Citation Nr: 18149264 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-06 924A DATE: November 9, 2018 ORDER Entitlement to service connection for left upper extremity tremor with muscle rigidity and stiffness is restored. FINDING OF FACT The evidence does not show that the grant of service connection for left upper extremity tremor with muscle rigidity and stiffness was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria to sever service connection for the Veteran’s left upper extremity tremor with muscle rigidity and stiffness has not been met and severance of that disability was not proper; service connection for left upper extremity tremor with muscle rigidity and stiffness is therefore restored, effective September 1, 2013. 38 U.S.C §§ 1110, 1116, 5107, 5109A; 5112(b)(6), (10); 38 C.F.R. §§ 3.105(d), 3.114(b), 3.303, 3.307, 3.309, 3.957. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks restoration of service connection for left upper extremity tremor, muscle rigidity and stiffness. Historically, the Veteran was awarded service connection for several disabilities related to Parkinson’s disease in a February 2013 rating decision. However, in a March 2013 rating decision, the Agency of Original Jurisdiction proposed to sever all of those disabilities; after notifying the Veteran of that proposal in a March 2013 notification letter that comported with the due process requirements of 38 C.F.R. § 3.105(e), the AOJ finalized severance of all of those disabilities, including the left upper extremity tremor, in a June 2013 rating decision. Following severance in June 2013 rating decision, the AOJ re-awarded service connection in a December 2013 rating decision for all of those severed disabilities, effective September 1, 2013, with the exception of the left upper extremity tremor and stooped posture. However, during the pendency of the appeal, service connection was re-awarded for stooped posture, effective January 8, 2014, in an April 2014 rating decision. Thus, the sole disability in this case that was the subject of a severance action in the June 2013 rating decision but has not been re-service connected at this time is the left lower extremity tremor disability. Initially, the Board reflects that service connection for left upper extremity tremor was in effect from February 29, 2012 through September 1, 2013. As service connection for left upper extremity tremor with muscle rigidity and stiffness was not in effect for 10 years, service connection for that disability was not protected. See 38 C.F.R. § 3.957. 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, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994). 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 (CUE) 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, 20 Vet. App. 482. The same standards apply in a determination of CUE in a prior decision and a determination as to whether a decision granting service connection was the product of CUE 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, 10 Vet. App. at 480; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). 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 short, the basis of the AOJ’s severance action in this case was that, based on the available medical evidence, the Veteran did not have a diagnosis of Parkinson’s disease. The Board reflects that the AOJ has already determined that conclusion was clearly and unmistakably erroneous and has re-awarded service connection for Parkinson’s disease and all of the other attendant complications of that disability, as noted above, with the exception of the left upper extremity tremor. In the December 2013 statement of the case and all of the subsequent supplemental statements of the case, the AOJ has upheld the severance of the left upper extremity tremor on the basis that the evidence does not demonstrate a tremor of the left upper extremity. However, based on the evidence of record, the Board finds that the award of service connection was not clearly and unmistakably erroneous. As noted earlier, to sever service connection the current evidence must establish that service connection is clearly erroneous. Here, the Board finds that the evidence of record does not meet this standard. The Board notes that there is positive VA and private medical evidence of record. A January 2013 VA examination noted mild tremor and mild muscle rigidity and stiffness in the Veteran’s upper left extremity. A January 2015 private treatment record noted abnormal involuntary movements. Finger taps and hand open-close were moderately impaired bilaterally. Although no resting tremor or rigidity was observed and dyskinesias was not found, frequent quick jerking movements of the Veteran’s body were noted. In a December 2015 private treatment note, the Veteran reported large jerking movements. The Veteran noted that the jerking movements were suppressible with distraction. The Veteran could hold back the movements while driving, however, when he released the movements were more forceful and prominent. In an April 2015 private treatment record, the Veteran reported frequent muscle spasms in his upper body since October 2014. Upon evaluation, the physician noted that the Veteran was positive for muscle spasms and for tremors. The Veteran was also found to exhibit myoclonic jerks. Although the Veteran denied resting tremor, the Veteran’s wife noted that the Veteran experienced mild tremors in the past. In a January 2016 private treatment note, the Veteran’s physician noted intermittent violent large amplitude jerking movements of the upper extremities that involved the trunk at times. Additionally, in the informal conference report dated May 2016, the Decision Review Officer (DRO) noted that the Veteran had a visible tremor of both upper extremities during the conference and while in the waiting area. The Board notes that although the DRO is not competent to give a medical diagnosis, he is competent to make lay observations about clearly observable symptomatology. The Board notes that there is also negative VA and private medical evidence in the record. Most notably, private physician correspondence dated January 2014 noting that the Veteran has never had tremor; a January 2015 private treatment note finding the Veteran’s abnormal movements not consistent with dyskinesias and no resting tremor; a January 2016 private treatment note indicating the absence of rest, postural, or action tremors, absence of diskinesias, and absence of myoclonus; and, an August 2016 VA examination in which the examiner did not witness any upper extremity tremor or detect muscle rigidity or stiffness. After reviewing all of the evidence of record, as noted above, there is sufficient positive medical and lay evidence in the record to support a finding that the Veteran suffers from left upper extremity tremor, with muscle rigidity and stiffness; thus, it is not undebatable that the Veteran has a left upper extremity tremor in this case. The Board cannot therefore find that the grant of service connection for the left upper extremity tremor with muscle rigidity and stiffness was clearly and unmistakably erroneous. Accordingly, as the grant of service connection for left upper extremity tremor with muscle rigidity and stiffness was not clearly and unmistakably erroneous, severance of service connection was not proper in this case. Therefore, service connection for left upper extremity tremor, muscle rigidity and stiffness is restored, effective September 1, 2013. See 38 C.F.R. § 3.105(d). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel