Citation Nr: 0315793 Decision Date: 07/14/03 Archive Date: 07/22/03 DOCKET NO. 00-12 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. The propriety of the severance of service connection for Horner's syndrome with trigeminal neuralgia. 2. Entitlement to service connection for headaches as secondary to Horner's syndrome. (The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability will be the subject of a later decision.) REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from August 1967 to March 1970. Initially, the Board of Veterans' Appeals (Board) notes that in addition to appealing regional office (RO) determinations regarding the propriety of the severance of service connection for Horner's syndrome with trigeminal neuralgia, entitlement to service connection for headaches as secondary to Horner's syndrome, and entitlement to a total disability rating based on individual unemployability, the veteran's representative has also filed a motion to vacate the Board's previous decision of May 2000 on the basis that the Board's determination that an April 2000 representative's statement did not constitute a substantive appeal as to the issue of the propriety of the severance of service connection for Horner's syndrome was rendered without due process. That motion need not be addressed because the veteran submitted a valid substantive appeal on or about May 23, 2000. The BVA decision was entered approximately two weeks before the VA Form 9, dated May 23, 2000. Therefore, the legal argument raised by the representative's motion is essentially moot. In other words, the veteran's appeal of the correctness of the severance of service connection remains on appeal and will be decided because the Form 9 was timely filed. The Board further notes that it is contended that issues of entitlement to separate ratings for fibromyalgia, lumbosacral strain, and cervical strain, the timeliness of the appeal on the issue of the propriety of severance of service connection for a congenital lesion of the spine with degenerative changes, and whether new and material evidence has been submitted to reopen the claim for service connection for congenital lesion of the spine with degenerative changes are proper matters for current appellate consideration. However, the Board's review of the claims file does not reflect that a timely substantive appeal was filed by the veteran with respect to any of these issues. Consequently, the Board finds that it does not currently have jurisdiction to consider any of these matters. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability will be addressed in a later decision. FINDINGS OF FACT 1. Service connection for Horner's syndrome was established in October 1996 based on an appropriate weighing of the evidence by the RO. Severance of service connection for Horner's syndrome based on additional evidence submitted since October 1996 merely amounted to the reweighing of evidence to reach a different conclusion, and this cannot constitute clear and unmistakable error (CUE) on which to base a decision to sever. 2. The veteran's headaches are related to service-connected disability. CONCLUSIONS OF LAW 1. The rating decision of October 1996 did not contain CUE in its grant of service connection for Horner's syndrome, and service connection for Horner's syndrome was not properly severed. 38 U.S.C.A. §§ 1110, 5112(b)(6) (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309 (2002). 2. The veteran's headaches are causally related to service- connected disability. 38 C.F.R. § 3.310(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background At the outset, the Board finds that this matter has already been developed pursuant to the guidelines established in the recently enacted Veterans Claims Assistance Act of 2000, 38 U.S.C.A. § 5103A (West 2002) (VCAA). In this regard, the Board has determined that the severance of service connection for Horner's syndrome was improper and has additionally granted service connection for headaches as secondary to Horner's syndrome. Thus, any failure to notify and/or develop under the VCAA cannot be considered prejudicial to the veteran. In addition, the January 2003 supplemental statement of the case advised the veteran of his rights under the VCAA and of the evidence that had been developed during the pendency of these claims, and thus, the veteran was aware of the evidence that he needed to provide in light of that development. Quartuccio v. Prinicipi, 16 Vet. App. 183 (2002). The veteran was also provided with the applicable law and regulations, and there is no indication that there are any outstanding pertinent documents or records that have not been obtained or that are not adequately addressed in documents already contained in the claims file. Accordingly, the Board finds that further notice and/or development in this case is not required under the VCAA. 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) (2002); 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 therefor and will thereafter 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 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, hereafter, "the Court") has held that 38 C.F.R. § 3.105(d) places the same burden of proof on the Department of Veterans Affairs (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, 1 Vet. App. at 566. Clear and unmistakable error is defined as "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" was 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) (en banc)). However, it has been held that 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, 10 Vet. App. at 480. The Court reasoned that 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. To establish a valid claim of CUE, however, it must still be shown that '[e]ither the correct facts, as they were known at the time, were not before the adjudicator[,] or the statutory or regulatory provisions extant at the time were incorrectly applied. The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.'" Luallen v. Brown, 8 Vet. App. 92, 94 (1995), quoting Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2002). An August 1994 VA outpatient record reflects an assessment of possible cluster headaches. An October 1996 rating decision reflects that service connection for Horner's syndrome was established based on service medical records, post-service medical evidence, and statements from the veteran. While the service medical records did not show a head injury, the rating decision found that it was clear from the nature of the disability and from the veteran's statements that he was referring to the incident of August 1967 when a tent pole fell over and struck him in the lower dorsal and upper lumbar area. Thereafter, it was noted that the veteran complained of discomfort in the neck, shoulders, dorsal and upper lumbar areas. Although Horner's syndrome was not reported until VA examination in March 1992, the examiner expressed the opinion that it was secondary to the veteran's reported injury in service, and similar opinions endorsed this diagnosis in outpatient records. In fact, July 1996 neurological examination was conducted for the expressed purpose of addressing this issue, and the examiner offered a similar opinion albeit in unequivocal terms. While noting that the disorder was not documented in the records until recently, the July 1996 examiner believed that the history of a drooping eyelid in service was significant for the diagnosis. Noting that Horner's syndrome's symptoms of constricted pupil, ptosis, and facial anhidrosis arose from a lesion at C8 to T1, and that the veteran's back injury was described as being at the level of the lower dorsal and upper lumbar spine, the RO found that the veteran did complain of neck and shoulder pain afterwards and that physicians had related the condition to service, despite the absence of specific evidence of injury to the cervical spine. As the various medical records were unanimous in considering the condition as secondary to the in-service injury, the RO resolved reasonable doubt in favor of the veteran and granted the claim. January 1997 VA muscles examination revealed the history of neck, shoulder and low back complaints following the in- service tent pole accident. A January 1997 X-ray of the cervical spine was interpreted to reveal slight encroachment of the C3-4 neural exit foramen on the left and C5-6 neural exit foramen on the right, by posterolateral osteophyte. VA outpatient records for the period of September 1995 to April 1997 were received in June 1997 and reflect periodic evaluation for Horner's syndrome. These records also indicate that in October 1995, the veteran complained that he still got headaches. VA visual examination in November 1997 revealed a diagnosis that included migraine headaches. November 1998 VA neurological examination revealed that the examiner reviewed the claims file and other available medical records and noted that the history of the veteran's headaches dated back to an injury while erecting a tent in service. The examiner opined that the veteran's headaches, all of which were migraine, were in fact caused by Horner's syndrome. An August 1999 rating decision proposed to severe service connection for Horner's syndrome pursuant to 38 C.F.R. § 3.105(a) and (d) (2002). More specifically, it was noted that an October 1985 VA outpatient treatment report identified two prior head injuries, one in service and one as a result of an automobile accident in 1976. The veteran also reported an episode of loss of consciousness in 1982 which required emergency room treatment. A statement from Dr. S. from September 1998 indicates that there had been a diagnosis of Horner's syndrome with trigeminal neuralgia following neck and spine injury in 1967. The RO again reviewed the service medical records and found that they failed to show any injury to the cervical spine or trauma to the head or shoulders. The RO also found that there was no evidence to indicate that the veteran had headaches immediately following the incident or that he suffered from them continuously after service, and that the earliest complaints of a problem with headaches in the veteran's records occurred in September 1995. Despite this, following November 1998 VA examination, the examiner indicated a history of headaches since the tent pole incident. However, an addendum report from another VA examiner, Dr. H., reflects his opinion that the veteran's headaches of Horner's syndrome may be related to service, but that he believed that their origin was secondary to events subsequent to service. Dr. H. further opined that Dr. S.'s clinical notes were incorrect in that they were likely based on misinformation provided to him when taking the veteran's history. The RO also noted that in a May 1999 statement, the veteran offered an explanation that the September 1985 history was inaccurate in that he was relaying the history of his father's physical problems and not his own. The RO concluded that the evidence in the record now clearly established that the Horner's syndrome for which service connection had been established was secondary to trauma which occurred after active service, and proposed to severe service connection on the basis that the opinion of Dr. H. opined that the diagnosis of Dr. S. was based solely on the veteran's history provided to the examiner's by the veteran and not on the objective findings of military and civilian physicians. A December 1999 statement from Dr. S. reflects the medical history that during basic training in 1967, the veteran sustained a neck and spinal cord injury. At the veteran's personal hearing in February 2000, the veteran testified that while constructing a tent during basic training, one of the tent poles broke, and part of the pole struck the veteran's lower back, and the other part struck at the base of his neck (transcript (T.) at p. 2). He was either knocked out or dazed as a result of being struck, and was taken to the dispensary (T. at pp. 2-3). Several days later, he was sent to the hospital where X-rays were taken and he was given various medications (T. at pp. 3-4). The veteran also noted that he had a headaches and severe neck pain following the injury (T. at p. 4). The veteran also noted that physicians had explained to him that his current headaches were related to Horner's syndrome (T. at p. 7). The veteran acknowledged that he sustained trauma to his nose in an automobile accident in 1976, but described the trauma as minor in nature (T. at p. 12). In a February 2000 rating decision, the RO severed service connection for Horner's syndrome based primarily on the fact that the injury documented in the service medical records did not involve the area of the spine which was associated with Horner's syndrome. A March 2001 VA medical statement from Dr. W. reflects her review of the veteran's medical records and opinion that service and post-service medical notes indicated neck pain was present at the time of the original injury and that headaches developed later but were felt to be associated with the trauma either as migraines, Horner's, or possibly due to fibromyalgia. In a January 2003 medical statement, Dr. W. indicated that the veteran had been followed by her for the previous 20 years for chronic back pain (neck, upper, mid and lower back areas) and fibromyalgias. She further noted that the medical history had been obtained from the veteran and his service medical records. II. Analysis Turning first to the issue of severance, the Board has carefully reviewed and considered the evidence of record and notes that the RO is certainly correct that it is permissible in severance cases to consider evidence that was not of record at the time of the rating decision in question, and in this regard, that evidence includes the medical opinion of Dr. H. that has been relied upon as evidence that clearly reflects error in the establishment of service connection for Horner's syndrome in the October 1996 rating decision. However, the Board's review of that opinion does not reflect that it is so clear and/or persuasive, and, in any event, other governing principles of CUE law warrant a finding that severance was not proper. This subject was explored at considerable length by the representative in his brief dated April 3, 2003. Essentially, that presentation is found persuasive. With respect to the specifics of Dr. H., the Board again notes that Dr. H. indicated that he could find no supporting evidence for head trauma in service, nor chronic headaches. He also noted that the veteran had a subsequent automobile accident in 1976, an episode of cardiac arrest in 1982, and that Horner's syndrome was first documented in 1995. It was the opinion of Dr. H. that migraine headaches suffered by the veteran (are either idiopathic or post-traumatic) are non- related to military service. Further, Dr. H. opined that the Horner's syndrome could be related to trauma to the cervical neck structure related to automobile accident, a basilar skull fracture suffered at the time of the motor vehicle accident, or brain injury in the lateral part of the medulla at cardiac arrest (or subsequently). Dr. H. then goes on to comment that the migraine headaches and Horner's syndrome may be related, but in either case (related or unrelated), they were believed to have had their origin secondary to events which occurred after military service. Dr. H. believed that Dr. S.'s clinic notes were incorrect, likely based on misinformation provided to him when taking a patient's history. Thus, Dr. H.'s opinion that Horner's syndrome and/or headaches could be related to trauma from an automobile accident or brain injury from cardiac arrest verges on speculation and of diminished probative value. Moreover, his opinion that there is no documented in-service evidence of such trauma has been contradicted by evidence of in-service complaints of neck pain. However, as was alluded to above, even if the Board were in total agreement that Dr. H. did clearly and persuasively articulate that service connection was not warranted, the Board would still not be able to affirm severance in this matter. First, the RO acknowledges that the primary reason for severance was the lack of specific contemporaneous in- service evidence of injury to the cervical area that would be consistent with a diagnosis of Horner's syndrome. However, the rating decision that established service connection for this disability specifically acknowledged that there was no such evidence, and still weighed the evidence and found that medical opinions and other evidence warranted service connection. The Board further notes that the RO's position and opinion of Dr. H. have also not gone unchallenged, with the medical statements of Dr. W. indicating that in-service complaints of neck pain in part served as the basis for the medical history that supported her opinion that Horner's syndrome was related to service. Thus, there continues to be evidence on both sides of the issue that requires weighing of the evidence, and such weighing of the evidence cannot constitute clear and unmistakable error. As was noted previously, in order to establish CUE, there must be more than just a disagreement as to how the facts were weighed or evaluated.'" Luallen v. Brown, 8 Vet. App. 92, 94 (1995), quoting Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Accordingly, the Board finds that severance of service connection for Horner's syndrome with trigeminal neuralgia was not proper. Having found that severance of service connection for Horner's syndrome was not proper, the Board is now permitted to reach the issue of entitlement to service connection for headaches as secondary to Horner's syndrome under 38 C.F.R. § 3.310(a) (2002), and in this regard, the Board notes that there is evidence that links current headaches to such disability. More specifically, the November 1998 VA neurological examiner opined that the veteran's headaches, all of which were migraine, were in fact caused by Horner's syndrome, and even Dr. H. remarked that that the headaches and Horner's syndrome may be related. Thus, the Board notes that several opinions opine a relationship between the veteran's Horner's syndrome and migraine headaches, that there is no medical opinion squarely against such a relationship, and that giving the veteran the benefit of the doubt, the Board finds that the evidence warrants the grant of service connection for headaches as secondary to service-connected Horner's syndrome. ORDER Clear and unmistakable error in the grant of service connection for Horner's syndrome with trigeminal neuralgia not having been shown, severance of service connection for Horner's syndrome with trigeminal neuralgia was improper; accordingly, service connection for that disability is restored. Service connection for headaches as secondary to Horner's syndrome is granted. ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.