Citation Nr: 1323082 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-21 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether the severance of service connection was proper for lumbar degenerative disc disease (L4-5). 2. Whether the severance of service connection was proper for bilateral leg radiculopathy associated with lumbar degenerative disc disease. 3. Entitlement to an initial disability rating in excess of 20 percent for a lumbar spine disability. 4. Entitlement to a disability rating in excess of 40 percent for a left (major) arm disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to June 1965. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions dated in January 2008, July 2008, and February 2010 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2009 the Veteran testified at a RO hearing before a Decision Review Officer. In May 2012, the Veteran testified via videoconference before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In May 2013, the Veteran submitted additional private medical records concerning an April 2013 diskectomy for treatment of left leg radiculopathy and a signed statement from his surgeon dated in May 2013. Those submissions were accompanied by a signed waiver of initial RO consideration that newly-submitted evidence. Therefore, the Board accepts that additional evidence for inclusion in the record. 38 C.F.R. § 20.800 (2012). The Board has reviewed the claims file and the Virtual VA electronic file. The issues of entitlement to an initial disability rating in excess of 20 percent for a low back disability, entitlement to a disability rating in excess of 40 percent for left arm numbness and radicular pain, and entitlement to a TDIU are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The evidence does not show that the grant of service connection for degenerative disc disease of the lumbar spine at the L4-5 level was clearly and unmistakably erroneous. 2. The evidence does not show that the grant of service connection for radiculopathy of the right leg was clearly and unmistakably erroneous. 3. The evidence does not show that the grant of service connection for radiculopathy of the left leg was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The criteria to sever service connection for degenerative disc disease of the lumbar spine at the L4-5 level have not been met. 38 U.S.C.A. §§ 1110, 5109A (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria to sever service connection for right leg radiculopathy have not been met. 38 U.S.C.A. §§ 1110, 5109A (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.310 (2012). 3. The criteria to sever service connection for left leg radiculopathy have not been met. 38 U.S.C.A. §§ 1110, 5109A (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection shall also be awarded when a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); Libertine v. Brown, 9 Vet. App. 521 (1996); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also service-connected. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service connected disability. Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous, the burden being on VA, and only where certain procedural requirements have been met. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997); 38 C.F.R. § 3.105(d) (2012). Severance of service connection based on any standard less than that set forth in 38 C.F.R. § 3.105(d) is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Graves v. Brown, 6 Vet. App. 166 (1994); Baughman v. Derwinski, 1 Vet. App. 563 (1991). The provisions regarding severance of service connection contemplate consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. 38 C.F.R. § 3.105(d) (2012); Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Allen v. Nicholson, 21 Vet. App. 54 (2007); Venturella v. Gober, 10 Vet. App. 340 (1997). The severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence shows that service connection is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). 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 reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome so that based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. In a January 2008 rating decision, the RO granted service connection for low back strain to include degenerative disc disease at the L4-5 level as secondary to the Veteran's service-connected left arm numbness and radicular pain, probable thoracic outlet syndrome vs. cervical radiculopathy (major), and awarded a 20 percent disability rating. The RO explained that the October 2007 VA examiner had opined that the Veteran's low back condition was at least as likely as not due to the left arm disability. In that same decision, the RO also granted service connection for bilateral leg radiculopathy, secondary to the service-connected low back strain to include degenerative disc disease, and awarded separate 10 percent disability ratings for each leg. The RO explained that the October 2007 VA examination showed that radiculopathy of the bilateral lower extremities was likely due to the Veteran's disc disease. The RO proposed to sever service connection for degenerative disc disease at the L4-5 level and for bilateral leg radiculopathy in June 2009 proposed decision that found that the January 2008 rating decision was clearly and unmistakably erroneous because there was no medical evidence relating the degenerative disc disease to the low back strain or left arm numbness, and radiculopathy of the bilateral lower extremities was only due to the degenerative disc disease. The RO noted that the October 2007 VA examiner had opined that he could not determine the etiology of the disc bulge without resorting to speculation. The RO also noted that aggravation could not be determined. In addition, the October 2007 VA examiner opined in April 2009, after a further review of the claims file and medical literature, that thoracic outlet syndrome, part of the Veteran's service-connected left arm disability, was not related in any way to the Veteran's lower disc disease or radiculopathy and that he could not find any secondary service connection or aggravation issues. The RO then severed service connection for all three disabilities in a February 2010 rating decision. The basis of the severance was clear and unmistakable error in the January 2008 rating decision that had granted service connection. The RO noted that a July 2009 VA examiner had opined that it was less likely than not that the Veteran's degenerative disc disease was the result of his service-connected low back strain. In a December 2009 addendum, the July 2009 VA examiner also opined that the Veteran's "back injury" (apparently referring to his degenerative disc disease) was due to repetitive stress over a lifetime and was not caused or aggravated by service or his service-connected back disability, apparently meaning his service-connected low back strain. The RO also noted that the July 2009 VA examination showed that the Veteran's right leg and left leg radiculopathy were due to the disc disease and were not the result of his low back strain. The Board notes that the Veteran and his representative have consistently asserted there was no clear and unmistakable error in the rating decision which granted service connection and they have maintained that VA resolved any reasonable doubt that may have existed in the medical evidence in favor of the Veteran a the time of the original grant of service connection. Although not mentioned in the RO decision severing service connection, the Board notes that the July 2009 VA examiner's opinion also stated that the examiner felt confident that the Veteran's service-connected low back strain and any repetitive low back strains may have aggravated his degenerative disc condition with bilateral radiculopathy. In June 2011, the October 2007 VA examiner reviewed the claims file and noted that the Veteran appeared to have had extensive activity and use of the back over time. The examiner opined that it was less likely that the Veteran's degenerative disc disease of his lumbar spine was due to his service-connected low back strain or to active duty. The VA physician based that opinion on the fact that the Veteran appeared to have had only one isolated event in service, but to have performed strenuous activity over the years. The October 2007 VA examiner further opined that the Veteran's degenerative disc disease of the lumbar spine was more likely due to the natural progression of disease with age. The examiner also stated that he saw no evidence of aggravation. In August 2011, the October 2007 VA examiner further the remarks of June 2011 and repeated the opinion that it was less likely that the Veteran's degenerative disc disease of the lumbar spine was due to a service-connected low back strain. The examiner based that on extensive degenerative disc disease throughout the cervical spine and lower back and the Veteran's age of 67. The examiner explained that more weight should be placed on natural progression of disease with age rather than a service-connected low back strain because the likelihood of having degenerative disease was quite good as time progressed. Again, the examiner found no evidence to suggest an aggravation. The examiner noted that extensive disease in the cervical spine and degenerative disease in the lower back indicated a natural progression of the disease with age being a major factor. During the May 2012 Board hearing, the Veteran testified that the electric motor he picked up as a high school shop teacher which was referred to in some medical examinations as a possible cause of his degenerative disc disease was only a one quarter horse electric motor, perhaps eight inches long and six inches in diameter. Private medical evidence dated April 2013 from Dr. D.J.T., the Veteran's surgeon, shows that the Veteran underwent back surgery for a L5-S1 diskectomy for treatment of his left leg radiculopathy. In a cover letter dated in May 2013, the surgeon opined that the Veteran's current condition was related to his prior body mechanics utilized during service which prompted upper back and lower back problems. The physician also opined that the Veteran's current back condition was related to osteoarthritis from past work. On the basis of the evidence, the Board finds that the January 2008 rating decision granting service connection for degenerative disc disease of the lumbar spine and for radiculopathy of the bilateral legs was not clearly and unmistakably erroneous. In rendering that decision, the RO considered the available evidence then of record and applied the law. At that time, the October 2007 VA examiner had opined that the Veteran's back condition was at least as likely as not due to his service-connected left arm disorder and that his bilateral radiculopathy was likely due to his disc disease. While the October 2007 VA examiner stated that he could not determine the etiology of the degenerative disc disease without resorting to speculation, that examiner noted that the Veteran overused his lower back many times over the years to favor his upper back and service-connected left arm disorder. Even considering the evidence that post-dates the award of service connection, the Board finds that the evidence still does not establish that service connection is clearly and unmistakably erroneous. The October 2007 VA examiner provided two additional medical opinions, in June 2011 and August 2011, which found that it was less likely that the Veteran's degenerative disc disease of the lumbar spine was due to his service-connected low back strain. Those opinions appeared to rest on that examiner's belief that the Veteran's degenerative disc disease was a function of aging. The July 2009 VA examiner also opined that it was less likely than not that the Veteran's degenerative disc disease was the result of his service-connected low back strain and was in fact due to repetitive lifetime stress. The opinions of those examiners were couched in terms of that it was "less likely" than not. That level of certainty of opinion does not support any finding that the grant of service connection was clearly and unmistakably erroneous. In addition, there is a positive opinion in the form of the same July 2009 VA examination report that supported secondary service connection for degenerative disc disease of the lumbar spine and bilateral radiculopathy based on aggravation by the Veteran's service-connected low back strain. Moreover, the Veteran's private surgeon opined in May 2013 that the Veteran's current back condition, including a L5-S1 disc bulge and nerve impairment, was related to prior body mechanics used during service which prompted upper back and lower back problems. Reasonable minds can differ as to whether the Veteran's degenerative disc disease of the lumbar spine was caused or aggravated by his service-connected low back strain or by his service-connected left arm disorder and thoracic outlet syndrome because there are conflicting medical opinions of approximately the same probative value. Even if the negative opinions were of more probative value in the opinion of the Board at this time, that does not show that service connection was clearly and unmistakably erroneous, as reasonable minds could differ in interpretation and weighing of the evidence. The granting of secondary service connection for degenerative disc disease of the lumbar spine and for radiculopathy of the bilateral legs requires weighing of the evidence. Reasonable minds may differ on the weighing of evidence. The RO clearly had a difference of opinion in how the evidence was weighed both before and after it granted secondary service connection. However, the Board finds that the RO applied an incorrect legal standard when it relied on the June 2011 and August 2011 medical opinions where the October 2007 VA examiner found that it was "less likely" that the Veteran's degenerative disc disease of the lumbar spine was due to his service-connected low back strain. Severance of service connection requires the more demanding "clear and unmistakable error" standard. In view of the opinion of the July 2009 VA examiner that he was "confidant" that the Veteran's service-connected low back strain had aggravated the Veteran's degenerative disc disease of the lumbar spine and the private medical opinion of the Veteran's surgeon in May 2013 that the Veteran's current back condition was due to prior body mechanics utilized during service which prompted upper body and lower body problems, the Board must find that there was no clear and unmistakable error in the January 2008 rating decision that would have manifestly changed the outcome of granting service connection. Therefore, the Board finds that the evidence of record does not establish that the award of service connection for degenerative disc disease of the lumbar spine and for radiculopathy of the bilateral legs was clearly and unmistakably erroneous. In the absence of such a finding, the Board concludes that the severance of the award of service connection for all three disabilities, effective May 1, 2010, was improper. Reasonable doubt has been resolved in favor of the Veteran in making this decision. The Board finds that the appeal must be granted and service connection for the three claims on appeal must be restored. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The severance of service connection for lumbar degenerative disc disease was improper, and restoration of service connection, effective May 1, 2010, is granted. The severance of service connection for right leg radiculopathy was improper, and restoration of service connection, effective May 1, 2010, is granted. The severance of service connection for left leg radiculopathy was improper, and restoration of service connection, effective May 1, 2010, is granted. REMAND Unfortunately, a remand of the Veteran's remaining claims on appeal is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Concerning the Veteran's claims for higher ratings for his service-connected back disability and left arm disability, the Veteran and his representative indicated during his May 2012 Board hearing that the disabilities had worsened since the time a functional capacity statement was issued in 2009. A review of the record also shows that the Veteran maintained in a March 2010 signed statement that his left arm disability had worsened. The Board also notes that a new VA spine examination is in order because the claim for a higher rating for the Veteran's service-connected back disorder is inextricably intertwined with restoration of service connection for degenerative disc disease of the lumbar spine and for radiculopathy of the bilateral legs allowed in the decision above. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board has resolved the Veteran's severance of service connection claims in favor of the Veteran, his claim for an initial disability rating in excess of 20 percent for low back strain now must include his restored degenerative disc disease of the lumbar spine. Therefore, the Veteran should be scheduled for a VA examination to assess the current severity of the back and left arm disorders on appeal. Concerning the TDIU claim, the Board notes that claim is inextricably intertwined with the Veteran's pending higher rating issues which are being remanded, and must be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Here, the TDIU claim should be adjudicated after ratings are adjudicated for the Veteran's service-connected disabilities. On remand, any outstanding relevant medical records should be obtained. The Veteran submitted back surgery records dated in April 2013 and any additional records should be obtain from the Bryan Medical Center. The November 2011 supplemental statement of the case reviewed the Veteran's VA treatment records as of September 2011. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand all relevant VA medical records dated since September 2011 should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for back or left arm disabilities. After the Veteran has signed the appropriate releases, attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, to include any private post-surgical treatment records related to his April 2013 back surgery and any records from the VA clinic in Lincoln, Nebraska, dated since November 2011. 2. After any additional evidence has been associated with the claims file, schedule the Veteran for VA orthopedic and neurologic examinations to ascertain the severity of his service-connected back and left arm disorders. The examiner must review the claims file and must note that review in the report. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record. In addition, the examiner should comment on whether the service-connected disabilities make the Veteran unable to secure or follow substantially gainful employment. 3. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs