Citation Nr: 18145389 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 14-38 277A DATE: October 30, 2018 ORDER Entitlement to service connection for arthritis of the right knee is granted, subject to the laws and regulations governing monetary awards. As there was no clear and unmistakable error in the July 10, 2009 Rating Decision regarding service connection for right shoulder degenerative joint disease with impingement (minor), restoration of service connection for this condition is granted, effective June 1, 2008, subject to the laws and regulations governing monetary awards. REMANDED Entitlement to service connection for a right hip disability, to include as secondary to service-connected left hip degenerative joint disease, is remanded. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran’s arthritis of the right knee is etiologically related to his active duty service. 2. The July 10, 2009 Rating Decision awarding a 10 percent evaluation for right shoulder degenerative joint disease is final. 3. In a November 2011 rating decision, the Regional Office severed service connection for right shoulder degenerative joint disease with impingement (minor) without following the due process procedures in 38 C.F.R. § 3.105(d). 4. The evidence of record does not show that the Regional Office granted service-connection for right shoulder degenerative joint disease with impingement (minor) in the July 10, 2009 rating decision. Accordingly, with respect to the Veteran’s right shoulder degenerative joint disease with impingement (minor), the evidence of record does not show that the July 10, 2009 Rating Decision contained clear and unmistakable error. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the right knee have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. As the July 10, 2009 Rating Decision did not grant service connection for right shoulder degenerative joint disease with impingement (minor), it did not contain clear and unmistakable error. Severance of service connection for right shoulder degenerative joint disease with impingement (minor) was not proper, and service connection is restored. 38 U.S.C. §§ 1110, 1131, 5107, 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 through May 2008. He had four months and 20 days of prior active duty service. On his substantive appeal, the Veteran indicated he wished to present testimony before a Veterans Law Judge. The Veteran was scheduled for a hearing in January 2018. However, in a January 2018 statement, prior to the scheduled hearing, the Veteran’s representative withdrew the request for a hearing. The Board notes that the Veteran’s representative subsequently submitted a statement in August 2018 suggesting she believed the January 2018 hearing had been held. The Regional Office (RO) responded to the representative’s statement in October 2018 informing her that the hearing request had been withdrawn. The Board finds that the January 2018 statement constitutes a clear withdrawal of the hearing request, as it stated “the [Veteran] wishes to withdraw his request for a BVA hearing and a decision be made on the evidence of record . . . . Therefore, there is no need for the hearing.” As such, the Board may proceed with appellate review. 38 C.F.R. § 20.204. In an August 2018 decision, the RO proposed reducing the disability ratings for several of the Veteran’s service-connected conditions. In September 2018, the Veteran’s representative requested a hearing on that proposal. That request remains pending at the RO, and the hearing will be scheduled in the ordinary course of business. Therefore, any issues concerning the proposed reductions are not before the Board. The Veteran had also perfected an appeal in 2014 as to the claim for an increased rating for major depressive disorder. However, in an August 2015 letter, his representative withdrew this claim. Therefore, this issue is also not before the Board. 1. Entitlement to service connection for arthritis of the right knee The Veteran seeks service connection for arthritis of his right knee. After a complete review of the record in conjunction with the applicable laws and regulations, the Board finds that it is at least in equipoise that the Veteran’s right knee arthritis is etiologically related to his active duty service. The Veteran’s service treatment records reflect that he frequently reported bilateral knee pain. In February 2001, he reported pain in his knees for approximately three days, and was diagnosed with arthralgia. In May 2002, he again reported pain in his knees. In August 2002, he continued to report knee pain. Physical examination reflected his knees were non-tender to palpation, but the Veteran reported deep knee pain. On a June 2002 report of medical history, the Veteran reported he was treated for chronic knee pain. The Veteran reported knee trouble on his February 2008 report of medical history for retirement. In the section reserved to explain any “yes” answers, he wrote that he had pain in his knees. As the Veteran reported knee pain in-service, the Board will address whether the Veteran has a currently diagnosed right knee disability. Post-service private treatment records dated August 2009 noted the Veteran was seen to discuss the results of his x-rays and he was “noted to have arthritis changes in both . . . knees.” The Veteran was afforded a VA examination to determine the etiology of his right knee disability in August 2011. Physical examination revealed the Veteran had decreased range of motion with his right knee and evidence of pain after repetitive use testing. The examiner found no significant disorder of the right knee during the examination; however, no x-ray images of the right knee were taken. The Board does not find the August 2011 VA opinion to be probative, as the examiner did not discuss the Veteran’s reduced range of motion or pain in determining whether he had a currently diagnosed right knee disability, and no x-ray images were ordered. The claims file contains no subsequent x-rays to suggest that the August 2009 diagnosis of arthritic changes to his right knee was erroneous. The Board finds that the Veteran was diagnosed with osteoarthritis in his right knee in August 2009, when he was noted to have arthritis changes of both knees. Accordingly, he has a current disease of the right knee. The Board thus turns to the dispositive issue of nexus. VA treatment records reflect that the Veteran’s right knee demonstrated reduced range of motion in December 2008, but he did not complain of pain at the time. Private treatment records dated August 2009 noted the Veteran had a long history of right knee pain. A private treatment record from later in August 2009 noted the Veteran had been diagnosed with arthritic changes in his right knee. The Veteran’s treating physician provided a nexus statement in December 2009 stating that the Veteran had been diagnosed with bilateral knee osteoarthritis, and that condition was not usually prevalent at his age. The physician opined that while the osteoarthritis could not be attributed to a specific injury or accident, the bilateral knee osteoarthritis was most likely caused by or the result of rigorous physical requirements of military duty. The Board finds the December 2009 private nexus opinion to be of probative evidentiary value because the conclusion is supported by medical rationale and is consistent with the verifiable facts regarding the Veteran’s contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The Veteran had been a longstanding patient of the physician, was found to have right knee osteoarthritis one year and three months after his separation from active duty service, and the physician noted that osteoarthritis was uncommon for the Veteran’s age and opined his arthritis was most likely related to his active military service. There are no other opinions of record indicating that the Veteran’s right knee arthritis is not etiologically related to his active duty service. Given the proximity of the Veteran’s diagnosed right knee arthritis to service, the in-service treatment, the medical evidence in both VA and private treatment records that he had ongoing limitation of motion and pain in the right knee, and the December 2009 private nexus statement, the Board finds the evidence is at least in equipoise that his right knee arthritis is etiologically related to service. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   The Board notes that the Veteran has submitted evidence that his right knee arthritis is secondary to his left knee disability. However, as the Board is herein granting service connection for the right knee arthritis on a direct basis, there is no need to address the issue of secondary service connection. 2. Whether the Regional Office properly found clear and unmistakable error in the Rating Decision, dated July 10, 2009, regarding service connection for right shoulder degenerative joint disease with impingement and strain (minor), thereby severing service connection 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. 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 therefore, 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. 38 U.S.C. §§ 5109A, 5112(b)(6) (2012); 38 C.F.R. § 3.105(d) (2017). When VA seeks to sever service connection, the provisions of 38 C.F.R. § 3.105(d) impose the same burden of proof that is placed on a claimant who, pursuant to 38 C.F.R. § 3.105(a), seeks to have an unfavorable decision overturned, except that in making the determination of whether severance of service connection is proper, the review of the record is not limited to evidence that was before the Regional Office at the time the original adjudication was made. See 38 C.F.R. § 3.105(d); Baughmann v. Derwinski, 1 Vet. App. 563, 566 (1991); Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997).   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. In this case, the Veteran submitted an application claiming entitlement to service connection for right shoulder impingement and arthritis in May 2008. In a rating decision, dated August 5, 2008, the Veteran was granted service connection for right shoulder degenerative joint disease with impingement and strain with a rating of 10 percent disabling. He was also granted service connection for a left shoulder strain with a noncompensable disability rating in the same rating decision. Therefore, in 2008, he was service-connected for both shoulders. The Veteran submitted a claim for an increased rating for his left shoulder disability in March 2009. In a July 10, 2009 rating decision, the Regional Office granted an increased rating of 10 percent for his right shoulder degenerative joint disease with impingement (minor). The Veteran submitted a statement in August 2009 asserting that the 10 percent disability rating he was awarded in the July 10, 2009 rating decision should have been applied to his left shoulder rating. In a November 2011 rating decision, the Regional Office found that a clear and unmistakable error had been made in the July 10, 2009, rating decision “that granted service connection for right shoulder degenerative joint disease with impingement and strain (minor),” and instead granted service connection for left shoulder degenerative joint disease with impingement (minor) effective June 1, 2008, thereby severing service connection for right shoulder degenerative joint disease with impingement (minor).   However, of import here is the fact that the July 10, 2009 rating decision did not grant service connection for right shoulder degenerative joint disease with impingement (minor). As noted above, the Veteran was granted service connection for right shoulder degenerative joint disease with impingement (minor) in an August 5, 2008 rating decision. The only issue addressed in the 2009 decision was the disability rating. The Regional Office did not follow the required procedural safeguards for a case of severance of service connection. No rating proposing severance was prepared, the Veteran was not notified of the contemplated action or furnished detailed reasons therefore, and he was not given 60 days for the presentation of additional evidence to show that service connection for his right shoulder degenerative joint disease with impingement (minor) should be maintained. In fact, the Regional Office merely severed service connection for the Veteran’s right shoulder degenerative joint disease with impingement (minor) with no explanation whatsoever. Thus, the Regional Office did not follow any of the due process procedures contained in 38 C.F.R. 3.105(d). As such, the severance of service connection for the Veteran’s right shoulder degenerative joint disease (minor), was not proper. Moreover, there was no clear and unmistakable error in the July 10, 2009 rating decision with regard to service connection for right shoulder degenerative joint disease with impingement (minor), as service connection for right shoulder degenerative joint disease with impingement (minor) was not granted in the July 10, 2009 rating decision – it was granted in the August 5, 2008 rating decision. The RO did not consider whether the August 2008 decision was clearly and unmistakably erroneous. The RO did not address whether the rating for the right shoulder as reflected in the 2009 decision was clearly and unmistakably erroneous, but instead completely severed service connection. Accordingly, as there was no clear and unmistakable error in the July 10, 2009 rating decision with regard to service connection for right shoulder degenerative joint disease with impingement (minor), and the Regional Office did not follow the due process procedures in 38 C.F.R. § 3.105(d), severance of service connection for right shoulder degenerative joint disease with impingement (minor) was improper. Thus, service connection for right shoulder degenerative joint disease with impingement (minor) is restored, effective June 1, 2008. In implementing this decision, the Regional Office is not to disturb the 10 percent rating in place under Diagnostic Code 5203 for the Veteran’s left shoulder. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected left hip degenerative joint disease, is remanded. The Veteran claims entitlement to service connection for a right hip disability, to include as secondary to his service-connected left hip disability. Private treatment records dated August 2009 reflect the Veteran had mild osteoarthritis change of his right hip noted on x-ray. However, x-ray imaging conducted during the August 2011 VA examination showed no significant degenerative changes in the right hip, and a February 2017 x-ray report noted his right hip to be normal. Accordingly, it is unclear from the record whether the Veteran has degenerative joint disease of his right hip. In June 2018, the Veteran submitted a private nexus statement. The examiner noted the Veteran had limited range of motion in his right hip with pain. The examiner opined that it was at least as likely as not that his right hip complaints were secondary to his severely arthritic left hip because his gait was unbalanced, and one leg was much stiffer than the other one, and this would invariably cause symptoms in the contralateral (right) hip. However, the Board does not find this opinion to be entirely adequate. Treatment records dated February 2017 noted the Veteran had a normal right hip on examination, with the exception of pain/tenderness in the vicinity of the superficial trochanteric bursa, and he was diagnosed with suspect trochanteric bursitis. The private nexus opinion submitted in June 2018 does not discuss this diagnosis or how the Veteran’s left hip disability caused or aggravated the Veteran’s diagnosed right hip disability of trochanteric bursitis. As there is conflicting evidence as to whether the Veteran has a current diagnosis of degenerative joint disease of the right hip, and there is no adequate opinion linking the Veteran’s right hip disability to his service-connected left hip degenerative joint disease, the Board finds the Veteran should be afforded a new VA examination to determine the etiology of his right hip disability. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2011 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any treatment received at Maxwell Air Force Base for his hip conditions. Make two requests for the authorized records from Maxwell Air Force Base, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right hip disability. The examiner is requested to provide an opinion as to whether it at least as likely as not the Veteran has currently diagnosed right hip degenerative joint disease that (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must specifically discuss the August 2009 x-ray report noting osteoarthritic changes, and the x-ray imaging from August 2011 and February 2017 noting no degenerative changes. ONLY if the examiner determines that the Veteran’s right hip disability is not directly related to his active duty service, an opinion should be provided as to whether it is at least as likely as not the Veteran’s right hip disability is (1) proximately due to his service-connected left hip degenerative joint disease, or (2) aggravated beyond its natural progression by his service-connected left hip degenerative joint disease. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel