Citation Nr: 1333975 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-28 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether the severance of service connection for rheumatoid arthritis involving the hands, wrists, and elbows, on the basis of clear and unmistakable error (CUE) in a February 2009 rating decision, was proper. 2. Whether the severance of service connection for limitation of motion of the right ankle associated with rheumatoid arthritis, on the basis of CUE in a February 2009 rating decision, was proper. REPRESENTATION Appellant represented by: Armed Forces Service Corporation ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. FINDINGS OF FACT 1. The evidence does not show that the grant of service connection for rheumatoid arthritis involving the hands, wrists, and elbows, was clearly and unmistakably erroneous. 2. The evidence does not show that the grant of service connection for limitation of motion of the right ankle associated with rheumatoid arthritis was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The criteria to sever service connection for the Veteran's rheumatoid arthritis involving the hands, wrists, and elbows, have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5109 (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.304(d) (2013). 2. The criteria to sever service connection for the Veteran's limitation of motion of the right ankle associated with rheumatoid arthritis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5109 (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.304(d) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board restores service connection for the Veteran's claims, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duties to notify and assist is required. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In September 2008, the Veteran filed a claim for service connection for rheumatoid arthritis involving the arms, elbows, wrists, and hands. He also alleged that he suffered from limitation of motion in his joints as a result of his rheumatoid arthritis. In a February 2009 rating decision, the RO granted the Veteran's claims of entitlement to service connection for rheumatoid arthritis involving the hands, wrists, and elbows, and limitation of motion of the right ankle associated with rheumatoid arthritis. The medical evidence of record at the time of the February 2009 RO determination included private treatment records from Dr. Scarpa, dated from February 1999 to March 2008. These records showed reports of rheumatoid arthritis since 1999, as well as the Veteran's reports of pain and stiffness in his joints. Additionally, the report of a April 1996 VA examination showed a diagnosis of gouty arthritis in the knees and ankles. A May 2005 VA examination reflected a diagnosis of rheumatoid arthritis in the knees and ankles. The November 2008 VA examination also noted the Veteran's reports of swelling in his elbows and hands. A physical examination revealed that the Veteran's joints did not have swelling, warmth, tenderness, crepitance, or inflammation. The joints also all had normal range of motion, except for the right ankle which showed a slightly decreased range of motion. Ultimately, the VA examiner stated that the Veteran has an unusual case of episodic arthritis. The examiner stated that since the joints involved are symmetric and with the morning stiffness of his hands, this suggests a mild case of rheumatoid arthritis, which is episodically worse. The examiner noted that much of the time the Veteran is in remission with no evidence of rheumatoid arthritis. Additionally, the November 2008 VA examination did not find definite rheumatoid arthritis, but the examiner noted the Veteran's history is quite consistent with mild episodic rheumatoid arthritis mainly involving his knees and ankles, and now involving the hands, wrists, and elbows. X-rays were not conducted of the hands, wrist, and elbows. VA treatment records dated through March 2009 list rheumatoid arthritis as an active problem. These records also show the Veteran was treated by a rheumatologist. In a June 2009 rating action, the RO proposed to sever service connection for these disabilities on the basis that the grants of service connection for the conditions were clearly and unmistakably erroneous. Concerning the rheumatoid arthritis of the hands, wrist, and elbows, the RO reasoned that the grant of service connection was clearly and unmistakably erroneous because the medical evidence reviewed was negative for a finding of rheumatoid arthritis, including the service treatment records. Concerning the right ankle disability, the RO reasoned that the grant of service connection was clearly and unmistakably erroneous because it established a second disability rating for limitation of motion of the right ankle when rheumatoid arthritis of the knees and ankles had already been established. In a July 2009 letter, the RO notified the Veteran of the proposed actions, informed him of his right to submit evidence and appear for a personal hearing, and allowed him a period of 60 days required under 38 C.F.R. § 3.105(d). In the December 2009 determination on appeal, the RO formally severed service connection for these disabilities for the reasons cited above. Since the December 2009 rating action, no additional VA or private treatment records have been associated with the claims folder. 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 the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). 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. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In Stallworth, the United States Court of Appeals for Veterans Claims (Court) recognized that 38 C.F.R. 3.105(d) contemplates 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. Id. at 488; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). In fact, the Court noted that the regulation specifically allows a change in medical diagnosis to serve as a basis for severance. Indeed, in Stallworth, the Court, quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997), reiterated, "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 changes in the law or later developments in the factual record." Id. at 488. The Stallworth Court added, "Consequently, the severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current evidence established that service connection is clearly erroneous." Id. (Emphasis in original). The Court has stated that 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. See Fugo v. Brown, 6 Vet. App. 40, 43 (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, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth; Allen. First, as to the RO's severance of service connection for rheumatoid arthritis of the hands, wrist, and elbows because the medical evidence reviewed was negative for a finding of rheumatoid arthritis, including the service treatment records, the Board finds that the medical evidence of record, pre-dating the RO's grant of service connection, is not sufficient to warrant severance of service connection for this disability. Not only did the private treatment records from Dr. Scarpa show a history of rheumatoid arthritis, the November 2008 VA examiner specifically found that the Veteran had an unusual case of episodic arthritis. As noted above, the examiner stated that since the joints involved were symmetric and with the morning stiffness of his hands, it was suggestive of a mild case of rheumatoid arthritis, which was episodically worse. The examiner noted that much of the time the Veteran is in remission with no evidence of rheumatoid arthritis. While the examiner did not find definite rheumatoid arthritis, it was conceded that the Veteran's history is "quite consistent with mild episodic rheumatoid arthritis mainly involving his knees and ankles, and now involving the hands, wrists, and elbows." Therefore, there is evidence that the Veteran currently suffers from rheumatoid arthritis in his elbows, wrist, and hands. Next, concerning the right ankle disability, the RO severed service connection because it established a second disability rating based on limitation of motion when service connection for rheumatoid arthritis of the knees and ankles had already been established. The Board notes the Veteran's rheumatoid arthritis of the knees and ankles is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5002. Pursuant to the provisions of Diagnostic Code 5002, rheumatoid arthritis is between 20 to 100 percent disabling when there is evidence of an active process with constitutional manifestations associated with active joint involvement. Such constitutional symptoms include total incapacitation; weight loss; anemia productive of severe impairment of health; severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods; symptom combinations productive of definite impairment of health objective; evidence of incapacitating exacerbations occurring three or more times a year; or, for one or two exacerbations a year in a well-established diagnosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5002 (2013). Under this Diagnostic Code, the regulations dictate that when there is no active disease process, chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, the disability is rated under the appropriate diagnostic codes for the specific joints involved. This includes situations where the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002. The ratings for active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher evaluation should be assigned. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. Therefore, the regulations dictate that rheumatoid arthritis is to be rated either pursuant to constitutional manifestations or based on limitation of motion. Here, the November 2008 VA examiner determined the Veteran suffered from limitation of motion of the right ankle. It is unclear from the evidence whether the Veteran suffered from limitation of motion as to the remaining major joint or groups of minor joints due to his rheumatoid arthritis. As Diagnostic Code 5002 and the accompanying guidance directs, the Veteran's rheumatoid arthritis should be rated in accordance with the constitutional manifestations as delineated in Diagnostic Code 5002, or limitation of motion should be rated under the appropriate diagnostic codes for the specific joints involved. Consequently, is was improper for the RO to sever service connection of the right ankle based on limitation of motion without also considering if all of the affected major joints or groups of minor joints should also be rated under limitation of motion, or as a whole based on the constitutional manifestations pursuant to Diagnostic Code 5002. In sum, the Board finds that medical evidence of record does not compel a conclusion, to which reasonable minds could not differ, as required for a find that the grants of service connection for these disabilities were clearly and unmistakably erroneous. Thus, after a careful review of the record, the Board finds that VA has not met the high evidentiary burden of showing clear and unmistakable error, and thus severance of service connection for these disabilities was improper. ORDER Severance of service connection not being proper, service connection for rheumatoid arthritis involving the hands, wrists, and elbows, is restored. Severance of service connection not being proper, service connection for limitation of motion of the right ankle associated with rheumatoid arthritis, is restored. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs