Citation Nr: 1325296 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 11-20 061 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky THE ISSUES 1. Whether the severance of service connection for right hip degenerative arthritis effective as of September 30, 2010, was proper. 2. Entitlement to service connection for a lumbosacral spine disorder to include degenerative disc disease and facet syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and S. P. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from November 1988 to March 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Louisville, Kentucky, Regional Office (RO) which, in pertinent part, proposed to sever service connection for right hip degenerative arthritis and denied service connection for lumbar spine degenerative disc disease. In July 2010, the RO effectuated the proposed severance as of September 30, 2010. In February 2012, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. The Board has reframed the issue of service connection for a lumbar spine disorder as entitlement to service connection for a lumbosacral spine disorder to include degenerative disc disease and facet syndrome in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The issue of service connection for a lumbosacral spine disorder to include degenerative disc disease and facet syndrome is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. In November 2011, the Veteran submitted an informal claim of entitlement to service connection for both bilateral hearing loss and tinnitus. The issues have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them. The issues are referred to the RO for appropriate action. FINDING OF FACT The evidence of record does not establish that the award of service connection for right hip degenerative arthritis was clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of the award of service connection for right hip degenerative arthritis effective as of September 30, 2010, was improper. 38 U.S.C.A. §§ 5103, 5103A, 5112(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105(d), 3.159, 3.326(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board determines that the severance of the award of service connection for right hip degenerative arthritis effective as of September 30, 2010, was improper. Therefore, no further discussion of VA's duties to notify and to assist is necessary. II. Historical Review In November 2008, the Veteran submitted a claim of entitlement to service connection for a right hip disorder secondary to his multiple service-connected right foot and left foot disabilities. The report of a February 2009 VA joint examination states that contemporaneous X-ray studies of the right hip revealed findings consistent with degenerative arthritis. The Veteran was diagnosed with right hip degenerative arthritis. The examiner concluded that the Veteran "has a long history of abnormal gait which is related to his service-connected foot condition" and his right hip disorder "is as least as likely as not (50/50 probability) caused by or the result of feet disabilities." He clarified that: Even if the Veteran's degenerative joint disease of the right hip were unrelated to the abnormal gait induced by his foot condition, there appears ample justification to conclude that the Veteran's abnormal gait could induce pain by virtue of stress on the musculotendinous structures of the Veteran's right hip. Therefore, the Veteran's right hip condition is at least as likely as not (50% probability) caused by or the result of his service-connected foot disabilities. In March 2009, the RO granted service connection for right hip degenerative arthritis; assigned a 10 percent evaluation for that disability; and effectuated the award as of December 15, 2008. The report of a January 2010 VA joints examination diagnosed the Veteran with left hip degenerative arthritis. The examiner opined that the Veteran's left hip degenerative arthritis was "not caused by or a result of sc foot condition." The physician advanced no opinion specifically as to the etiology of the Veteran's right hip disorder. In April 2010, the RO proposed to sever service connection for right hip degenerative arthritis as the examiner at the January 2010 VA joints examination had conveyed that "degenerative joint disease is found in all people who live long enough" and "there is no support found in the medical literature for a foot disability causing degenerative changes of a hip." A May 2010 written statement from C. Bash, M.D., conveys that "it is my opinion that his lower extremity knee and hip and lumbar spine advanced for age degenerative disease is due to his service-connected abnormal gait/foot disease." In July 2010, the RO informed the Veteran that: Therefore, in the absence of a preponderance of the evidence that can link your current hip condition to either your military service or other service-connected disability, service connection is severed for this disability. Service connection for degenerative arthritis right hip is severed effective September 30, 2010, the last day of the month following due process, due to evidence indicating your foot disability did not cause your hip arthritis. An October 2010 written statement from R. Sheridan, M.D., states that he had examined the Veteran. Contemporaneous X-ray studies of the hips were reported to reveal osteoarthritis of both hips. Dr. Sheridan concluded that the Veteran "has a history of pes planus and surgery on both great toes, twice on the right, and has altered gait mechanics which have led to ... the development of precocious symmetrical osteoarthritis in both hips." The report of a March 2011 VA joints examination states that the Veteran was diagnosed with right hip degenerative joint disease. The examiners commented that: In summary, the committee advises that a foot condition does not stand in casual relationship to an elevated BMI, and that the Veteran's gait disturbance is not causal to his right hip and back conditions. Therefore, the Veteran's currently diagnosed right hip and low back condition are not caused by or a result of his service-connected bilateral pes planus with plantar fasciitis. In the June 2011 statement of the case (SOC) issued to the Veteran, the RO indicated that: Service connection was proposed to be severed because it was noted in your recent evaluation that your type of gait change did not cause any increase stress upon your hips. The doctor noted that actually your gait change created less force upon the hip. It was also noted that this disability did not manifested (sic) while you were on active duty or manifest to a compensable degree within one year of your separation from service (38 C.F.R. § 3.309). *** Service connection for right hip degenerative arthritis to include as secondary to the service-connected disability of bilateral pes planus with plantar fasciitis is denied as this condition was not incurred in or aggravated by your military service and is not shown to be caused by or aggravated by your service-connected bilateral pes planus with plantar fasciitis. III. Severance of Service Connection for Right Hip Degenerative Arthritis The Veteran asserts that service connection for right hip degenerative arthritis was improperly severed as VA and private physicians have diagnosed the disorder as being secondary to the altered gait associated with his multiple service-connected right foot and left foot disabilities. In order to sever a grant of service connection, VA must demonstrate that the grant was clearly and unmistakably erroneous and that VA has followed the applicable procedural safeguards. 38 U.S.C.A. § 5112; 38 C.F.R. § 3.105. The provisions of 38 C.F.R. § 3.105(d) direct that: (d) Severance of service connection. 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 therefor 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. VA will sever service connection "only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government)." Clear and unmistakable error is "a very specific and rare 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). Such errors "are undebatable; that is, reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Graves v. Brown, 6 Vet. App. 166, 170 (1994). If service connection is severed based on a lesser standard, it is erroneous as a matter of law. See Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006); Graves, 6 Vet. App. at 170; Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Generally, there is a three-part test to determine whether a prior decision is the product of clear and unmistakable error (CUE): (1) 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, (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). The Court has clarified that: And, although the Court has equated the standards for severance of service connection and for demonstrating CUE in a prior final VA decision, there are critical differences that render equating those standards an over simplification. In this regard, we note that the Secretary's regulation providing for the severance of service connection, in 1980 and today, is written in the present tense. See 38 C.F.R. § 3.105(d). Consequently, the severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current "evidence establishes that [service connection] is clearly erroneous." 38 C.F.R. § 3.105(d) (emphasis added). Hence, the Secretary's burden in a severance proceeding in finding clearly erroneous the diagnosis upon which the original award of service connection was based is not a requirement that he prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111, i.e., the Secretary is not limited to the law and the record that existed at the time of the original decision. Section 3.105(d), through its provision that a change in diagnosis may be accepted as a basis for severance, necessarily contemplates that the Secretary is not limited in the same manner as a claimant attempting to demonstrate CUE in a prior final decision. Daniels v. Gober, 10 Vet. App. 474, 480 (1997). VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Id. "If 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 ... later developments in the factual record." Id. (quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997) (Steinberg, J., concurring)). Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006) In reviewing the probative evidence of record, the Board observes that the RO did not sever service connection for right hip degenerative arthritis based upon specific CUE. Rather, the severance was based upon the RO giving greater weight to certain adverse VA medical opinions. The record reflects that while VA examiners at the January 2010 and March 2011 VA examinations opined that right hip degenerative arthritis was not related to either active service or the Veteran's service-connected bilateral pes planus with plantar fasciitis, the examiner at the February 2009 VA examination and both Drs. Bash and Sheridan concluded that right hip degenerative arthritis was related to the altered gait arising from the Veteran's multiple service-connected right foot and left foot disabilities. Given the multiple divergent and competent opinions from VA and private medical professionals, the Board finds that the claimed error in the award of service connection for right hip degenerative arthritis does not constitute CUE. The claimed error is not such as where "reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Further, the RO failed to identify any specific CUE in the award of service connection for right hip degenerative arthritis. In its July 2010 severance decision, the RO stated that service connection was being severed "in the absence of a preponderance of the evidence that can link your current hip condition to either your military service or other service-connected disability." Such a finding does not establish CUE and is based solely upon a weighing of the probative evidence of record after the award of service connection. Indeed, it appears that the RO was impermissibly readjudicating the issue of service connection. As service connection for right hip degenerative arthritis was severed based on a standard less than CUE, it is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. at 488. ORDER Severance of service connection for right hip degenerative arthritis as of September 20, 2010, was improper. REMAND The Veteran asserts that service connection for a lumbosacral spine disorder is warranted as the claimed disorder is related to his wearing heavy body armor in Iraq or, in the alternative, is secondary to his multiple service-connected bilateral lower extremity disorders. At the February 2012 videoconference hearing before the undersigned Veterans Law Judge, the Veteran testified that he received ongoing lumbosacral spine treatment at the Lexington, Kentucky, VA Medical Center (VAMC). VA clinical documentation dated after September 2012 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). In reviewing the record, the Board observes that there appears to be a conflict in the examination findings as to the etiology of the Veteran's lumbosacral spine disorders. The report of the January 2010 VA spine examination notes that a November 2009 VA treatment record reflects that the Veteran had been diagnosed with "lumbar spondylosis secondary to abnormal gait," degenerative disc disease, and mild sacroiliitis. The examiner diagnosed the Veteran with lumbosacral spine degenerative disc disease and degenerative joint disease which was "not caused by or a result of" the Veteran's bilateral foot disabilities. The May 2010 written statement from Dr. Bash conveys that "it is my opinion that his lower extremity knee and hip and lumbar spine advanced for age degenerative disease is due to his service-connected abnormal gait/foot disease." The October 2010 written statement from Dr. Sheridan states the Veteran "has a history of pes planus and surgery on both great toes, twice on the right, and has altered gait mechanics which have led to the formation of underlying degenerative disc disease and bulging discs at L4-5 and L5-S1." The report of the March 2011 VA joints examination states that "the Veteran's currently diagnosed right hip and low back condition are not caused by or a result of his service-connected bilateral pes planus with plantar fasciitis." VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the apparently conflicting medical opinions, the Board finds that further VA evaluation is necessary in resolving the issues raised by the instant appeal. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all post-service treatment of his lumbosacral spine disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If the identified documentation is not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided at the Lexington, Kentucky, VAMC after September 2012. 3. Then schedule the Veteran for a VA orthopedic examination for compensation purposes in order to assist in determining the current nature and etiology of his lumbosacral spine disabilities. If possible, the examination should be conducted before a physician who has not previously examined the Veteran. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or greater) that any identified lumbosacral spine disorder had its onset during active service; otherwise originated during active service; and/or is related to and/or increased in severity beyond its natural progression due to the Veteran's service-connected disabilities. The service-connected disabilities are bilateral pes planus with plantar fasciitis; post-operative right hallux valgus with hammertoe and arthritis; post-operative left hallux valgus with hammertoe and arthritis; right hip degenerative arthritis; foot scars; obstructive sleep apnea; and reflux/Barrett's esophagus. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. The examiner should provide a rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Thereafter, ensure that the development above has been completed in accordance with the Remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the issue of service connection for a lumbosacral spine disorder to include degenerative disc disease and facet syndrome. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 2002). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs