Citation Nr: 18156860 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 13-22 045 DATE: December 11, 2018 ORDER The severance of service connection for left knee degenerative joint disease being improper, restoration of service connection is granted. REMANDED An increased disability evaluation in excess of 10 percent for status post right knee surgery and right knee degenerative joint disease is remanded.   FINDING OF FACT There is conflicting, but not clear and unmistakable evidence, as to whether the Veteran’s left knee degenerative joint disease is secondary to his service-connected right knee disability. CONCLUSION OF LAW The criteria for restoration of service connection for left knee degenerative joint disease are met. 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 July 1982 to June 1987. The case is on appeal from a May 2011 and November 2011 rating decision. The Board remanded this matter in May 2015, February 2016, and June 2017. Whether the severance of service connection for left knee degenerative joint disease was proper. A. Background & Due Process The RO has severed service connection for left knee degenerative joint disease. The RO originally granted service connection in a December 2009 rating decision. The RO specifically granted service connection for “left ankle sprain/strain and left knee degenerative joint disease.” The RO concluded that “[s]ervice connection for left ankle sprain/strain and left knee degenerative joint disease has been established as directly related to military service.” The RO cited an October 2009 VA examiner’s opinion “that your current bilateral shoulder condition, right knee condition, and left ankle condition are at least as likely as not due to his military service.” The RO proposed to sever service connection in a December 2010 rating decision. The RO found that the December 2009 rating decision had “inadvertently assigned service connection for left knee degenerative joint disease.” The RO explained that the service treatment records were silent for complaints of treatment for the left knee; the Veteran’s claim of service connection was silent for left knee degenerative joint disease; and the October 2009 VA examination was silent for a diagnosis of left knee degenerative joint disease, and “more importantly the [V]eteran wasn’t examined on his left knee.” The RO then issued the November 2011 rating decision on appeal, which severed service connection effective March 1, 2012. The RO referred to its discussion in the December 2010 rating decision. In his December 2011 notice of disagreement (NOD), the Veteran disputed the severance. He argued that the severance was made without reviewing his VA medical records, which would reflect his left knee complaints. The initial question before the Board is whether the RO followed the applicable due process procedures for the severance. The RO followed the prescribed proper due process steps for severing service connection. First, the RO issued a proposed rating in December 2010. The Veteran was notified in December 2010 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 December 2010 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 submit additional evidence or request a predetermination hearing. Accordingly, the RO issued the November 2011 rating decision, which severed service connection prospectively effective March 1, 2012. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under a December 2011 cover letter. The Board observes that the final date of severance was greater than the last day of the month in which a 60-day period from the date of the December 2011 notice to the Veteran of the final rating action expired. Thus, all due process requirements were met in severance service connection. See 38 C.F.R. § 3.105(d). The remaining question is whether the severance was proper. B. 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 in a severance proceeding in finding clearly erroneous the diagnosis upon which the original award of service connection was based is not a requirement that he 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 v. Nicholson, 21 Vet. App. 54, 62 (2007) (internal quotations omitted). C. Discussion The question before the Board is whether the grant of service connection for the left knee disability was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because there is conflicting, but not clear and unmistakable, as to whether the left knee condition is secondary to the service-connected right knee disability. Originally, the RO’s grant of service connection was based on clear and unmistakable. The RO granted service connection based on a positive VA examiner’s opinion that did not address the left knee. Specifically, the Veteran underwent a VA examination in October 2009 VA. That VA examiner gave an opinion as to the bilateral shoulders, right knee, and left ankle. The RO mistakenly read the examiner’s opinion as including the left knee. Hence, the original grant of service connection for the left knee was clear and unmistakable error. Since that time, however, additional VA opinions have been obtained, and they are conflicting as to whether the left knee condition is related to the service-connected right knee disability. Tending to support a secondary nexus, a VA examiner in August 2015 opined that the Veteran’s left knee condition was at least as likely as not (50% or greater probability) proximately due to or the result of the Veteran’s service-connected right knee condition. The examiner reasoned that the Veteran “does have significant abnormal gait, which could cause his left knee pain.” This same examiner gave two subsequent opinions in October 2015 and April 2016, respectively. At those times, the VA examiner found that the left knee diagnosis is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected condition. The VA examiner’s rationale, however, was ambiguous and contradictory. First, in October 2015, the VA examiner reasoned that the Veteran “is significantly obese, which plays a significant role (>50%) in causing degenerative changes in his left knee. Abnormal gait also contributes to his left knee osteoarthritis (<50%).” The Board notes that, despite the negative opinion, the VA examiner gave essentially the same rationale: that the Veteran had an abnormal gait contributing to his left knee osteoarthritis. Yet, the examiner did not explain why he changed his opinion, and the Board is unable to discern why. Next, in April 2016, the same VA examiner reasoned that “[t]here was no significant gait abnormality noted on the exam of 8/29/15. Againg [sic] and obesity play a significant role in causing degenerative changes in his left knee.” The Board notes that the VA examiner here directly contradicted his earlier opinion. In August 2015, the VA examiner stated that the Veteran “does have a significant abnormal gait.” In April 2016, by comparison, the examiner stated there had been no significant gait abnormality at the time of the August 2015 VA examination. Again here, the VA examiner did not explain this contradiction. As such, the VA examiner’s initial opinion is some evidence supporting a secondary nexus and the later opinions are not clear and unmistakable evidence against a secondary nexus. In October 2016, the VA examiner who had first examined the Veteran in October 2009 gave an opinion on the left knee (which he had not done the first time). The VA examiner gave a negative opinion, reasoning that the Veteran “is morbidly obese. This is the main reason he has DJD in the left knee. Even his gait is affected by his body habitus.” The Board finds that this October 2016 opinion is also not clear and unmistakable evidence against a secondary nexus for two reasons. First, the VA examiner gave obesity as the “main reason” for the Veteran’s left knee diagnosis. To this extent, the question here is not whether obesity is the main reason for the left knee DJD, but whether the service-connected right knee disability contributed in any way to the left knee DJD. See, e.g., Cohen v. Brown, 10 Vet. App. 128, 141 (1997) (discussing the “eggshell plaintiff rule” in the context of VA claims). Second, and relatedly, the VA examiner’s rationale does not make it clear and unmistakable that the right knee disability did not contribute to the Veteran’s left knee disability. The VA examiner’s essential rationale was that (a) morbid obesity was the “main reason” for the Veteran’s left knee DJD and (b) even the Veteran’s gait was affect by morbid obesity. Neither of these cited factors necessarily not rules out the possibility that the left knee DJD was also not aggravated to some degree by the service-connected right knee disability. See El-Amin v. Shinseki, 26 Vet. App. 136, (2013) (“At best, it might be said that the examiner considered and opined that Mr. El–Amin’s alcohol abuse was aggravated by (that is, ‘was related to) “factors other than” [PTSD].”). For these reasons, the October 2016 VA examiner’s opinion falls short of establishing by clear and unmistakable evidence that the left knee diagnosis was not secondary to the right knee disability. Thus, at this point, there is both positive supporting a nexus and negative evidence against a secondary nexus. 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 the 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 in light of the secondary service connection theory even though it was originally proper based on the direct service connection theory. Thus, restoration of service connection for left knee degenerative joint disease is warranted.   REASONS FOR REMAND An increased disability evaluation in excess of 10 percent for status post right knee surgery and right knee degenerative joint disease. While the record contains contemporaneous VA examinations regarding the Veteran’s right knee 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). Most importantly, the Veteran’s main functional impairment, as indicated by the most recent VA examination in November 2017, concerns difficulties with repeated use over time. He complained of being unable to stand for long periods and having pain while sitting at work during his twelve-hours shifts. Earlier evidence, such as a June 2011 VA Physical Medicine consultation and a November 2014 VA Physical Therapy session, reflect similar complaints of exacerbations with prolonged use. The November 2017 examiner stated that an opinion could not be provided without resort to speculation as it concerned the Veteran’s functional limitations after repetition over time “because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” The examiner did not indicate that the speculation was, for isntance, due to lack of knowledge within the medical community. Thus, the VA examination is inadequate in this regard. The matter is REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his service-connected right knee disability. 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. 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). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel