Citation Nr: 0026176 Decision Date: 09/29/00 Archive Date: 10/04/00 DOCKET NO. 97-11 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE The propriety of severance of service connection for degenerative disc disease and arthritis of the left shoulder. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robin M. Webb, Associate Counsel INTRODUCTION The veteran had active service from February 1968 to July 1970. This appeal arises before the Board of Veterans' Appeals (Board) from a rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which severed service connection for a low back condition and a left shoulder condition, as the earlier grant of service connection had been clearly and unmistakably erroneous. Initially, the Board notes that neither the veteran nor his service representative have asserted procedural deficiencies in the RO's severance of service connection, and current review by the Board shows that the RO complied with the provisions of 38 C.F.R. § 3.105(d) (1999). As such, the Board will focus its analysis on the substantive considerations of the veteran's claim. FINDING OF FACT The factual basis for the grant of service connection for degenerative disc disease and arthritis of the left shoulder in the July 1995 rating decision was tenable; therefore, the July 1995 rating decision does not contain clear and unmistakable error, and severance of service connection for degenerative disc disease and arthritis of the left shoulder is improper. CONCLUSION OF LAW The July 1995 rating decision does not contain clear and unmistakable error in its grant of service connection for degenerative disc disease and arthritis of the left shoulder, and service connection was improperly severed. 38 U.S.C.A. §§ 1110, 5112(b)(6) (West 1991); 38 C.F.R. §§ 3.105(d), 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Applicable Law and Regulations 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) (1999); see also Daniels v. Gober, 10 Vet. App. 474 (1997); Graves v. Brown, 6 Vet. App. 166, 170-71 (1994). Specifically, when severance of service connection is 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 therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.105(d); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, Court) has held that 38 C.F.R. § 3.105(d) places the same burden of proof on VA when it seeks to sever service connection as 38 C.F.R. § 3.105(a) places upon a claimant seeking to have an unfavorable previous determination overturned. Baughman v. Derwinski, supra. Clear and unmistakable error is a very specific and 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. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To determine whether clear and unmistakable error is present under 38 C.F.R. § 3.105(a) in a prior determination, 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 the time were incorrectly applied; 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 a determination that there was clear and unmistakable error 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, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). However, although the same standards apply in a determination of clear and unmistakable error in a final decision under section 3.105(a) and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection under section 3.105(d), section 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. Daniels v. Gober, supra. Because 38 C.F.R. § 3.105(d) specifically states that "[a] change in diagnosis may be accepted as a basis for severance," the regulation clearly contemplates the consideration of evidence acquired after the original granting of service connection. Thus, "[i]f the Court were to conclude that...a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, 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." Id. II. Factual Background The veteran's service medical records indicate that in September 1968 the veteran injured his chest while lifting a pipe, which slipped and fell on him. The diagnosis was contusion of the chest region. These records also indicate that the veteran was provisionally diagnosed with bursitis of the left shoulder in May 1970, when he complained of left shoulder pain that radiated down to the elbow and into the fingers. A contemporaneous x-ray study of the veteran's left shoulder was negative. There is no separation examination of record. A May 1995 letter from one of the veteran's chiropractors indicates that the veteran was seen six times in 1983 and twice in 1986 for a lumbar sprain. The veteran had not been seen by the chiropractor since then. A June 1995 VA spine examination reflects the veteran's reports of having been struck in the back by a pipe in 1968. He had been hospitalized for several months and then returned to duty. Since then, the veteran stated that he had had back pain, with paresthesias in the right leg over the past few years. The veteran also stated that he had had no medical or surgical treatment for this. Subsequent to physical examination, the diagnosis was degenerative disc disease, L4- L5, L5-S1, with L5-S1 radiculopathy in the right leg. A June 1995 VA joints examination reflects the veteran's complaints of pain in the left shoulder over the past 15 years. The veteran recalled no specific history of trauma, and he stated that he had received no medical treatment for shoulder. Subsequent to physical examination, the diagnoses were arthritis of the left shoulder, with moderate to marked limitation of motion; rotator cuff degeneration. A July 1995 MRI of the lumbar spine showed a right-sided disc bulge, versus focal herniation at L2-3. There was also left- sided osteophytic ridging at L5-S1, which impinged the proximal left S1 root. An MRI of the veteran's left shoulder showed degenerative changes, with a calcified axillary lymph node. In connection with the veteran's appeal as to severance of service connection, the record was supplemented with VA treatment records (dated from July 1995 to April 1996) and VA examinations (conducted in December 1995 and in July 1999). None of this clinical evidence specifically addresses the etiology or causation of the veteran's degenerative disc disease or arthritis in the left shoulder. While the July 1999 examiner expressed opinions regarding whether he thought the veteran's back and shoulder disabilities were related to the injuries in service, he indicated that his opinion, with regard to the shoulder, was based primarily on the "discontinuity" in medical documentation of shoulder problems from service until the early 1980's At his RO hearing (conducted in June 1997), the veteran testified that he had been hit with a pipe in 1968, when a truck he was in stopped abruptly, and the pipes knocked him to the ground. (Transcript (T.) at 3). He received treatment at the George Air Force Base hospital and was released a few weeks later. Id. The veteran stated that they had wanted to put him on light duty at that time, but he had wanted to complete his training. Id. The veteran clarified that he had been thrown off the truck in this incident and that he had landed on his back. (T. at 4). The veteran had injured both his chest and his back in this incident. Id. With respect to his left shoulder, the veteran stated that he had been a mechanical jet installer in service. (T. at 7). This had called for a lot of heavy work, including a tremendous amount of engine rollbacks. Id. He had had to assemble engines by hand, which had entailed constant pushing from the waste up and shoulders. Id. The veteran testified that he had complained about his shoulders while stationed in Thailand. (T. at 8). The veteran indicated that he had not complained more about the pain in his shoulders, as that would have gone on his record. (T. at 10). The veteran also indicated that he had been told at his first compensation and pension examination that his conditions were related to service. (T. at 17-18). The record was also supplemented with the veteran's testimony at his hearing before a traveling Member of the Board (conducted in July 2000). The veteran reiterated that he had injured his back in 1968, when a truck stopped abruptly, and a pipe had knocked him to the ground, and that his shoulder injury was due to having been a jet engine installer, which had entailed a lot of physical activity. (T. at 3-7) The veteran also described a continuation of his back and shoulder complaints after service, for which he was seen by several private physicians who are now deceased. (T. at 9- 14). III. Analysis As noted above, the Board will not consider whether there were any procedural deficiencies in the RO's severance of service connection, as neither the veteran nor his representative have asserted such deficiencies, and current review by the Board shows that the RO complied with the provisions of 38 C.F.R. § 3.105(d). With respect to substantive consideration of the RO's severance of service connection, however, the Board finds that such severance was improper in this instance. The veteran's appeal is granted, as the July 1995 rating decision does not contain clear and unmistakable error. Specifically, as to the evidence before the RO in July 1995 when it granted service connection for degenerative disc disease and arthritis of the left shoulder, the Board notes that the veteran's service medical records do indeed document an injury to the veteran's chest in September 1968, when he was struck by a pipe. They also document the veteran's complaints of left shoulder pain in May 1970, which was provisionally diagnosed as bursitis. The Board also notes that the June 1995 VA spine and joints examinations reflect a service medical history, as reported by the veteran, which is supported by the veteran's service medical records. In turn, subsequent to physical examinations, both examination reports reflect clinical diagnoses of current disabilities. While neither examiner explicitly stated in the recorded diagnoses that the veteran's degenerative disc disease and arthritis of the left shoulder were caused by the noted in-service events, the Board stresses that the diagnoses were given after taking medical histories that are silent as to any significant post- service events. In effect, the examinations and diagnoses were conducted and made within the historical context of the veteran injuring himself in service. Further, the Board notes that there is no evidence in the record (whether as constituted in July 1995 or as supplemented in connection with the proposed severance of service connection and this appeal) directly and explicitly contradicting the veteran's reported in-service events and their relationship to his degenerative disc disease and arthritis of the left shoulder. As discussed above, case law holds that 38 C.F.R. § 3.105(d) places the same burden of proof on VA when it seeks to sever service connection as 38 C.F.R. § 3.105(a) places upon a claimant seeking to have an unfavorable previous determination overturned. See Baughman v. Derwinski, supra. Further, clear and unmistakable error is a very specific and 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. See Fugo v. Brown, supra. In this instance, given documentation contained within the veteran's service medical records, coupled with the medical histories given upon VA examinations in June 1995 and the attendant recorded diagnoses, the Board finds the RO's July 1995 rating decision that granted service connection for degenerative disc disease and arthritis of the left shoulder tenable, e. g., plausible. While the Board would not necessarily find the evidence of record sufficient for a grant of service connection for these two disabilities upon de novo review, the Board stresses that that is not the proper inquiry at this time. Instead, the Board must ask, in part, whether reasonable minds could differ as to the grant of service connection. In this instance, the Board finds that such minds can. As such, the Board does not find that but for the purported error made (no direct clinical evidence of a nexus), the result would have been manifestly different. ORDER The July 1995 rating decision does not contain clear and unmistakable error in its grant of service connection for degenerative disc disease and arthritis of the left shoulder, and service connection is not, therefore, severed; the veteran's appeal is granted. V. L. Jordan Veterans Law Judge Board of Veterans' Appeals - 9 - - 8 -