Citation Nr: 1725136 Decision Date: 06/30/17 Archive Date: 07/10/17 DOCKET NO. 10-36 208A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether the severance of service connection for posttraumatic stress disorder (PTSD) was proper. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for radiculopathy of the bilateral lower extremities. REPRESENTATION Veteran represented by: Joe Moore, attorney ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from September 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2008, the RO in St. Petersburg, Florida, denied claims for service connection for degenerative disc disease, lumbar spine, and radicular symptoms of both legs. The Veteran appealed. In December 2015, the Board denied the claims. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In July 2016, while his case was pending at the Court, the VA's Office of General Counsel and the Veteran's representative filed a Joint Motion requesting that the Court vacate the Board's December 2015 decision. That same month, the Court issued an Order vacating the December 2015 Board decision, and remanding the case for compliance with a Joint Motion for Remand (JMR). In addition, in May 2013, the RO in Baltimore, Maryland, granted service connection for PTSD. In March 2015, the Baltimore RO severed service connection for PTSD. The Veteran has appealed. The issues of entitlement to service connection for a back disability, and radiculopathy of the bilateral lower extremities, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 2013 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD). 2. Reasonable minds could differ as to whether the Veteran's reported stressor was corroborated at the time of the May 2013 rating decision, and therefore it cannot be concluded that a clear and unmistakable error (CUE) was made in granting service connection in this case. CONCLUSION OF LAW The criteria to sever service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5109 (West 2014); 38 C.F.R. §§ 3.105 (d) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that the RO's May 2013 severance of service connection for PTSD was based on clear and unmistakable error. The following has been argued: "reasonable minds could, in fact, differ as to whether [the Veteran's] stressor was verified at the time of the grant." See Veteran's representative's statement, received in June 2014. The Veteran has consistently described his stressor of witnessing a soldier drown while in Germany, and "this account is wholly consistent with the known facts of record." Service records show "a causality that is consistent with the time and place of his described traumatic experience." The Veteran is shown to have been stationed in Baumholder, Germany, where it has been verified that a soldier from his unit died in 1965. Id. The record contains evidence which fully corroborates the inservice stressor event, which was relied upon by the VA examiner who reviewed the records (i.e., the death of a soldier identified as "Sergeant F[redacted]"), found the Veteran to be a credible historian, and who formally diagnosed him with PTSD. See Veteran's representative's statement, received in March 2016. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2016). The regulation governing PTSD was amended, effective July 13, 2010. 75 Fed. Reg. 39843 -52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to his/her fear of hostile military or terrorist activity, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Id. However, this is not applicable here as the Veteran's reported stressor did not involve foreign military or terrorist activity. Where it is not shown that a veteran engaged in combat, or that he or she was exposed to hostile military or terrorist activity, mere assertions of service stressors are generally insufficient to establish the occurrence of such events. Rather, the alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304 (f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); VBA's Adjudication Procedure Manual (VBA Manual M21-1) III.iv.4.H.3.(a) and (f); IV.ii.1.D.3.a. Once service connection has been granted, it can be severed only where the evidence establishes that the grant was clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. 38 C.F.R. § 3.105 (d); Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006). 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. Id. at 488. Service connection will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (d). 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. Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, [38 C.F.R.] § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as [38 C.F.R.] § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned."). The same standards apply in a determination of clear and unmistakable error in a prior decision and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection; however, for the latter case, the reviewable evidence is not limited to that which was before the RO at the time of the challenged rating decision. See Daniels v. Gober, 10 Vet. App. 474 (1997). In fact, VA regulations provide that 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. 38 C.F.R. § 3.105 (d). 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. Stallworth, 20 Vet. App. at 488. In August 2008, the Veteran filed a claim for service connection for PTSD. The Veteran reported witnessing two stressors during service with the 3rd Armored Cavalry Regiment, in Baumholder, Germany: 1) between April and May of 1964, he was involved in a racially-motivated fight with other soldiers in which he was not harmed, but struck another soldier on the head with a bottle, cutting that soldier, but with no other report of serious injury (i.e., he said that he spotted the man drinking beer shortly thereafter), and 2) in the late summer or early fall of 1964 or 1965, while serving with the 3rd Armored Cavalry Regiment, he saw a soldier drown in an armored vehicle after it fell into the water. The Veteran's discharge (DD Form 214) shows that he had almost two years of service in Germany. His military occupation specialty was tracked vehicle repairman. He received the National Defense Service Medal. The Veteran's personnel file shows that while he was in Germany, between April 1964 and March 1966, he served with an ordinance battalion during part of April 1964, and with the 3rd Armored Cavalry Regiment (ACR) (between April 1964 and March 1966), with a principal duty of track vehicle mechanic. The Veteran's service treatment records do not show treatment, complaints, or a diagnosis involving psychiatric symptoms. There is no evidence of treatment involving being in a fight. The Veteran's separation examination report, dated in August 1966, shows that his psychiatric condition was clinically evaluated as normal. The associated "report of medical history" shows that he denied having a history of "frequent trouble sleeping," "nervous trouble of any sort," or "depression or excessive worry." A statement from the U.S. Armed Services Center for Unit Records Research (CURR) (now the U.S. Army & Joint Services Records Research Center), received in November 2008, states the following: the available United States Army Military Casualty reports had been researched. The 3rd Armored Cavalry was stationed in Baumholder, Germany in 1965. There was only one individual who died from wounds/injuries in 1965 in Germany. The report did not document any individuals that died in 1964 or 1966 in Germany. The report notes that CURR was unable to document the Veteran's claimed stressor involving the death of a soldier, and indicates that the Veteran must provide further information in order for another attempt at documentation to be made. In November 2008, the Baltimore RO denied the claim, stating that a currently diagnosed condition was not shown. In February 2009, the Veteran submitted private medical evidence showing that he had been diagnosed with PTSD, and additional statements as to his claimed stressors, and requested reconsideration of his claim. He subsequently submitted additional VA treatment reports which show that he was diagnosed with PTSD and depression/major depressive disorder. In August 2009, the RO in St. Louis, Missouri confirmed and continued it previous denial of the claim. The RO indicated that neither of the Veteran's claimed stressors were shown to have been verified. In September 2009, the Veteran filed to reopen the claim. In November 2009, the Baltimore RO stated that it had reopened the claim, and denied it on the merits because there was no verified stressor. In January 2010, the Veteran filed a timely notice of disagreement. In March 2010, the Veteran withdrew his appeal, and requested reconsideration of his claim for PTSD. See Veteran's representative's letter, received in March 2010; 38 C.F.R. §§ 20.204, 20.1000 (2016). A VA PTSD examination report, dated in February 2013, shows that the examiner accepted the Veteran's claimed stressor involving witnessing the drowning of a soldier as verified, and that he afforded the Veteran an Axis I diagnosis of PTSD based on that stressor. In an addendum, dated in March 2013, the VA examiner stated that although the Veteran had witnessed the drowning of a soldier, his reaction did not involve "the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." The examiner stated the following: in his later years, the Veteran was remembering the event and was dealing with mortality issues of his own. There were periods of significantly good functioning in the intervening years. There is no clinical justification to change the diagnosis given in the C&P examination. In May 2013, the RO granted service connection for PTSD, and assigned a 70 percent evaluation, effective February 12, 2009. The RO's decision states, "Service connection for posttraumatic stress disorder is granted with an evaluation of 70 percent effective February 12, 2009 the day we received medical evidence of your disability." The RO's decision further states, "PTSD is not presumed in this case because [the] Veteran's claimed stressor is not related to fear and helplessness due to hostile military or terrorist activity. However service connection is granted under 38 CFR § 4.125 and (VA Adjudication Procedure Manual) IV.ii.1.D following established link of stressor with active duty." In August 2013, notwithstanding the May 2013 grant of service connection for PTSD, the RO contacted the Veteran, who reported that the soldier that he witnessed drown during service was a radio technician stationed with the 3rd Armored Cavalry Regiment, in Hoppstadten, Germany, with the last name of F[redacted] (hereinafter "Sergeant F"). In August 2013, the RO initiated additional attempts to verify the Veteran's claimed stressor involving witnessing the drowning of Sergeant F. However, these attempts, to include verification requests with the U.S. Army Crime Records Center, DPRIS (Defense Personnel Records Information Retrieval System), and the National Personnel Records Center, were unsuccessful. In March 2014, the RO issued a memorandum in which it determined that there was insufficient detail to warrant an attempt at stressor verification with the JSRRC (the U.S. Army and Joint Services Records Research Center). See VBA Manual M21-1, IV.ii.1.D.4.(a) and (b). In April 2014, the RO notified the Veteran that it proposed to sever service connection for PTSD. The RO indicated that its May 2013 grant of service connection for PTSD had been based on clear and unmistakable error, "based on confirmation of an in-service stressor and an established link between your condition and that stressor." The RO stated that at the time of the rating decision "we had not been able to verify your stated stressors, and improperly service connected your PTSD." The RO further noted that attempts to verify his stressors with several agencies had been unsuccessful, and that the Veteran had been notified of this conclusion in its March 2014 memorandum. The RO informed the Veteran that he had a period of sixty days in which to submit evidence and request a hearing. In March 2015, the RO severed service connection for PTSD, effective May 31, 2015. The RO concluded that service connection had been granted in May 2013 based on clear and unmistakable error. The RO noted that although CURR had determined that there was one casualty in Germany in 1965, they had been unable to verify either the name or the location of the casualty, and that his claimed stressor remained unverified. Turning to the law at had, it is noted by the Board that "corroboration" is not defined in the regulations. It is clear that when a stressor is non-combat in nature, some corroboration is necessary, although once again it is not stated how much. Reviewing case law, the Court of Appeals for Veterans Claims (Court) has generally found ways to liberalize what is required to constitute corroboration. For example, in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court found that it did not need to be shown that a Veteran was actually present during a mortar attack, but rather, it was sufficient to show that his unit fell under a mortar attack while he was stationed with it. Merriam-Webster defines corroborate as "make more certain". Here, the evidence presented shows that a service member in the Veteran's unit died in Germany in the year that the Veteran was stationed. While there is no indication that he drowned as the Veteran has asserted, the fact remains that this detail of the death does make the reported stressor more certain to have occurred. Certainly it cannot be said that reasonable minds could not differ. As such, the Board concludes that service connection for PTSD was improperly severed and service connection is restored. ORDER The March 2015 severance of service connection for PTSD was improper. Service connection is restored. REMAND The Veteran asserts that he is entitled to service connection for a back disability, and radiculopathy of the bilateral lower extremities. It is argued, in essence, that the Veteran sustained a back injury in 1964, and that he had ongoing back symptoms since that time. With regard to the claim for radiculopathy of the bilateral lower extremities, these disabilities are claimed as secondary to a back disability. In December 2015, the Board denied the claim. The Board cited, in part, a VA opinion from a physician, Dr. K.S., dated in March 2015, in which Dr. K.S. essentially concluded that the Veteran's back condition was less likely than not (less than 50 percent probability) incurred in or caused by his service. The Board noted that Dr. K.S. explained the following: [T]he Veteran was discharged from service in 1966. He had acute back strain while he was in service, in around 1966. He was treated, and his symptoms resolved while in service without any residual. His discharge examination was negative for any disability. In 1972, he had an automobile accident. In 1983 (presumably a typographical error and a reference to the Veteran's on-the-job accident in 1987), he had an on-the-job accident. The Veteran had surgery on his back many years after his discharge from service. The Veteran now has degenerative disc disease of the lumbar spine. Dr S concluded that it is clear that the Veteran has many reasons to have degenerative disc disease of the lumbar spine, including two accidental injuries to his back, and even just ageing. Back strain is known to resolve without any residual. His present condition is clearly unrelated to his inservice injury. A review of the Joint Motion shows that the parties agreed that "the Board failed to adequately explain its reliance upon the March 2015 VA medical opinion and to adequately address Appellant's challenges thereto." Specifically, the Joint Motion notes that in his March 2015 opinion, Dr. K.S. misstated: 1) the date of the Veteran's in-service injury (i.e., stating that it occurred "around 1966") when it is shown to have occurred in May 1964, and 2) the date of his post-service work injury (i.e., stating it occurred in 1983, when it is shown to have occurred in December 1987). The Joint Motion indicates that the second date is relevant to the Veteran's argument that he was shown to have back pathology prior to his December 1987 injury. Specifically, a November 1986 CT (computerized tomography) scan showed that he had a herniated disc at L5-S1, with moderate osteoarthritic changes. The Joint Motion further states that, to the extent that Dr. K.S. indicated that the Veteran's relevant medical history included a motor vehicle accident (MVA) in 1972, he had not explained such a link between that accident and his current condition. The Joint Motion notes that such a link was disputed by Dr. P.C. in opinions, dated in January 2012 and September 2015. In those opinions, Dr. P.C. stated that "no evidence of any kind of low back injury exists" in association with the Veteran's 1972 MVA. The Joint Motion shows that it was therefore agreed that the Board failed to adequately explain its reliance upon the opinion of Dr. K.S. "without further discussion of the examiner's citation to the 1972 motor vehicle accident." Finally, it was agreed that the Board had failed to sufficiently address Dr. P.C.'s challenge to the portion of the March 2015 VA opinion which attributed the Veteran's current back condition to aging. See Dr. P.C.'s September 2015 opinion. The Board notes that in its December 2015 decision, it determined that the Veteran was not a credible historian, and that the Joint Motion did not take issue with the Board's finding. Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014) (holding that when an attorney agrees to a joint motion for remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed). Give the foregoing, on remand, a supplemental opinion should be obtained from Dr. S, the author of the March 2015 VA opinion. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to to the VA examiner who offered the March 2015 opinion, or if not available, to another examiner. If an opinion cannot be provided without an examination, one should be provided. The following questions should be answered: a) Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that any currently demonstrated low back disorder had its clinical onset during the Veteran's period of active duty (from September 1963 to September 1966) or was caused by any incident of service? Why or why not? b) Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that arthritis of the low back was manifested to a compensable degree within one year of separation from service? Why or why not? c) The opinions from Dr. R.A., dated in March 2008, Dr. A.D., dated in April 2008, and Dr. P.C., dated in January 2012 and September 2015, should be discussed; and the July 2016 Joint Motion for Remand (JMR) should be reviewed for the reasons the VA examination was found to be inadequate. A complete rationale for all opinions expressed should be set forth, in a printed (typewritten) report, to include an explanation for any and all cause(s) of the Veteran's low back condition found, other than his service, to include aging (if appropriate). 2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs