Citation Nr: 1615357 Decision Date: 04/15/16 Archive Date: 04/26/16 DOCKET NO. 12-01 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether the severance of service connection for a left foot disability was proper. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served in the Army National Guard and had a period of active duty for training (ACDUTRA) from January 24, 1983, to April 23, 1983. This case comes to the Board of Veterans' Appeals (Board) from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. FINDINGS OF FACT 1. In a March 2003 rating decision, the RO granted service connection for a foot disability, which later rating decisions indicate was of the left foot. 2. At the time of the March 2003 rating decision awarding service connection for a left foot disability, there was competent evidence of a continuity of symptoms since ACDUTRA. CONCLUSION OF LAW Severance of service connection for a left foot disability was improper. 38 U.S.C.A. §§ 1131, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105(d), 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Active service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24) (West 2014); 38 C.F.R. § 3.6(a) (2015). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). An award of service connection will be severed only where evidence establishes that such was clearly and unmistakably erroneous (the burden of proof being upon the Government). 38 U.S.C.A. § 5112 (West 2014); 38 C.F.R. § 3.105(d) (2015). 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. 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. 38 C.F.R. § 3.105(d) (2015). The Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether clear and unmistakable error (CUE) is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). The Court has further stated that CUE is a very specific and a 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. at 313 (en banc). It has been held by the Court that the same CUE standard that applies to a Veteran's CUE challenge to a prior adverse determination under 3.105(a) is also applicable in the Government's severance determination under 3.105(d). 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. See Wilson v. West, 11 Vet. App 383 (1998). See also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (§ 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.). See also Graves v. Brown, 6 Vet. App. 166, 170 (1994) (holding that CUE is defined the same under 38 C.F.R. § 3.105(d) as it is under § 3.105(a)). However, the evidence that may be considered in determining whether severance is proper under section 3.105(d) is not limited to the evidence before the RO at the time of the initial service connection award. Daniels v. Gober, 10 Vet. App. 474, 480 (1997); cf. Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). The Court reasoned that because section 3.105(d) specifically contemplates that a change in diagnosis or change in law or interpretation of law may be accepted as a basis for severance, the regulation contemplates the consideration of evidence acquired after the original granting of service connection. It was reasoned that "[i]f the Court were to conclude that . . . a service connection award can be terminated pursuant to section 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, the 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." Venturella, 10 Vet. App. at 342-43. In this case, the RO severed service connection for a left foot disability in an August 2011 rating decision, effective November 1, 2011. In a March 2003 rating decision, the RO granted service connection for a foot disability and assigned a 0 percent (noncompensable) rating under Diagnostic Code 5284, 38 C.F.R. § 4.71a (2015), effective August 15, 2002. The RO noted that the service treatment records showed complaints of foot pain and numbness in the toes, and a February 2003 VA examination diagnosed hammer toes and hallux valgus. Beginning with a June 2004 rating decision, the RO characterized the disability as a left foot disability. Initially, based on the effective dates of service connection and severance, the Board observes that service connection was not in effect for 10 years or more to warrant the protection of 38 C.F.R. § 3.957 (2015). A September 2010 rating decision proposed to sever service connection for a left foot disability, and the Veteran was notified of this decision later that month. The RO provided the Veteran 60 days for the presentation of additional evidence to show that service connection should be maintained. Having received no additional evidence, in an August 2011 rating decision, the RO implemented the proposal and severed service connection for the disability. Thus, the Board observes that the procedural requirements of 38 C.F.R. § 3.105(d) have been met. At the time of the March 2003 rating decision, the pertinent evidence of record consisted of the Veteran's claim for benefits, service treatment records, and a February 2003 VA examination report. On his August 15, 2002, claim for benefits, the Veteran indicated that he was seeking service connection for a disability that began in March 1983. With respect to the Veteran's service treatment records, October 1982 National Guard enlistment reports of history and examination reflect no history of foot trouble and a normal evaluation of the feet. A February 1983 record reflects complaints of right foot pain and a finding of pain in the posterior arch of the feet. A March 1983 record reflects complaints of numbness at the base of the great toes and an impression of callus formation. February 1988 reports of history and examination reflect no history of foot trouble but a finding of mild, asymptomatic pes planus. August 1988 reports of history and examination reflect no history of foot trouble and a normal evaluation of the feet. The February 2003 VA examination report reflects a history of foot pain during marches while in basic training and complaints of occasional pain in the feet. Examination revealed bilateral mild hallux valgus with angulation of the first metatarsal phalangeal joint. X-rays showed hallux valgus and hammer toes. The examiner provided diagnoses of hallux valgus and hammer toes. Based on the above, in a March 2003 rating decision, the RO granted service connection for a foot disability. The RO did not specify the disability or the foot affected, and Diagnostic Code 5284 for other foot injuries does not clarify the disability. However, later rating decisions indicate a left foot disability and note symptoms of pain in the arch and heel along with numbness, and diagnoses of pes planus, Morton's neuroma, metatarsalgia, osteoarthritis of the first metatarsal phalangeal joint, and left deep peroneal nerve damage. In the September 2010 rating decision, the RO proposed to sever service connection for the left foot disability, noting that the grant of service connection for the left foot disability was CUE. The RO explained that there was no evidence of a chronic left foot disability during the Veteran's period of ACDUTRA from January 24, 1983, to April 23, 1983; no evidence of a continuity of symptoms from 1983 to 2002; and no medical evidence linking the left foot disability to his period of ACDUTRA. However, the Veteran's August 2002 claim and February 2003 VA examination indicate that a left foot disability began during his period of ACDUTRA, and at a January 2005 VA examination, the Veteran reported a history of left foot problems since his period of ACDUTRA in 1983. The Veteran is competent to give evidence about observable symptoms such as pain and numbness. Layno v. Brown, 6 Vet. App. 465 (1994). Lastly, the Veteran's post-service complaints of pain and numbness in the foot mirror those made during ACDUTRA. Liberally construing the above, the record indicates a continuity of symptomatology of left foot problems since the Veteran's period of ACDUTRA. Given the above, the Board finds that, at the time of the March 2003 rating decision awarding service connection for a left foot disability, there was competent evidence of a continuity of symptoms since ACDUTRA. As noted above, the RO severed service connection because the evidence failed to show a chronic left foot disability during the Veteran's period of ACDUTRA or a continuity of symptoms from 1983 to 2002. Given the short time of the Veteran's period of ACDUTRA, evidence of a chronic disability of the left foot may be difficult to establish. However, the Veteran complained of left foot pain and numbness during that time and the Veteran continues to complain of those same symptoms to date. While the Veteran did not complain of foot trouble during the February and August 1988 examinations, he acknowledged that his disability has been intermittent. Based on the above, the Board finds that there was no CUE in awarding service connection. In conclusion, a review of the evidence of record fails to show that there was CUE in the grant of service connection for a left foot disability in the March 2003 rating decision. The Board cannot find that the grant of service connection led to an undebatably incorrect adjudicative result. Accordingly, the Board must conclude that the severance of service connection for a left foot disability was improper. (CONTINUED ON NEXT PAGE) ORDER Severance of service connection for a left foot disability was improper and the claim of entitlement to restoration of benefits is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs