and September 2015 rating decisions issued by Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge in a hearing at the AOJ in April 2018. A transcript of the hearing is of record. Most recently, the Board remanded these issues for additional development in August 2020. In pertinent part, the Board instructed the AOJ to attempt to obtain in-patient hospital records from Fort Riley during the Veteran's period of service. The AOJ made multiple attempts to obtain the in-patient hospital records from Fort Riley. In July 2022, the AOJ notified the Veteran that VA contacted the National Personnel Records Center (NPRC) to obtain the records; however, the response received from NPRC indicated no clinical records were located. Accordingly, VA determined that all efforts to obtain the needed information have been exhausted and further attempts to obtain the records would be futile. See 38 C.F.R. § 3.159 (c)(2). Accordingly, the requested development has been completed and the case is returned to the Board for appellate disposition. Further, the Board notes, that a retroactive increase will not be awarded after basic entitlement has been terminated, such as by severance of service connection. Thus, a claim for an increased rating for the hematuria prior to the severance of service connection is not before the Board and the only issue before the Board is the propriety of the severance of service connection for hematuria. See 38 C.F.R. § 3.400 (o)(1). Finally, the appeal originally included the issue of entitlement to service connection for a heart disability. In December 2022, the AOJ granted service connection for coronary artery disease/atherosclerotic cardiovascular disease with stable angina and diastolic dysfunction effective December 7, 2012. Therefore, the claim for service connection for a heart disability has been resolved and is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). Whether the severance of service connection for hematuria was proper The AOJ initially granted service connection for hematuria in a February 2014 rating decision. The AOJ determined that service connection had been established as directly related to military service. The AOJ assigned a noncompensable rating for the hematuria. In April 2015, the AOJ issued a rating decision proposing to sever service connection. The AOJ explained that February 2014 rating decision granted service connection for hematuria based on the February 2014 VA examiner's opinion that the current hematuria was related to treatment the Veteran received in-service in March 1991. However, the AOJ noted that the Veteran's period of active service was from September 1966 to April 1970; he was not on active duty in March 1991, when it was first documented that he had hematuria. The AOJ concluded that the opinion was based on flawed information and had no probative value. Moreover, the AOJ found that hematuria was a laboratory finding and not a disability; the AOJ determined that the treatment records did not show evidence of a chronic disability. Thus, the AOJ concluded that the grant of service connection was in error. The September 2015 rating decision severed service connection for hematuria. The AOJ reiterated the findings of the April 2015 rating decision proposing to sever service connection. Moreover, the AOJ noted the additional treatment records did not show treatment for a current disability manifested by hematuria. Service connection will be severed only where evidence establishes that the award of service connection was clear and unmistakable error (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. See id. 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. Id. A decision that is reversed or amended based on 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 (internal quotations omitted). The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The Board finds that it did. The AOJ issued the proposed ratings in April 2015. The Veteran was notified in April 2015 at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days to present additional evidence to show that service connection should be maintained. The April 2015 notice letter also informed the Veteran that he had the opportunity for a predetermination 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 declined the opportunity to testify at a predetermination hearing. The AOJ issued the September 2015 rating decision, which severed service connection. Notification of this rating decision, plus his appeal rights, was sent to the Veteran in a September 2015 letter. Thus, all due process requirements were met in severing service connection for hematuria. See 38 C.F.R. § 3.105(d). The remaining question before the Board is whether the grant of service connection was clearly and unmistakably erroneous. The Board finds the severance was proper. It is clear and unmistakable that at the time of the grant of service connection, there was no competent evidence linking any findings of hematuria to disease or injury sustained during the Veteran's period of service. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted) (observing that "the word 'unmistakable' means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. A January 1970 service treatment record reflects that the Veteran had experienced urethral discharge and dysuria intermittently for the previous 5 months. The impression was nonspecific urethritis. Service treatment records, otherwise, contain no complaints of treatment for or diagnosis of hematuria. The March 1970 separation examination report reflects that clinical evaluation of the G-U (genitourinary) system was unremarkable. Dated approximately 20 years after service, a May 1990 treatment record documents the Veteran experienced occasional hematuria. An August 1990 VA examination report documents history of hematuria, etiology undetermined. The February 2014 VA urinary tract conditions examination report documents diagnosis of hematuria. The examiner noted that service treatment records documented treatment for urethral discharge and dysuria in January 1978 and noted there was mention of dysuria in March 1991 but no diagnosis of record. The examiner opined that the Veteran's hematuria was at least as likely as not related to the hematuria documented in his service treatment records in March 1991. However, the examiner concluded that the Veteran's hematuria was mild and the cause was not evident in his military record. A March 2015 VA treatment record documents the Veteran's complaint that he experienced intermittent hematuria. In a statement received in April 2018, the Veteran stated that he was unsure how blood wound up in his urine but reported it was undetectable to him until he received treatment at the VA medical center. He suggested the strain he suffered during his period of service may have contributed to the hematuria. The granting of service connection was based on the adjudicator's clearly erroneous factual finding that service connection had been established as directly related to military service. The Board reiterates that the Veteran served on active duty from September 1966 to April 1970. He did not have a period of service in March 1991. Moreover, although the February 2014 VA urinary tract conditions examination report reflects the examiner's opinion that the Veteran's hematuria was at least as likely as not related to the hematuria documented in his service treatment records in March 1991, the examiner explained, in pertinent part, that the cause of the Veteran's hematuria was not evident in his military record. Simply stated, the competent evidence unmistakably shows the onset of the hematuria approximately 20 years after the Veteran's period of service (see May 1990 treatment record documenting the Veteran's complaint that he experienced occasional hematuria). The Veteran has not presented any evidence of a current urinary disability manifested by hematuria due to disease or injury incurred during his period of service. The appeal is denied. The severance of service connection was proper and restoration of service connection for hematuria is denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder Upon a careful review of the evidence of record, the Board finds that a remand is needed to properly decide the remaining issue on appeal. A VA medical opinion as to whether an acquired psychiatric disorder is related to service was most recently obtained in July 2019. At the time, the examiner responded "yes" to the question "[d]oes the Veteran now have or has he/she ever been diagnosed with a mental disorder(s)?" However, the examiner did not specify what those mental disorders are/were or when the diagnoses occurred. Rather, it appears the examiner attempted to note the diagnoses during the course of providing the nexus opinion. But, it remains unclear as to whether the Veteran currently has or has had a psychiatric diagnosis at any point during the appellate period and whether such is related to service. In this regard, the Board notes that while saying the Veteran had suffered from a mental health disability, two questions later, the examiner stated "No mental health disorder diagnosis." Moreover, later in the report the examiner stated that the Veteran was experiencing a depressed mood, without specifying if this was a symptom or an actual diagnosis of a disability. Moreover, in the rationale for the nexus opinion, the examiner seems to state that any mental health disabilities had resolved while also stating that "[h]is diagnoses that occurred from 2012 through current." Then provides a negative nexus opinion referring only to the "claimed condition" without specifying which disability specifically was being addressed. Upon review of the above, the Board finds it is unclear as to whether the Veteran has a current mental health disability and/or whether any mental health disability diagnosed at any point during the appeal period, and whether any such diagnosed disability is related to service. As such, a new medical opinion is needed prior to deciding the appeal. The matter is REMANDED for the following action: 1. Obtain a medical opinion, from a different examiner than the one who provided the July 219 opinion, with examination of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran's psychological disability(ies). The examiner must review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion that responds to the following: (a.) Please identify, by diagnosis, the Veteran's psychological disorder(s) present during the appeal period (from December 2012). The examiner is asked to provide a list of said diagnoses together with the date of the diagnoses and, if resolved, the date it resolved. (b.) For each disorder diagnosed, at any point during the appeal period or since December 2012 whether resolved or current, is it at least as likely as not (50% or greater probability)that the disorder was incurred in or otherwise related to the Veteran's military service? Please explain why. The Veteran's in-service diagnosis of a personality disorder, his testimony that his personality changed after falling down stairs during service, and his statement that he was hung from a fence for 12 hours and jailed during service must be discussed. A complete rationale for any all opinions rendered must be provided. Merely a recitation of facts or a statement concerning the absence of evidence after the Veteran's military service will not be considered adequate. 6. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackson, Graig 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.