Citation Nr: 18149633 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-15 452 DATE: November 14, 2018 ORDER Entitlement to restoration of service connection for degenerative arthritis of the lumbar spine was proper is denied. Entitlement to service connection to sciatica of the lower left extremity as secondary to degenerative arthritis of the lumbar spine is denied. Entitlement to service connection to sciatica of the lower right extremity as secondary to degenerative arthritis of the lumbar spine is denied. REMANDED Entitlement to service connection for a heart condition, to include as secondary to service connected psoriasis is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service connected psoriasis is remanded. FINDINGS OF FACT 1. The grant of service connection for degenerative arthritis of the lumbar spine in an October 2012 rating decision was clearly and unmistakably erroneous. 2. Sciatica of the lower left extremity was not related to service. Since the Veteran has not established service connection for degenerative arthritis of the lumbar spine, there is no service-connected disorder to which his sciatica of the lower left extremity may be secondarily service-connected. 3. Sciatica of the lower right extremity was not related to service. Since the Veteran has not established service connection for degenerative arthritis of the lumbar spine, there is no service-connected disorder to which his sciatica of the lower right extremity may be secondarily service-connected. CONCLUSIONS OF LAW 1. Severance of service connection for degenerative arthritis of the lumbar spine was proper and restoration is denied. 38 U.S.C. §§ 1110, 1155, 5109A (West 2014); 38 C.F.R. §§ 3.105 (d), 3.310 (2017). 2. Sciatica of the lower left extremity was not incurred in or aggravated by service, is not proximately due to, the result of, or aggravated by service connected disease or injury. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 3. Sciatica of the lower right extremity was not incurred in or aggravated by service, is not proximately due to, the result of, or aggravated by service connected disease or injury. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was originally granted service connection for a lumbar spine condition by a rating decision dated in October 2012. In June 2013, the Veteran was informed of VA’s proposal to sever service connection for a lumbar spine disability. Thereafter, service connection for the Veteran lumbar spine condition was severed by a May 2014 rating decision, effective August 1, 2014. In the May 2014 rating decision, the Veteran was also denied service connection for heart disease secondary to psoriasis and bilateral lower extremity sciatic nerve problem secondary to a lumbar spine condition. The Veteran filed a timely Notice of Disagreement in June 2014. In March 2016 the RO issued a Statement of the Case (SOC) denying service connection of diabetes mellitus, type II, and heart disease. The RO issued an SOC in June 2016 for the Veteran’s bilateral lower extremity sciatic nerve and lumbar spine claims. The Veteran perfected timely appeals of these SOCs. Most recently, the RO again denied the Veteran’s claims for service connection for bilateral lower extremity sciatica and lumbar spine condition in a March 2018 Supplemental Statement of the Case (SSOC). During the Veteran’s April 2018 Board hearing, the Board and the Veteran addressed his claims for service connection for heart disease, diabetes mellitus, type II, bilateral lower extremity sciatica and lumbar spine condition. Thus, the Board has jurisdiction to address the claims for service connection for heart disease, diabetes mellitus, type II, bilateral lower extremity sciatica and lumbar spine condition. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted where a disability is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (CUE), and only where certain procedural safeguards have been met. 38 C.F.R. § 3.105 (d); Stallworth v. Nicholson, 20 Vet. App. 482 (2006). VA is not limited to the law and the record that existed at the time of the original decision, and a change in medical diagnosis can serve as a basis for severance. In essence, a 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. Stallworth, 20 Vet. App. at 488. 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. at 482. If severance of service connection is considered warranted, a rating proposing the severance must be prepared which sets forth all the material facts and reasons. The veteran should then be notified, and given 60 days to present additional evidence. If no additional evidence is received within that period, the final rating action may be taken, effective the last day of the month in which the 60-day period expired. 38 C.F.R. § 3.105 (d). 1. Whether the severance of service connection for arthritis of the lumbar spine was proper In this case, the Veteran filed a claim for service connection for degenerative disc disease and osteoarthritis of the lumbar spine in January 2012. In an October 2012 VA rating decision, service connection for lumbar, degenerative disc as secondary to service connected cervicalgia was granted. In a June 2013 VA rating decision, the RO proposed severance of the Veteran’s lumbar, degenerative disc as secondary to service connected cervicalgia. The RO explained that service connection for lumbar, degenerative disc as secondary to service connected cervicalgia, was based upon a July 2011 VA examination. Although the July 2011 VA examiner opined that the Veteran’s degenerative disc disease was less likely than not (less than 50 percent probability) proximately due to or caused by the Veteran’s service connected, the July 2013 rating decision explained that this was not clear to the RO at the time and therefore erroneously granted service connection. Moreover, an additional August 2012 medical opinion stated that the Veteran’s lumbar spine condition was less likely than not (less than 50 percent probability) related to an injury in service as there was none noted in service and he also denied an injury in service. Furthermore, in February 2013 the diagnosis of degenerative disc disease was found to be incorrect, and the Veteran was diagnosed with lumbar spinal stenosis. Since the award of service connection was less than 10 years and predicted upon the July 2011 VA examination, the RO proposed to sever service connection due to CUE in the June 2013 VA rating decision. The Veteran was notified of the RO proposal to sever service connection by a June 2013 Notification Letter. In response to the June 2013 VA rating decision, the Veteran underwent an additional VA lumbar spine examination in October 2013, submitted private treatment records and statements in support of his claim. The RO considered the evidence of record, but in a May 2014 VA rating decision severed service connection of degenerative arthritis of the lumbar spine (previously diagnosed as lumbar spinal stenosis), effective August 1, 2014. The RO explained that the additional evidence submitted did not change the decision as specified in the June 2013 VA rating decision. At the outset, the Board finds the procedural requirements were met in this case. See 38 C.F.R. § 3.105 (d). As noted above, the RO issued a rating decision in June 2013 proposing the severance of the service connection for lumbar, degenerative disc as secondary to service connected cervicalgia. The Veteran was advised of the proposed reduction in a June 2013 letter and informed that he had 60 days to submit additional evidence and 30 days to request a personal hearing. Thereafter, the RO issued a rating decision in May 2014 implementing the proposed severance and discontinuance, both effective on August 1, 2014. The Veteran was notified of this reduction by letter dated in May 2014. Next, with regard to whether there was CUE in the October 2012 VA rating decision, review of the treatment records associated with the claims file at the time of the October 2012 VA rating decision show the onset and diagnosis of degenerative disc disease of the lumbar spine in June 2009. The Veteran complained of tenderness in the lumbar region in February 1991. January 1997 private treatment records also show bulging discs of the lumbar spine. The Veteran also submitted secondary source material which notes that psoriasis has been linked arthritis. In August 2012 the Veteran underwent a VA lumbar spine examination which offered a diagnosis of lumbar degenerative disc disease. Following an in-person examination and a review of the Veteran’s medical records, the VA examiner found that it was less likely than not (less than 50 percent probability) that the Veteran’s lumbar spine condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s service treatment records (STR) were silent for low back pain. Current x-rays showed degenerative changes which generally are related to age or a remote injury. The Veteran denied any injury. It was difficult to make a connection to active duty for his lumbar spine condition. The medical findings did not support an active duty connection. Based on the foregoing, the evidence of record at the time of the October 2012 VA rating decision included highly persuasive evidence that the Veteran’s lumbar spine condition was not related to his active duty service. The Board acknowledges the Veteran’s testimony that his lumbar spine condition is secondary to his service connected psoriasis. Prior to the May 2014 rating decision severing service connection, the Veteran was afforded a December 2013 VA medical opinion, which stated that the Veteran’s lumbar spine condition was less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service connected psoriasis. The VA opinion reasoned that there was no medical evidence that costochondritis is potentially caused by this skin disease, also in regard to the lumbar spine while there are some arthritic changes, these arthritic changes are not compatible with the type of arthritis caused by psoriasis. The Veteran’s prior rheumatologist also did not state or imply that psoriasis might be the cause of this. Osteoarthritis is not related at all to psoriatic arthritis. The Board notes that the Veteran has specifically asserted that his lumbar spine condition is due to his service connected psoriasis. Nevertheless, the only evidence of a possible connection between the Veteran’s lumbar spine condition and his psoriasis is a secondary source material submitted by the Veteran. This article merely states that psoriasis may be associated with arthritis. However, the connection between the Veteran’s osteoarthritis and his psoriasis was addressed in the December 2013 VA medical opinion. Therefore, these assertions are not sufficient to trigger VA’s obligation to obtain and examination or opinion. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). The Board has carefully read and considered all the evidence of record and, for reasons discussed above, finds the October 2012 grant of service connection for degenerative arthritis of the lumbar spine (previously diagnosed as lumbar spinal stenosis) was clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (d). As a result, the severance of the Veteran’s service connection for degenerative arthritis of the lumbar spine (previously diagnosed as lumbar spinal stenosis), effective August 1, 2014, was proper. 2. Entitlement to service connection to sciatica of the lower left extremity as secondary to a lumbar spine condition 3. Entitlement to service connection to sciatica of the lower right extremity as secondary to a lumbar spine condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (a) (2016). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. In addition, service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board also notes that service connection cannot be established as secondary to a non-service-connected disability. See 38 C.F.R. § 3.310. The Veteran’s STRs are silent for any treatment or symptoms relating to sciatica of the lower extremities. Furthermore, the Veteran noted normal lower extremities during his November 1984 separation examination. The Veteran has only asserted that his bilateral lower extremity sciatica is secondary to his lumbar spine condition. This is supported by private medical records. An October 2009 private treatment record noted that radiculopathy of the lower left extremity was secondary to degenerative changes of the lumbar spine. In October 2013 the Veteran underwent a VA peripheral nerves examination and was diagnosed with peripheral neuropathy of the bilateral lower extremities. Upon a review of the record and an in-person examination, the examiner determined that it was less likely than not (less than 50 percent likely) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there is no relationship between the Veteran’s radiculopathy and anterior chamber syndrome therefore the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Furthermore, a January 2013 VA peripheral nerves examination diagnosed the Veteran with left ulnar nerve entrapment and left sciatica. The examination determined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition. The examiner reasoned that there is no scientific basis for considering his sciatica to be related or caused by his psoriasis. The Veteran asserts that he is entitled to service connection for bilateral sciatica of the lower extremities, as secondary to non-service connected lumbar spine condition. However, an underlying disease or injury must first be service connected for the Veteran to claim secondary service connection. 38 C.F.R. 3.310. Therefore, the possibility of secondary service connection is precluded. In reaching this conclusion, the Board finds that the preponderance of the evidence is against these claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a heart condition, to include as secondary to service connected psoriasis is remanded. The Board finds a new VA medical opinion is needed to properly assess the etiology of the Veteran’s ischemic heart disease. The Veteran was last afforded a VA examination for his heart condition in December 2013; however, the Board finds the medical opinion provided is inadequate to decide the claim for service connection on a secondary basis. No opinion was provided with regard to secondary service connection, specifically, whether the Veteran’s ischemic heart disease was aggravated by his service connected psoriasis. See 3.310; See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), (where the Court held that secondary service connection includes compensation for aggravation of a Veteran’s non-service-connected condition that is proximately due to or the result of a service-connected condition). As such, a remand is required for a new VA medical opinion, and examination if deemed necessary by the assigned medical professional. 2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service connected psoriasis is remanded. The Board finds a new VA medical opinion is needed to properly assess the etiology of the Veteran’s diabetes mellitus, type II. The Veteran was last afforded a VA examination for his diabetes mellitus in December 2013; however, the Board finds the medical opinion provided is inadequate to decide the claim for service connection on a secondary basis. No opinion was provided with regard to secondary service connection, specifically, whether the Veteran’s diabetes mellitus, type II, was aggravated by his service connected psoriasis. See 3.310; See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), (where the Court held that secondary service connection includes compensation for aggravation of a Veteran’s non-service-connected condition that is proximately due to or the result of a service-connected condition). As such, a remand is required for a new VA medical opinion, and examination if deemed necessary by the assigned medical professional. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for his service-connected disabilities. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. After any additional records are associated with the claims file, return the VA Ischemic Heart Disease medical examination report to the VA examiner who provided the medical opinion in December 2013. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.   The VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed ischemic heart disease is aggravated (i.e., worsened in severity beyond a natural progression) by the service-connected psoriasis? 3. After any additional records are associated with the claims file, return the VA Diabetes Mellitus medical examination report to the VA examiner who provided the medical opinion in December 2013. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed diabetes mellitus, type II, is aggravated (i.e., worsened in severity beyond a natural progression) by the service-connected psoriasis? 4. The AOJ should then review the record and readjudicate the claims remaining on appeal. Thereafter, the case should be returned to the Board, if in order, for further review and final adjudication. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel