Citation Nr: 1035426 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 09-41 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE The propriety of severance of service connection for dysesthesias of the bilateral lower extremities. REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from September April 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified before the undersigned Veterans Law Judge via videoconference in June 2010. A transcript of his hearing has been associated with the record. FINDING OF FACT The evidence of record does not establish that the award of service connection for dysesthesias of the bilateral lower extremities was clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of the award of service connection for dysesthesias of the bilateral lower extremities was improper. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board acknowledges that as a general principle, VA has an obligation to notify claimants as to what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Further, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) that a claimant must be provided with adequate notice prior to the initial adjudication of his case by the agency of original jurisdiction. However, in this case, the appeal does not arise from adjudication of a claim made by the appellant; rather it arises from a severance of service connection by the RO. Therefore, it arises from action initiated by the RO, not the appellant. Moreover, as will be discussed below, severance of service connection requires compliance with particular notification procedures under the law, and the RO satisfied these requirements in the instant case. The Board observes that the appellant was previously sent correspondence in June 2005 which informed him of VA's basic duties to notify and assist, and he was afforded the opportunity to present testimony at a June 2010 hearing. Moreover, he was notified of the proposed severance in an August 2007 rating decision and afforded the appropriate time to respond to that proposal. The accompanying notice letter fully explained the process followed in severance of service connection. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims or, in this case, relevant to the proposed severance. Once this has been accomplished, all due process concerns have been satisfied. Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Overton v. Nicholson, 20 Vet. App. 427 (2006). In view of the foregoing, the Board finds that the Veteran was notified and made aware of the evidence needed to prevent severance of service connection, and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service- connected disability. 38 C.F.R. § 3.310 (2009). This includes disability made chronically worse by service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). VA has specific regulatory provisions governing severing service connection awards. The provisions of 38 C.F.R. § 3.105(d) direct, that subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application. 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. When severance of service connection 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 therefore 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. In order to sever a grant of service connection, the VA must demonstrate that the grant was clearly and unmistakably erroneous and that VA has followed the applicable procedural safeguards. The evidentiary standard for clear and unmistakable error (CUE) has been analyzed in a number of opinions by the U.S. Court of Appeals for Veterans Claims (Court). Most of these address the appeals of claimants seeking a finding of CUE in a past denial of benefits. However, the Court has held that the standard is equally applicable to VA where the issue is severance of service connection based on CUE. Once service connection has been granted, section 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof. Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 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.") There is a three-part test to determine whether a prior decision is the product of CUE: (1) "[e]ither 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," (2) 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 (3) a determination that there was CUE 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) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); Wilson v. West, 11 Vet. App. 383, 386 (1998). Although the same standards applied in a determination of CUE in a final decision are applied to a determination whether a decision granting service connection was the product of CUE for the purpose of severing service connection, 38 C.F.R. § 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. In fact, 38 C.F.R. § 3.105(d) specifically states that "[a] change in diagnosis may be accepted as a basis for severance," clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). Historically, the RO granted service connection for low back strain in a July 1971 rating decision. In an April 1998 rating decision, the disability was characterized as lumbosacral strain, postoperative discectomy L4-L5. In November 1998, the RO proposed to sever service connection for discectomy at L4-L5, and carried out such severance in a February 1999 rating decision. The evaluation for the Veteran's low back disability remained unchanged. Service connection for intervertebral disc disease was denied in a January 2003 rating decision. The Veteran submitted a claim for increase in June 2005. Subsequently, records from W.A.E., M.D., were received. They show that in December 2001, the Veteran reported a six week history of low back pain, which he attributed to a considerable amount of twisting, bending, and stooping at home as well at work. He complained of radiating pain to his right lower extremity. In May 2002, the Veteran reported left sided back and leg pain. A VA examination was carried out in May 2005. The examiner noted that the Veteran was service connected for lumbosacral strain and that he had undergone discectomy. The Veteran complained of dysesthesias down both legs. Following physical examination, the diagnosis was lumbosacral strain status post discectomy with subjective worsening of symptoms. The examiner noted that the Veteran also had dysesthesias as evidenced by involvement likely of intervertebral disc syndrome from his previous operative intervention. In a September 2005 rating decision, the RO granted service connection for bilateral dysesthesias of the lower extremities as secondary to the Veteran's low back disability. In the rating decision, the RO specifically noted that the evidence showed that the condition was related to the Veteran's low back disability. In March 2006 a VA examiner concluded that the Veteran's current left herniated disc with S1 radiculopathy was secondary to his postoperative L4-5 discectomy. In May 2007, another VA examiner concluded that the Veteran's bilateral dysesthesias and left lumbar radiculopathy were not related to low back strain, but to lumbar disc disease. In August 2007 the RO proposed to sever service connection for dysesthesias of the lower extremities based on error. It noted that service connection for L4-5 discectomy was severed in February 1999, and the severance was confirmed in a June 1999 rating decision. It also noted that the August 2005 VA examiner was not apprised that service connection was not in effect for residuals of the L4-5 discectomy and that he was not afforded the opportunity to delineate which symptoms were related to the service-connected lumbosacral strain and those related to the nonservice-connected residuals of discectomy. It stated that service connection was "inadvertently" established for dysesthesias. In an August 2007 statement, Dr. E. indicated his opinion that while the Veteran had clear exacerbations with events occurring at work, there was a clear continuum dating back to his service related injuries. He concluded that the work related exacerbations were a reflection in large part of the delicacy of his back as it pertained to the original service related injury. In a September 2007 letter, T.D., M.D. opined that while the Veteran had significant age-expected degenerative changes of his lumbar spine, it did appear that the symptoms he was currently having were a direct result of his initial service-connected difficulties dating to his service. In a March 2008 statement, C.N.B., M.D. opined that the Veteran's spine disease was out of proportion to his age, and that there was an antecedent injury in service. He pointed out that the orthopedist's opinion on which severance was based was not based on a literature review, and that the literature did not support the opinion. He noted that the attempt to attribute only a portion of the Veteran's current spine disease to the in-service injury was not supported in the literature, nor did it follow general rules concerning biomechanics. In December 2008 Dr. B. indicated that the Veteran's in-service spine injury likely weakened his spine ligaments and allowed his disc and ligament complex to fail in 1997 due to the fact that both injuries occurred at the same level. He opined that had the Veteran not experienced the in-service spine injury he likely would not have ruptured a disc in 1997. He concluded that MRI and clinical data all supported a longstanding low spine injury which was subsequently aggravated, resulting in a disc rupture and lower extremity dysesthesias and weakness. Having carefully reviewed the record, the Board finds that the September 2005 rating decision which granted service connection for dysesthesias of the bilateral lower extremities was not clearly and unmistakably erroneous. In this regard, the Board observes that the clear and unmistakable standard has been described as a "formidable" burden of proof and "means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). Here, it cannot be stated that the error was undebatable. Rather, there is evidence suggesting that the Veteran's entire back disability, to include the neurological symptoms for which he was grated service connection in September 2005, is related to service. As such, it cannot be said that the RO erred when it relied on the May 2005 VA examiner's opinion in granting service connection for dysesthesias of the lower extremities. In essence, following the grant of service connection, the RO reconsidered the evidence and determined that the benefit granted was not warranted. The Board notes that a dispute with respect to the manner in which the evidence is weighed does not meet the definition of CUE. As the burden to demonstrate clear and unmistakable error rests with the government, and such burden has not been met, the Board concludes that the severance of service connection for dysesthesias of the lower extremities was improper. In light of the above discussion, the Board finds that the record establishes that the award of service connection for dysesthesias of the bilateral lower extremities was not clearly and unmistakably erroneous. Accordingly, the Board concludes that the severance of the award of service connection was improper, and the appeal is granted. ORDER The severance of service connection for dysesthesias of the bilateral lower extremities was improper and the appeal is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs