DIABETES MELLITUS

KRISTI L. GUNN · 2024 · Case ID: 24001172

GRANTED

Summary

The veteran, who served from August 1968 to April 1970, appeals the severance of service connection for diabetes mellitus type II and the denial of service connection for bilateral lower extremity neuropathy and hypertension. The veteran contended that the severance of his diabetes claim was clear and unmistakable error (CUE) and that his neuropathy and hypertension were secondary to his diabetes or due to herbicide exposure during service in Korea. The Board found that the veteran's service in Korea, coupled with evidence that his unit's duties took them near the DMZ, established exposure to herbicide agents. Consequently, the Board found the severance of diabetes service connection to be improper, granting the appeal for diabetes. The Board also found sufficient evidence to establish service connection for bilateral lower extremity neuropathy as secondary to diabetes, citing examiner notations indicating the neuropathy was a complication of diabetes. For hypertension, the Board granted service connection both presumptively under the PACT Act due to herbicide exposure and secondarily due to diabetes, supported by a favorable VA examiner opinion. The appeal for diabetes, bilateral lower extremity neuropathy, and hypertension was granted.

Rationale

Severance of service connection for diabetes was improper.; Veteran served in Korea near DMZ, establishing herbicide exposure.; No CUE found in original grant of service connection for diabetes.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-14 436

Full Decision Text

Citation Nr: 24001172
Decision Date: 01/08/24 Archive Date: 01/08/24

DOCKET NO. 20-14 436
3DATE: January 8, 2024

ORDER

The severance of service connection for diabetes mellitus type II (diabetes), to include as due to exposure to herbicide agents, was improper; the appeal is granted.

Entitlement to service connection for right lower extremity neuropathy, to include as secondary to diabetes, is granted.

Entitlement to service connection for left lower extremity neuropathy, to include as secondary to diabetes, is granted.

Entitlement to service connection for hypertension, to include as secondary to diabetes, is granted.

FINDINGS OF FACT

1. It was not clear and unmistakable error (CUE) as a matter of law or fact that the Veteran did not have exposure to herbicide agents during his service in Korea.

2. The Veteran's right lower extremity peripheral neuropathy is proximately due to his service connected diabetes.

3. The Veteran's left lower extremity peripheral neuropathy is proximately due to his service connected diabetes.

4. The Veteran's hypertension is proximately due to his service connected diabetes.

CONCLUSIONS OF LAW

1. The severance of service connection for diabetes was improper; the criteria for restoration of service connection for diabetes have been met. 38?U.S.C. §?5112; 38?C.F.R. §?3.105.

2. The criteria for service connection for right lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

3. The criteria for service connection for left lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

4. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1968 to April 1970.

These matters are on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) regional office (RO).

The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript has been associated with the file.

Severance Claim

The Veteran contends the severance of service connection for his diabetes was erroneous.

The RO granted entitlement to service connection for diabetes in a June 2013 rating decision.

In a May 2017 rating decision, the RO proposed to sever service connection for diabetes. The RO said the evidence did not show the Veteran had been exposed to herbicide agents while in Korea.

In July 2017, the RO severed service connection for diabetes, effective October1, 2017, with notice sent to the Veteran in the same month.

Previously granted benefits 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 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
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).

To establish that a grant of benefits 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 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 RO followed the due process requirements of 38?C.F.R. §?3.105(d) for severing service connection. The Board finds that it did.

The RO issued the proposed severance in a May 2017 rating decision. The Veteran was sent a notification in the same month at his latest address of record of this contemplated action and furnished detailed reasons therefore and was given 60 days for the presentation of additional evidence to show that benefits should be maintained. The 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 did not request such a hearing.

The RO issued the July 2017 rating decision, which severed service connection for diabetes, effective October 1, 2017. Notification of this rating decision, plus his appeal rights, was sent to the Veteran in the same month. The Board finds that this effective date was proper as it was greater than the last day of the month in which a 60-day period from the date the July 2017 notice expired. See 38?C.F.R. §?3.105(d).

The remaining question before the Board is whether the grant of service connection for neuralgia was CUE. For
38?C.F.R. §?3.105(i). The Veteran did not request such a hearing.

The remaining question before the Board is whether the grant of service connection for neuralgia was CUE. For the following reasons, the Board finds there was not CUE in the grant of service connection for diabetes.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In addition to direct service connection as discuss above, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6).

For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii).

That the Veteran has been diagnosed with diabetes is not in question.

The question is whether the Veteran had qualifying service that exposed him to herbicides. The Veteran's military personnel records indicate he had service in Korea during the requisite time period discussed above. Thus, the remaining question is whether the Veteran had service in or near the DMZ while serving in Korea. In August 2017, the Veteran submitted a yearbook from his unit. This submission included reports that the Veteran's unit, while stationed outside of the DMZ, had duties that took them often near the DMZ. (See August 2017Military Personnel Records, August 2021 hearing transcript.)

The Board finds there was no CUE in the original grant of service connection for diabetes. The Board finds there is sufficient evidence indicating the Veteran served in Korea and that his duties took him near the DMZ, thus exposing him to herbicide agents. Therefore, the severance of service connection for diabetes was improper, the appeal is granted.

Service Connection Claims

The Veteran contends he has bilateral lower extremity neuropathy that is due to his time in service or that is proximately due to his service connected diabetes.

In addition to the theories of entitlement discussed in the section above, service connection may also be established on a secondary basis.

To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Veteran has been diagnosed with bilateral lower extremity peripheral neuropathy. The Veteran had an examination for his diabetes and its resulting complications of diabetes in December 2016. The examiner, in response to the question, "Does the Veteran have any of the following recognized complications of diabetes?" Indicated the Veteran had
service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Veteran has been diagnosed with bilateral lower extremity peripheral neuropathy. The Veteran had an examination for his diabetes and its resulting complications of diabetes in December 2016. The examiner, in response to the question, "Does the Veteran have any of the following recognized complications of diabetes?" Indicated the Veteran had peripheral neuropathy. Additionally, at the end of the examination, the examiner stated that besides the Veteran's underlying diabetes, he had developed peripheral neuropathy.

In a separate December 2016 examination, specifically for his diabetic peripheral neuropathy, the examiner again reported the diagnosis.

While the Board notes the Veteran has not had a separate examination and etiology opinion for his bilateral lower extremity peripheral neuropathy to determine whether it is at least as likely as not proximately due to his diabetes, the Board finds the notations in the December 2016 to be quite clear. The Veteran's peripheral neuropathy was clearly a complication of his diabetes. Thus, resolving any doubt in favor of the Veteran, the Board will grant service connection for bilateral lower extremity neuropathy as secondary to his diabetes.

The Board turns next to the Veteran's claim to service connection for hypertension. The Veteran was diagnosed with hypertension in 2007. (See e.g. December 2016 examination.)

The Veteran contends that his hypertension is due to his exposure to herbicides in Korea or that it is otherwise proximately due to his service connected diabetes. As noted above, the Veteran's exposure to herbicides due to his Korea service is established.

On August 10, 2022, the President signed into law the Pact Act which added hypertension to the list of disease presumed to be associated with exposure to herbicide agents. See PACT Act of 2022, Publ. L. 117-168, 136 Stat. 1759 (2022).

The Veteran has been diagnosed with hypertension and as discussed above, his exposure to herbicide agents is conceded.

On September 30, 2022, the VA Secretary signed an Executive Decision Memorandum which permitted the Board to begin granting service connection for disabilities, such as hypertension, that have phased in applicability dates under the Pact Act. Therefore, pursuant to the Pact Act, service connection for hypertension is warranted. However, even more beneficially, the Veteran is entitled to service connection for hypertension on a secondary basis.

A December 2016 examiner opined it was at least as likely as not the Veteran's hypertension was proximately due to his service connected disabilities. The examiner explained that the Veteran's longstanding diabetes and peripheral neuropathy would make him more likely to have hypertension.

Because the Veteran is now again service connected for diabetes, the Board finds service connection for hypertension on a secondary basis is warranted and the claim will be granted.

Kristi Gunn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Snoparsky, A.

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.

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