Citation Nr: 18156658 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-16 471 DATE: December 10, 2018 ORDER The severance of service connection for recurrent instability, right knee, associated with stress fracture of the right tibia, being improper, the appeal is granted. REMANDED An initial evaluation in excess of 30 percent for mixed anxiety depressive disorder is remanded. An evaluation in excess of 20 percent for stress related phenomena, left femur, left tibia, and left midfoot, is remanded. An evaluation in excess of 20 percent for stress fracture of the right tibia is remanded. An evaluation in excess of 10 percent for internal derangement with meniscal tear and degenerative arthritis of the right knee, (exclusive of the period from February 26, 2016, to March 31, 2016, during which time a temporary total evaluation was assigned pursuant to 38 C.F.R. § 4.30), is remanded. FINDING OF FACT The RO did not follow the applicable due process requirements for severing service connection, nor is it not clear and unmistakable as a matter of law or fact that the Veteran’s 20 percent rating for stress fracture of the right tibia necessarily contemplated his right knee instability. CONCLUSION OF LAW The severance of service connection for recurrent instability, right knee associated with stress fracture of the right tibia, was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1991 to May 1992. The case is on appeal from February 2014, September 2014, and September 2015 rating decisions. In July 2014, the Veteran testified at a Board hearing. Misfiled documents were discovered by the Board in this Veteran’s claims file. The documents consisted of medical records pertaining to a different Veteran. These misfiled documents appear to have been mistakenly included in this Veteran’s file, but do not appear to have had any impact in the instant appeal. Accordingly, action was taken by the Board to associate them with the correct Veteran’s claims file. 1. Whether severance of service connection for recurrent instability, right knee associated with stress fracture of the right tibia with instability, was proper Background The Veteran was previously service-connected for recurrent instability, right knee associated with a separately service-connected disability, stress fracture of the right tibia with instability. An August 2012 rating decision granted service connection for the recurrent instability, right knee as secondary to the service-connected disability of stress fracture of the right tibia. The RO assigned a 20 percent disability rating under diagnostic code (DC) 5003-5257 effective from June 2012. In the list of supporting evidence, the RO cited a VA examination from August 2012. The RO then issued a rating decision in February 2014 proposing to sever service connection for the disability. The RO found that a clear and unmistakable error was made in the August 2012 rating decision by assigning a separate evaluation for instability of the right knee. The RO explained that the evaluation of his service-connected stress fracture of the right tibia [under DC 5262] took into consideration his instability. By a July 2014 rating decision, the RO instituted the proposed decision by severing service connection for recurrent instability, right knee, due to a clear and unmistakable error, effective August 1, 2014. The RO then issued a rating decision in October 2014 reinstating the 20 percent rating for instability of the right knee effective from June 13, 2012, the original effective date for this award. The RO explained that the Veteran had submitted a timely request for a rating board hearing regarding the proposed severance on June 16, 2014, which should have preserved the 20 percent evaluation for right knee instability until after the hearing. On this basis, the RO reinstated service connection and the 20 percent rating for recurrent instability of the right. The RO stated that this rating “will remain [in effect] pending receipt of hearing transcripts.” A hearing was then held in November 2014. Next, the RO issued the instant rating decision in September 2015 severing service connection effective from December 1, 2015. Due Process The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The Board finds that the RO did not follow the proper due process steps for severing service connection. The RO issued the proposed rating in February 2014. The Veteran was notified in February 2014 at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The February 2014 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran did not file a notice of disagreement (NOD), but requested a predetermination hearing in June 2014. As this hearing request was not received within 30 days of the February 2014 notice, it was not timely. Accordingly, the RO then issued the July 2014 rating decision, which severed service connection prospectively effective August 1, 2014. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under a July 2014 cover letter. The August 1, 2014 severance date was not greater than the last day of the month in which a 60-day period from the date of the July 2014 notice expired. Thus, all due process requirements were not met in severing service connection. See 38 C.F.R. § 3.105(d). In any event, the RO then restored service connection in the October 2014 rating decision. The RO honored the Veteran’s hearing request, however untimely, in restoring service connection. Yet, the RO then proceeded to issue the final rating decision in September 2015, finally severing service connection effective December 1, 2015. This effective date was greater than the last day of the month in which a 60-day period from the date of the September 2015 notice expired. However, the severance of service connection was still improper on due process grounds because the RO did not follow the proper procedure for severing service connection. Once the RO restored service connection in October 2014, it could not then proceed with the severance without again issuing a proposed rating decision and giving the proper notice outlined in 3.105. The RO could not rely on the prior proposed notice to finally effectuate the severance. As such, the severance is void ab initio on this basis. Even were this not the case, the severance of service connection was improper on a factual and legal basis because (1) a separate grant of service connection--with corresponding separate ratings--is not precluded by law for impairment of the tibia and fibula and instability (under DCs 5262 and 5257), and (2) the evidence here is not clear and unmistakable in showing that the 20 percent rating under DC 5262 for stress fracture of the right tibia compensated for the instability. A. Applicable Law Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). 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. Unless otherwise provided in paragraph (i) of this section, 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). 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. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 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 id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). B. Discussion To reiterate, the question before the Board in this case is whether the grant of service connection for right knee instability was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because there is a legal and factual basis for awarding the separate rating. The Veteran’s 20 percent rating under DC 5262 for stress fracture of the right tibia was initially assigned in a March 2002 rating decision. The RO found the evidence consistent with “malunion of the tibia and fibula with moderate knee or ankle disability.” The RO cited a February 2002 VA examination. Under § 4.71a, DC 5262, a 20 percent rating is assigned for tibia and fibula, impairment of, with malunion involving “moderate knee or ankle disability.” The Board observes that this language is very broad and non-exclusive. It could certainly include instability of the knee if such were attributed to malunion of the tibia and fibula. See, e.g., Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018). However, this ambiguity means that it is not clear and unmistakable that instability is necessarily contemplated by DC 5262. As such, it is not clear and unmistakable that the 20 percent disability rating under DC 5262 contemplates his instability as a matter of law. See, e.g., Brown v. Gardner, 513 U.S. 115, 118 (1994). Moreover, it is not clear and unmistakable that the Veteran’s instability, based on the facts presented, is necessarily a direct manifestation of his stress fracture of the right tibia instead of being a secondary condition. Generally, pyramiding, which is the evaluation of the same manifestation under different diagnoses, is to be avoided. 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions. Cullen v. Shinseki, 24 Vet. App. 74, 80-81, 84 (2010). The critical element for separate evaluations is that none of the symptoms for any one of the residuals was duplicative of or overlapping with the symptoms of the other conditions, but the pyramiding inquiry does not end with whether two disabilities share a common manifestation. It must also be determined whether that common manifestation would be improperly compensated more than once. Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017). The pyramiding inquiry does not end with whether two disabilities share a common manifestation, but continues to inquire whether that common manifestation would be improperly compensated more than once. Id. Here, looking to the original February 2002 VA examination report (supporting the initial grant of 20 percent under DC 5262), the Board observes that it reflects complaints of lost motion and pain, but not instability. To this extent, it is assumed the examiner would have documented complaints of instability if such were made by the Veteran. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). Correspondingly, the VA examiner did not give results of instability testing. Thus, at the time the 20 percent rating was assigned under DC 5262, it did not contemplate instability because the Veteran was not having such symptoms. The RO granted service connection for instability based on the August 2012 VA examination. That examination shows positive instability testing. The examination does not make it clear and unmistakable that the instability is a direct manifestation of the service-connected stress fracture of the right tibia instead of being a separate and distinct condition. Evidence since that time is likewise less than clear and unmistakable. During private treatment in November 2015, the Veteran complained of his knee being unstable and having fallen down steps. A November 2015 VA Orthopedic Surgery note found evidence to support chronic laxity of the ACL with increased pain on anterior drawer sign and Lachman’s testing. At private treatment in February 2016, the Veteran complained of his knee just giving out. A December 2017 VA Nursing note documents his assertion of using a brace for security because his knee had episodes of giving out and causing him to fall. Collectively, this evidence indicates ongoing instability of the right knee. This condition is not clearly and unmistakably established by this evidence as an inclusive symptom of the stress fracture of the right tibia. In short, this evidence presents a reasonable disagreement as to such, and reasonable minds could disagree as to the ultimate determination. However, this determination, at this point, amounts to no more than a disagreement as to how to weigh the facts. In context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. Accordingly, the severance of service connection was improper, service connection is restored, and the appeal is granted. REASONS FOR REMAND 1. An initial evaluation in excess of 30 percent for mixed anxiety depressive disorder is remanded. This issue is remanded to obtain missing VA medical records and a new VA examination. Regarding the outstanding VA medical records, the Veteran submitted copies of VA medical records from September 2017. The earliest entry in that submission indicates that the Veteran was last seen approximately three months prior, which would be June 2017. However, there are no further VA medical records in the claims file for the year 2017. The next latest records end in May 2016. Thus, the records from May 2016 through September 2017 have not been associated with the claims file. In a July 2018 statement, the Veteran’s wife identified a mental health event in November 2016. It is not clear if he sought treatment during this event, but her statement indicates a potential worsening of his symptomatology. Accordingly, the VA medical records from that time period appear relevant. Similarly, it is not clear that all medical records for the earlier time periods have been obtained. For example, the Veteran’s wife wrote in her July 2018 statement that the Veteran had a mental health even in December 2015 for which he sought treatment at VA. The claims file includes VA medical records from December 2015, but this treatment is not reflected in his medical records. This indicates that the available records are incomplete. Accordingly, remand is needed to obtain those records. The Board also finds that a new VA examination is needed. The Veteran testified at his Board hearing that he had been having higher-level symptoms, especially fear of harm to self or others. Such symptomatology is not reflected in the private (non-VA) or VA medical records, nor the VA examinations. He indicated at his Board hearing that he expressed to these providers that it was not a good idea for them to put that in his records due to the nature of his job. Board Hr’g Tr. 23-24. The Veteran’s concern is understandable. However, it indicates that the currently available evidence does not entirely or accurately reflect the full extent of his symptomatology. As such, a new VA examination is needed. 2. An evaluation in excess of 20 percent for stress related phenomena, left femur left tibia, and left midfoot is remanded. 3. An evaluation in excess of 20 percent for stress fracture of the right tibia with instability is remanded. 4. An evaluation in excess of 10 percent for internal derangement with meniscal tear and degenerative arthritis of the right knee is remanded. Issues 2-4 are addressed together as they are related. Specifically, while the record contains contemporaneous VA examinations regarding the Veteran’s disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Likewise, as it pertains to the right knee, the Veteran submitted private medical records showing that he underwent total right knee replacement in October 2018. This indicates a material change in the disability picture thereby warranting a new VA examination. See 38 C.F.R. §§ 3.326, 3.327 (2015); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records, including those from December 2015, from May 2016 through September 2017, and since May 2018. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 3. Schedule the Veteran for an examination of the current severity of his left leg, right leg, and right knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel