Citation Nr: 1330415 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-48 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Propriety of the severance of service connection for degenerative joint disease of the lumbar spine with right lower extremity radiculopathy. 2. Propriety of severance of entitlement to a total disability rating based on individual unemployability (TDIU). 3. Propriety of severance of eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Larry Schuh, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from June 1975 to November 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing in front of the undersigned Acting Veteran's Law Judge was held in July 2013. A transcript of the hearing has been associated with the Veteran's Virtual VA file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A rating decision dated November 2007, granted service connection for degenerative joint disease of the lumbar spine. A rating decision of February 2008, granted service connection for radiculopathy of the right lower extremity due to degenerative joint disease of the lumbar spine, and entitlement to TDIU and educational benefits under Chapter 35. 2. The RO proposed severance of service connection for degenerative joint disease of the lumbar spine, radiculopathy of the right lower extremity, TDIU, and educational benefits under Chapter 35 in March 2010 and the Veteran received written notice of the proposed severance by letter dated that same month. 3. Severance of service connection for degenerative joint disease of the lumbar spine, radiculopathy of the right lower extremity, TDIU, and educational benefits under Chapter 35 was made effective via a May 2010 rating decision. 4. The grants of service connection for degenerative joint disease of the lumbar spine, radiculopathy of the right lower extremity, and entitlement to TDIU and educational benefits under Chapter 35 are not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. As the criteria for severance of service connection are not met, severance of service connection for degenerative joint disease of the lumbar spine with right lower extremity radiculopathy, was not proper. 38 U.S.C.A. § 5112(b)(6), (10) (West 2002); 38 C.F.R. §§ 3.105(d), 3.114(b) (2012). 2. As the criteria for severance of entitlement to TDIU are not met, severance of entitlement to TDIU was not proper. 38 U.S.C.A. § 5112(b)(6), (10) (West 2002); 38 C.F.R. §§ 3.105(d), 3.114(b) (2012). 3. As the criteria for severance of entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 are not met, severance of entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 was not proper. 38 U.S.C.A. § 5112(b)(6), (10) (West 2002); 38 C.F.R. §§ 3.105(d), 3.114(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As the Board's decision that severance of service connection for degenerative joint disease of the lumbar spine with right lower extremity radiculopathy, and, entitlement to TDIU and Dependents' Educational Assistance under 38 U.S.C. Chapter 35 was not proper is completely favorable, no further action is required to comply with the VCAA and implementing regulations. Legal Criteria and Analysis Review of the record shows that a rating decision dated November 2007, granted service connection for degenerative joint disease of the lumbar spine. A February 2008 rating decision granted service connection for radiculopathy of the right lower extremity due to the lumbar spine disability, and, entitlement to TDIU and educational benefits under Chapter 35. In a March 2010 proposed rating decision, the RO, in part, advised the Veteran of their intent to sever service connection for degenerative joint disease of the lumbar spine with radiculopathy of the right lower extremity, and, entitlement to TDIU and educational benefits under Chapter 35. In the May 2010 rating decision on appeal, the RO implemented the proposed severance. The Veteran has appealed the decision. Once service connection has been granted, it can be severed only upon the Secretary's showing that the final 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); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Specifically, when severance of service connection is warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The veteran 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. 38 C.F.R. §§ 3.103(b)(2), 3.105(d); Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). 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. Baughman, supra. Clear and unmistakable error (CUE) is defined as "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 CUE was present under 38 C.F.R. § 3.105(a) in a 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 law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Although the same standards apply in a determination of CUE in a final decision and a determination as to 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. Daniels, 10 Vet. App. at 480. Upon review of the issuance of the proposed rating decision and notice of severance, VA has complied with relevant due process considerations with respect to the severance and the Veteran has not contended otherwise. 38 C.F.R. § 3.105(d). The Board notes that the grant of TDIU and Dependents' Educational Assistance under Chapter 35 were solely predicated on the grant of service connection for degenerative joint disease of the lumbar spine with radiculopathy of the right lower extremity. Therefore, the Board will discuss the propriety of the severance of service connection first as the decision of that issue dictates the outcome of the other issues on appeal. In a May 2010 rating decision the RO severed service connection for degenerative joint disease of the lumbar spine with right lower extremity radiculopathy. The RO indicated that the record now contained a new unfavorable medical expert opinion and this opinion established there had been CUE in the rating decision which granted service connection, and therefore, severance was warranted. Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board will apply a two-part analysis to the matter of the propriety of severance of service connection. First, the Board must determine whether the rating is entitled to protection under 38 C.F.R. § 3.957. Assuming that the rating is not protected or that the protection can be overcome, the Board then must look at the propriety of the severance itself. That involves inquiry into the matter of whether service connection was established based on CUE. In determining whether service connection was properly severed, the Board is principally guided by the provisions of 38 C.F.R. § 3.105(d), for severance of service connection. That regulation initially requires that the Board make a determination as to whether the provisions of §§ 3.114 and 3.957 have been met. As 38 C.F.R. § 3.114 deals with changes in the law, it is not applicable given the circumstances of this case. Under 38 C.F.R. § 3.957 ratings that have been in effect for 10 or more years cannot be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10 year period is computed from the effective date of service connection. In this case, service connection for degenerative joint disease of the lumbar spine with radiculopathy of the right lower extremity was granted, with an effective date of November 29, 2002. Service connection was severed by the RO in May 2010. Since service connection was in effect for a period of less than 10 years, the protection afforded under 38 C.F.R. § 3.957 do not apply. Once the limitations contained in §§ 3.114 and 3.957 have been addressed, 38 C.F.R. § 3.105(d) provides that service connection can be severed only where evidence establishes that the grant of service connection is clearly and unmistakably erroneous (the burden of proof being upon the Government). As previously stated, to determine whether CUE was present in a 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; and 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. As the RO noted in the March 2010 proposed severance, however, the focus is not merely on the evidence of record at the time of the initial decision, but rather on whether all the current evidence of record establishes that the grant of service connection was clearly erroneous. Daniels v. Gober, 10 Vet. App. 474, 480 (1997). In the present case, a November 2007 rating decision granted service connection for degenerative joint disease of the lumbar spine. A February 2008 rating decision granted service connection for radiculopathy of the right lower extremity secondary to the lumbar spine disability. In granting service connection for degenerative joint disease of the lumbar spine, the RO considered the service medical treatment records, post service private and VA treatment records, several VA medical opinions and a private medical opinion. To summarize the pertinent facts, service treatment records show the Veteran was treated for back problems and was ultimately released from active duty due to a back disability which was noted at the time to have preexisted service. The record shows the Veteran was involved in a motor vehicle accident prior to service where he injured his back. At the time of entrance into service in January 1975, however, his back was noted to be normal. An April 2004 VA examination report noted a diagnosis of degenerative disc disease and annular tear at L4-5. The examiner opined that the current back disability was not caused by or aggravated by service. Another VA medical examination and opinion were obtained in August 2005. An unfavorable opinion regarding a nexus to service was provided. In July 2007, the VA requested a new medical opinion primarily based on testimony and argument by the Veteran that he had not incurred a back injury in the motor vehicle accident prior to service, but rather it was a muscular injury. That after the motor vehicle accident but prior to service, he continued to function normally without any back problems. That he continued to have back problems since separation from service which had progressed with the years. And that, while he incurred an injury in March 1999 to the shoulder, he had continued to have back problems since service prior to that. A new medical opinion was obtained in July 1007. The examiner, after a review of the record and examination of the Veteran, provided a diagnosis of degenerative disc disease of the lumbar spine with sacralization of the L5 site. He opined that the current back symptoms were an accumulation of back problems that began prior to service and were aggravated by service. He noted the back symptoms prior to service had resolved at the time of enlistment. He stated that service aggravated the back symptoms beyond natural progression. He noted that the L5 sacralization may have caused facet joint difficulties at the L4-5 area and may have predisposed the Veteran for further injury. He concluded stating that the Veteran had a resolution of his prior back injury upon entrance to service, that military service then aggravated the preexisting condition beyond its natural progression and that post service employment again aggravated the lower back condition. The RO, based on the evidence noted above, found, in its November 2007 rating decision, that despite the accident prior to service, no chronic condition was noted on entrance to service, and the while a prior VA opinion had stated the back condition was not aggravated by service, there was now evidence stating that at least in part, the back condition was aggravated by service. Finding the evidence was in equipoise, the RO granted service connection. Subsequently, the Veteran requested an increase in the disability rating assigned and in a February 2008 rating decision, the RO granted service connection for radiculopathy of the right lower extremity as due to the lumbar spine disability. In November 2009, an investigation by the Inspector General (IG) was conducted upon allegations that the Veteran was not as disabled as he was claiming and was therefore committing fraud. The IG report focused on the severity of the Veteran's lumbar spine disability and concluded that if as a result of the report the Veteran received a lower disability rating, then a monetary loss would be calculated. Following the IG report, the RO obtained a new medical examination in February 2010. The examiner opined that the Veteran's back disability was less likely than not related to his military service and any preexisting condition was not aggravated beyond its natural progression by service. The examiner provided his reasoning for the opinion. The RO, relying in the newly obtained unfavorable opinion of February 2010, found there had been CUE in the November 2007 and February 2008 rating decisions and severed service connection. In reviewing the evidence, the Board finds that that there appears to be a valid difference of opinion between the July 2007 and the February 2010 VA examiner concerning the etiology of the Veteran's lumbar spine disability with radiculopathy of the right lower extremity. However, the Board notes that both opinions were supported by detailed reasoning and were based on a review of the record. While one opinion may be given greater probative than the other, the Board cannot find that the evidence undebatably shows that the medical opinion which formed the basis of the original service connection award is not a medically valid interpretation of the facts of this case. In other words, the existence in the record of a valid difference of medical opinion cannot clearly and unmistakably show that the original award of service connection for right knee disability was based upon error. The RO, in granting service connection, found the evidence was in equipoise. The Board finds that the evidence continues to be in equipoise with well-reasoned opinions, based on reviews of complete and accurate records, both in favor and against a nexus to service. At the time of the November 2007 rating decision, the RO resolved all doubt in the Veteran's favor. Now, it appears the RO wants to interpret the facts in a different way. As previously noted, a different interpretation of the facts cannot be the basis of CUE. The Board acknowledges that it is not entirely clear the theory upon which the RO initially granted service connection. It may be aggravation of a pre-existing condition, or a direct incurrence in service, given the discussed operation of the presumption of soundness in the initial grant. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The fact remains, however, that whether or not the Board can clearly discern the basis of the grant, the RO, at the time, considered all of the evidence of record, weighed all of that evidence, and resolved all doubt in the Veteran's favor. If the RO now believes their previous interpretation of the facts was erroneous in light of new evidence, this does not create a proper basis for a finding of CUE. Thus, the criteria for severing service connection for a degenerative joint disease of the lumbar spine with right lower extremity radiculopathy have not been met on the basis of CUE. As to whether there is any fraud on the Veteran's part regarding the grant of service connection, the Board finds that while there may be evidence of an exaggeration of symptoms on the Veteran's part, as noted in the November 2009 IG report, that evidence goes towards the disability rating assigned and not as to whether there is a present disability which was service incurred. The propriety of the disability rating assigned is not before the Board, and the Board intimates no findings with regard to the propriety of any future proposed reductions.. Therefore, any evidence of fraud as to the severity of the symptoms, is irrelevant to the present claim. Finally, the Board notes that, as previously stated, the grant and severance of TDIU and Dependents' Education Assistance under 38 U.S.C. Chapter 35 were solely based on the finding of and subsequent severance of service connection for degenerative joint disease of the lumbar spine with right lower leg radiculopathy. As service connection for degenerative joint disease of the lumbar spine with right lower leg radiculopathy is being restored to the same levels at which they previously supported a grant of additional benefits, it follows that entitlement to TDIU and Dependent's Education Assistance are similarly restored. The full benefit on appeal is granted. ORDER The severance of service connection for degenerative joint disease of the lumbar spine with right lower leg radiculopathy was not proper; service connection for degenerative joint disease of the lumbar spine with right lower leg radiculopathy is restored. The severance of entitlement to TDIU was not proper; entitlement to TDIU is restored. The severance of entitlement to Dependents' Education Assistance under 38 U.S.C. Chapter 35 was not proper; entitlement to Dependents' Education Assistance under 38 U.S.C. Chapter 35 is restored. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs