Citation Nr: 1124547 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-36 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether severance of service connection for sciatic neuropathy, left lower extremity was proper. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from February 1959 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A hearing was held on May 12, 2011, by means of video conferencing equipment with the appellant in Chicago, Illinois, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record does not establish that the grant of service connection for sciatic neuropathy, left lower extremity was undebatably erroneous. CONCLUSION OF LAW The severance of the award of service connection for sciatic neuropathy, left lower extremity was improper. 38 U.S.C.A. §§ 1110, 1131, 1151, 5109A, (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As to the claim for restoration of service connection for sciatic neuropathy, left lower extremity, the decision is favorable to the Veteran and therefore there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). LAW AND ANALYSIS Severance Under VA laws and regulations, when a Veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.358, 3.361. For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). In this case, the Veteran must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. In determining that additional disability exists, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnoses and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). The record shows that the RO granted service connection for sciatic neuropathy (left foot drop) under 38 U.S.C.A. § 1151 in a June 2001 rating decision. In the April 2006 rating decision, the RO proposed to sever service connection for sciatic neuropathy, left lower extremity on the basis that clear and unmistakable error (CUE) was made in the June 2001 rating decision. By the rating decision dated in February 2007 that is on appeal, the RO implemented the severance, effective April 30, 2007. Once service connection has been granted, it will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous (the burden of proof being on the Government). See 38 C.F.R. § 3.105(d) (2010); see also Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell v. Principi, 3 Vet. App. 310, 313 (1992)). The error must be undebatable and of the sort that, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. When VA seeks to sever service connection, the provisions of 38 C.F.R. § 3.105(d) impose the same burden of proof that is placed on a claimant who, pursuant to 38 C.F.R. § 3.105(a), seeks to have an unfavorable decision overturned, except that in making the determination of whether severance of service connection is proper, the review of the record is not limited to evidence that was before the RO at the time the original adjudication was made. See 38 C.F.R. § 3.105(d); Baughmann v. Derwinski, 1 Vet. App. 563, 566 (1991); Stallworth, 20 Vet. App. at 488; Daniels, 10 Vet. App. at 480. Initially, the Board finds that the RO complied with its notification obligations under 38 C.F.R. § 3.105(d). When the RO proposed to sever service connection for sciatic neuropathy, left lower extremity, the Veteran was advised of the action by an April 2006 letter, which also informed him that he could request a hearing within 30 days and submit evidence within 60 days of the proposed severance. He did not request a hearing at that time. In short, the RO satisfied the procedural requirements of 38 C.F.R. § 3.105(d). Accordingly, the remaining issue is whether the severance was proper in accordance with the applicable law and regulations. In the February 2007 rating decision, the RO severed service connection for sciatic neuropathy, left lower extremity on the basis that the June 2001 rating decision contained CUE. The RO specifically noted that the evidence did not show that there was negligence on VA's part in causing the Veteran's additional disability. The RO explained that merely showing that there was an additional disability was not sufficient to establish causation. There was no error in judgment or an "event reasonably foreseeable" due to VA negligence. The RO indicated that the June 2001 rating decision improperly applied the provisions of 38 U.S.C.A. § 1151 to the facts of the case. The evidence of record at the time of the June 2001 rating decision that granted compensation benefits under 38 U.S.C.A. § 1151 for sciatic neuropathy, left lower extremity included VA treatment records, and the April 2001 VA examination report. The Veteran contended that he developed neuropathy of the left lower extremity following a left hip replacement in May 2000. The discharge summary dated in May 2000 shows that the Veteran underwent a left hip replacement and on the third day post operation, the Veteran began to experience tingling in his left foot. The VA physician explained that the Veteran developed a late peroneal palsy, the etiology of which was unknown. Possibly the peroneal palsy could be related to pressure either on the sciatic nerve while lying in bed or pressure on the peroneal nerve while lying in bed or lastly, possibly due to hematoma collection in his incision. He did not have significant sanguinous drainage from his wound so the hematoma possibility was eliminated. The VA treatment records also show that the Veteran was assessed with left foot drop. The April 2001 VA examiner noted that the Veteran had a left total hip replacement which was complicated with peroneal nerve palsy. The RO granted service connection for sciatic neuropathy, left lower extremity under 38 U.S.C.A. § 1151 based on a review of the medical evidence of record and determining that the Veteran's disability was the result of VA care or treatment. In reviewing the June 2001 rating decision, the Board observes that the RO listed the pertinent evidence of record and appeared to apply the provisions of 38 U.S.C.A. § 1151 to the facts of the case. The RO determined that the Veteran was entitled to service connection because his additional disability resulted from medical treatment. The Board acknowledges that the RO did not specifically address whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA in either furnishing hospital care or medical/surgical treatment which proximately caused the additional disability. However, even though the RO did not mention whether VA was at fault, this does not show that the RO unreasonably applied the law to the facts of the case. In fact, given the circumstances of this case, it appears quite reasonable that service connection was warranted for sciatic neuropathy, left lower extremity. As noted above, in order to sever benefits, VA must show that the June 2001 rating decision's ultimate conclusion to grant service connection for sciatic neuropathy, left lower extremity was clearly and unmistakably erroneous. Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In this case, this rigid standard simply has not been met. The medical evidence does raise question as to whether the Veteran's additional disability was due to VA fault in treatment or care, but does not indicate that the June 2001 grant of service connection was based on undebatable error. Although it is not undebatable that service connection under 38 U.S.C.A. § 1151 was not warranted for the disability on appeal based on the evidence that was before the RO at the time of the June 2001 rating decision, as noted previously, the review of the record is not solely limited to evidence that was before the RO at the time the original adjudication was made for severance cases. A significant amount of new evidence has been added to the claims file since the June 2001 rating decision. The relevant evidence includes private treatment records and VA treatment records. The evidence of record contains both positive and negative evidence concerning the Veteran's claim. The August 2004 VA physician explained that the Veteran's neuropathy occurred two to three days post-operation, suggesting that it was not due to an operation, but compression of some form during the recovery period. In another VA treatment record dated in September 2005, the examining physician noted that the Veteran developed neuropathic pain following his hip replacement. In addition, the June 2004 VA examiner explained that the Veteran's sciatic neuropathy was more likely as not a complication of the left total hip arthroplasty in 2000. While the claims file contains evidence that suggests that the Veteran's disability might be unrelated to his VA treatment, the evidence does not undebatably compel that conclusion. Thus, it cannot be said that the June 2001 award of service connection for sciatic neuropathy, left lower extremity involved CUE. Accordingly, severance of service connection for sciatic neuropathy, left lower extremity was not proper and service connection for that disability must be restored. 38 C.F.R. §§ 3.105(d). ORDER As severance of service connection for sciatic neuropathy, left lower extremity was improper, service connection is restored. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs