Citation Nr: 0809844 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-37 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for a headache disorder. 2. Entitlement to restoration of service connection for a low back disorder. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from September 1950 to September 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, and a July 2005 rating decision of the Hartford RO in Newington, Connecticut. Although the RO determined that the veteran did not perfect an appeal with respect to the August 2002 decision, the Board has accepted an April 2003 statement from the veteran's representative as a timely substantive appeal on the severance issue. The veteran testified at a hearing before a Decision Review Officer at the RO in January 2003 and February 2006 and at a videoconference hearing before the undersigned Veterans Law Judge in November 2007. A transcript of each hearing is of record. The Board also notes that the RO issued a Statement of the Case in March 2003 that addressed the veteran's claim for a higher rating the service-connected status post dorsal spine fracture. In the cover letter sent with the Statement of the Case, the veteran was informed of the requirement that he submit a timely substantive appeal to perfect his appeal with respect to this issue. The issue was not thereafter addressed in any of the correspondence from either the veteran or his representative. Therefore, the Board has concluded that the veteran is not currently seeking appellate review with respect to this issue. The veteran's headache disorder claim is addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. Service connection for a low back disorder was granted in an October 2001 rating decision. 2. Evidence clearly and unmistakably establishing that the veteran does not have a low back disorder that originated in service was not of record at the time of the March 2003 rating decision severing service connection for a low back disorder. CONCLUSION OF LAW The requirements for severing service connection for a low back disorder were not met at the time of the March 2003 rating decision severing service connection for that disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.105, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury or disease during such service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Once service connection has been granted, it can be severed only upon the 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); see also Daniels v. Gober, 10 Vet. App. 474 (1997). Following notice of proposed severance, the veteran is entitled to 60 days for the presentation of additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.105(d). The Government bears the burden of proof. In this respect, the application of the clear and unmistakable error standard does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. Daniels, at 480. A change in diagnosis may be accepted as a basis for severance if the examining physician or physicians or other qualified medical authority certifies that in light of all the 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). The United States Court of Appeals for Veterans Claims (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. See Baughman v. Derwinski, 1 Vet. App. 563 (1991). 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 in the 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 the 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). Analysis In this case, the veteran is service-connected for status post dorsal spine fracture. Service connection for this disability was granted by rating action in March 1982 with an effective date of November 20, 1981. VA received an increased rating claim for this disability in September 2000. In an October 2001 rating decision, the RO granted entitlement to service connection for a low back disorder, effective September 14, 2000. The RO proposed in an August 2002 rating decision to sever service connection for the low back disorder. Severance was accomplished by rating decision dated in March 2003. The veteran has claimed that his in-service injury stemmed from a parachute exercise. The veteran's service personnel records show that he underwent Basic Airborne training at The Infantry School, and that his most significant assignment was to Service Company, 182nd Airborne Infantry Regiment. A service medical record dated in August 1952 states that the veteran reported completing at least 15 jumps at Fort Campbell, Kentucky, during the course of his Airborne training. Service medical records include one notation on a treatment record with the veteran's name pertaining to a complaint of recurrent backache, dated in December 1952. No diagnosis was made at the time. Service medical records for the veteran do not otherwise contain evidence of a back disorder. Service medical records do include, as the RO has pointed out, an April 1952 treatment record for, it appears, a different individual (very similar last name, different first name). This incorrectly included service medical record provides the only evidence of record addressing the matter of the dorsal spine or, specifically, any fracture of the dorsal spine. However, given the veteran's December 1952 service medical record noting a recurrent backache complaint, and given his documented participation in parachute exercises during Airborne training, the Board finds the occurrence of an in- service low back injury entirely consistent with the record. Medical evidence of record at the time of the RO's March 2003 rating decision severing service connection included a November 2000 VA X-ray report indicating that osteoarthritic disease of the veteran's lumbar spine (albeit minimal) had remained unchanged since February 1990. A November 2000 VA spine examination report notes that the veteran reported a history of chronic low back pain since the time of separation from service and shows that he was diagnosed with degenerative disease of the lumbar spine. Other medical evidence of a current low back disability was also of record in March 2003. Moreover, in support of his contention that service connection should not be severed, the veteran has submitted a May 2003 statement from his private physician essentially supporting the proposition that his current low back disability is related to service trauma. Certainly, the evidence cited above provides a tenable basis for finding that the veteran has a chronic low back disability as a result of service trauma. Therefore, the requirements for severing service connection have not been met. ORDER Restoration of service connection for low back disorder is granted, from the effective the date of the severance. REMAND The veteran testified at his Board videoconference hearing in November 2007 that he continues to receive VA treatment for his service-connected headache disorder. He specifically testified to having received VA treatment in October 2007 and to upcoming VA treatment he was scheduled to receive in December 2007. The absence in the claims file of VA treatment records since December 2006, the date of the most recent VA outpatient records of evidence, was also duly noted during the Board hearing. Following the November 2007 Board hearing, the record was held open for 90 days to give the veteran's representative time to try to procure these records. Unfortunately, the record remains devoid of VA treatment records for the period since December 2006. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The veteran has testified to the frequency of his headaches, which occur, he reports, between two to four times a week and compel him to lie down for anywhere between 10 minutes to one hour. Prior to the July 2005 rating decision granting service connection for headaches, the RO afforded the veteran a neurological examination in May 2005 to determine the nature and etiology of his claimed headache disorder. That examination report's findings are relevant to the issue of service connection but inadequate for present rating purposes. A new examination is required to procure medical findings that will enable the Board to decide whether the veteran's headache disorder manifests with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, or not. In light of these circumstances, this case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C., for the following actions: 1. The appellant should be provided the notice required under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), to include notice that he should submit any pertinent evidence in his possession. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the appellant, to include any outstanding VA treatment records since December 2006 from the West Haven Division, Connecticut Health Care System, VA Medical Center. If it is unsuccessful in obtaining any pertinent evidence identified by the appellant, the RO or the AMC should so inform the appellant and his representative and request them to provide the outstanding evidence. 3. Then, the veteran should be afforded an examination by a physician with appropriate expertise to determine the current degree of severity of his service-connected headache disorder. The claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should discuss whether the veteran's headaches have resulted in prostrating attacks, and if so, the examiner should describe the frequency of such attacks. The examiner should also provide an opinion concerning the impact of this disability on the veteran's ability to work. The rationale for all opinions expressed should also be provided. 4. The RO or the AMC should also undertake any other development it determines to be indicated. 5. Then, the RO or the AMC should readjudicate the issue remaining on appeal. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. By this remand, the Board intimates no opinion as to any final outcome of this case. The veteran need take no action until he is otherwise notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs