Citation Nr: 20021034 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-56 068A DATE: March 24, 2020 ORDER The severance of service connection for traumatic brain injury (TBI), previously rated as headaches due to head trauma, being improper, restoration of service connection is granted. As the disability rating of duodenitis with history of duodenal ulcer was not properly reduced from 20 percent to 0 percent effective May 1, 2015, restoration of the 20 percent rating as of that date is granted. FINDINGS OF FACT 1. There is conflicting, but not clear and unmistakable evidence that the Veteran has a TBI, previously rated as headaches due to head trauma, due to a motor vehicle accident (MVA) during service. 2. The evidence of record does not clearly demonstrate that the Veteran’s duodenitis with history of duodenal ulcer underwent a sustained improvement. CONCLUSIONS OF LAW 1. The severance of service connection for TBI, previously rated as headaches due to head trauma, was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. The reduction of the disability rating for duodenitis with history of duodenal ulcer from 20 percent to 0 percent effective May 1, 2015, was not proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.7, 4.115, diagnostic code (DC) 7305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to February 1986. The case is on appeal from February 2015 and June 2015 rating decisions. In August 2019, the Veteran testified at a Board hearing. 1. Whether the severance of service connection for TBI, previously rated as headaches due to head trauma, was proper The Veteran was previously service-connected for TBI. Service connection has since been severed. The Veteran contends that this severance was improper. An October 2018 rating decision granted service connection for headaches due to head trauma. The RO cited service treatment records (STRs) showing complaints of pain on the left side of his head and scar, which the RO found to “attest[ ] to the fact that you suffered a blow to the head area.” The RO also relied on statements from the Veteran and his wife showing ongoing headaches, plus private (non-VA) treatment for headaches. The RO contrasted this with a July 2011 VA examination, which indicated headaches due to neck degenerative disease. The RO found that “this is an opinion and there is enough circumstantial evidence on the other side to be able to say that it is possible that your subjective headache complaints are related to the head injury during active duty.” A February 2015 rating decision proposed to sever service connection for TBI (previously rated as headaches due to head trauma). The RO found that there had been CUE in the grant of service connection “as the evidence fails to show any objective evidence of headaches due to your head trauma sustained in service.” The RO noted that the STRs confirmed MVAs in January 1985 and August 1985, but there was no mention of headaches following either of these MVAs. Also, his November 1985 service separation examination showed no evidence of complaints of headaches and a normal neurological examination and spine examination. The RO noted VA medical records showing a history of headaches in May 2002, but no treatment for headaches until July 2006. At that time, headaches were due to sinus congestion, and then again in April 2009, stating they were due to a motor vehicle accident in service. Then RO then cited reports that the Veteran had two post-service MVAs, in November 2012 and September 2013, respectively. The RO also relied on an October 2014 VA examiner’s opinion that there was no evidence of any residuals due to a TBI caused by the MVA in service. The examiner noted two MVAs in service in 1985, with no evidence of any loss of consciousness or any evidence of a closed head injury, traumatic brain injury, or any subsequent chronic headaches. The RO found that the objective medical evidence showed that the headaches were due to the nonservice-connected cervical spondylosis and degenerative disc disease and were not a residual of a head injury sustained in service. The June 2015 rating decision on appeal finalized the severance of service connection. The rating decision referred to the February 2015 proposed rating decision, but offered no further discussion as to the evidentiary or legal basis for the severance. At his August 2019 Board hearing, the Veteran testified that he did lose consciousness in the MVA and had severe headaches beginning days or a month after the MVA. Board Hr’g Tr. 2-4, 7. Those headaches had never gone away. Board Hr’g Tr. 4. His wife testified that she met the Veteran the year he separated from service, and he complained of headaches even then. Board Hr’g Tr. 11. She also testified that he had had headaches ever since then. Board Hr’g Tr. 12. 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 The initial question before the Board is whether the RO followed the applicable due process procedures for this action. The Board finds that the RO followed the prescribed due process steps for severing service connection. First, the RO issued the proposed rating in February 2015. The Veteran was notified 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 2015 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 filed a notice of disagreement (NOD) in March 2015, but did not submit additional evidence or request a predetermination hearing. Accordingly, the RO issued the June 2015 rating decision, which severed service connection prospectively effective September 1, 2015. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under a June 2015 cover letter. The Board observes that the September 1, 2015 final date of severance was greater than the last day of the month in which a 60-day period from the date of the June 2015 notice to the Veteran of the final rating action expired. In light of the RO’s action, all due process requirements were met in severing service connection. See 38 C.F.R. § 3.105(d). The next question before the Board in this case is whether the grant of service connection was clearly and unmistakably erroneous. The Board concludes that it was not because there is conflicting, but not clear and unmistakable, evidence that the Veteran had a TBI related to service. Tending to support the claim, the STRs show an in-service MVA in January 1985. A January 1985 entry indicates superficial abrasions and contusions to the face and oral mucosa. A January 1985 entry refers to abrasions and cuts the arms and cheek. He was referred for a mental health evaluation by a supervisor due to “acting funny or unusual.” The assessment was rule out cerebral concussion. The impression was “None (Psychologically).” He was then injured in a second MVA in August 1985. He was expressly noted to have a head injury in that accident. He was treated for traumatic iritis in the left eye after the accident. At his November 1985 separation examination, the Veteran endorsed a history of eye trouble, and the examiner noted the left eye treatment. The examiner also noted loss of consciousness secondary to the MVA. Also supportive, the Veteran testified at his Board hearing that he hit his head, lost consciousness, and had headaches starting in close proximity to the accident. Collectively, this evidence tends to establish an in-service injuries with headaches starting proximate in time to the injuries. The STRs are not entirely favorable. For example, the November 1985 separation examination shows that the Veteran denied a history of headache injury and headaches. The evidence also indicates that the MVAs were associated with alcohol use. Yet, this is not clear and unmistakable evidence that the Veteran did not injure his head in the MVA or have headaches developing during service. Nor does it clearly and unmistakably show that the MVAs were the result of willful misconduct. With regard to the nexus element, there is again conflicting evidence. Tending to support a nexus, as indicated, the Veteran himself also testified that he has had ongoing headaches beginning from the in-service MVA. Multiple VA medical records, such as in April 2006, February 2009, November 2010, and October 2011, recorded the Veteran’s report of headaches since the in-service MVA. Tending to weigh against a nexus, an October 1993 VA examiner diagnosed atypical vascular headache syndrome, which was more likely related to his past history of alcohol and drug abuse, as the examiner could see nothing to indicate it was related to a neck injury. A July 2011 VA examiner opined that the Veteran had mild TBI with symptoms of anxiety and impulsivity, plus cervicogenic headache secondary to multilevel cervical spondylosis with manifestation of tension-type headache and associated neck pain. The examiner opined that the Veteran had tension-type headaches and neck pain, so the severe head pain that the Veteran complained of was not secondary to his mild traumatic brain injury, but was secondary to the multilevel cervical spondylosis. Also, a VA examiner in October 2014 found that the Veteran did not have a TBI. The examiner found that the Veteran’s STRs indicated two motor vehicle accidents in 1985 during which he did not have a loss of consciousness or any documentation of a closed head injury, traumatic brain injury or any subsequent chronic headaches. In the interim, according to the examiner, the Veteran has had a cervical spine injury and recently had three cervical spine injuries since 2012. Also, the examiner found, the Veteran self-reported that his headaches were due to the cervical spine injury, which was supported by his private orthopedic surgeon. It was apparent to the examiner that a clear and unmistakable error was made in granting service connection for headaches secondary to head trauma. The Board finds that these VA examiners’ opinions are not clear and unmistakable evidence against a nexus. The October 1993 VA examiner found nothing to indicate a relationship to an in-service neck injury, but this absence of evidence is not clear and unmistakable evidence of absence. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Likewise with the July 2011 VA examiner’s opinion. The October 2014 VA examiner found no documentation of a loss of consciousness, a closed headaches injury, or TBI. Yet, the STRs affirmatively documented a head injury at the time of the second in-service MVA. Thus, the factual foundation for the VA examiner’s opinion is incomplete, which reduces the probative value of the opinion. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Overall, there is both positive evidence supporting a nexus and negative evidence weighing against a 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 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. 2. Whether the reduction of the disability rating for service-connected duodenitis with history of duodenal ulcer from 20 percent to 0 percent effective May 1, 2015, was proper The RO in this case has reduced the rating for the Veteran’s duodenitis with history of duodenal ulcer (hereinafter “duodenitis”) from 20 percent disabling to 0 percent effective May 1, 2015. He contends that this reduction was improper. Historically, an August 2002 rating decision granted the 20 percent rating for the disability effective June 3, 2002. The RO cited VA medical records and a VA examination from July 2002 showing duodenitis with severe constant pain and abdominal distention after eating. A February 2004 rating decision continued the 20 percent rating. The RO cited a January 2004 VA examination showing severe esophageal and epigastric pain at level 8.5 on a scale of 0 to 10, which was constant whenever the Veteran was awake. He also had complaints of constant pain, indigestion, and reflux associated with shortness of breath, plus nausea 3-4 times a week. The VA examiner, according to the rating decision, diagnosed duodenal ulcer with recurrent duodenitis requiring daily medicine for prophylactic treatment. A February 2013 rating decision proposed to reduce the 20 percent evaluation to 0 percent. The RO cited an April 2011 VA examination with an April 2012 addendum indicating that the Veteran’s duodenal ulcer was resolved/healed without residuals and no longer existed. According to the RO, this examiner found that the Veteran had H. pylori gastritis, which occurred later and was not related to the duodenal ulcer, and esophagitis/GERD, which the examiner also found not related to the duodenal ulcer. (In the same rating decision, the RO separately denied service connection for gastroesophageal reflux disease (GERD) (claimed as chest pain, ear pain, chronic cough, sore throat, difficulty swallowing, neck pain, hoarseness, feeling of a lump in the throat, and frequent throat clearing) as secondary to the service-connected disability of duodenitis with history of duodenal ulcer. That issue is not on appeal.) The February 2015 rating decision on appeal finalized the reduction from 20 percent to 0 percent effective May 1, 2015. A. Applicable Law Congress has provided that a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Moreover, a rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement, including gastric or duodenal ulcer. 38 C.F.R. § 3.344(a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). A rating becomes entitled to heightened procedural protections under § 3.344(c) only when it has existed at the exact same percentage for at least 5 years. Simon v. Wilkie, 30 Vet. App. 403, 410 (2018). The applicability of § 3.344 is premised on how long a disability rating per VA’s rating schedule has been in place, as opposed to how long some baseline symptomatology has existed. Id. at 411. Section 3.344(a) applies when a rating exists for 5 years without changing its degree or position on the rating schedule. Id. These requirements do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Yet, without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Brown, 5 Vet. App. at 421. Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. “[T]he Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green v. Nicholson, 21 Vet. App. 512 (2006). The instant Veteran’s disability is rated under DC 7399-7305 of 38 C.F.R. § 4.114. The diagnostic code 7399 signifies that the disability is an unlisted condition being rated by analogy to one of the disabilities listed in 38 C.F.R. § 4.114. See 38 C.F.R. § 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). When an unlisted condition is encountered, a disability must be rated by analogy under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The rating schedule is as follows: 7305 Ulcer, duodenal: Severe; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health 60 Moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year 40 Moderate; recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations 20 Mild; with recurring symptoms once or twice yearly 10 B. Discussion In this case, the Board finds that the reduction was not proper. The RO followed the necessary due process steps for the reduction. The RO issued a rating decision in February 2013 proposing to reduce the rating. In the proposed rating notice, the RO advised the Veteran that he had (1) 60 days to present additional evidence to show that compensation payments should be continued at the current level and (2) that he had 30 days to request a predetermination hearing. The RO also notified the Veteran that this reduction would reduce his overall disability rating (for his combined service-connected disabilities) from 50 percent to 40 percent. Subsequent to this notice, the Veteran submitted additional evidence within 60 days, but he did not request a predetermination hearing. Accordingly, the RO issued a final rating decision in February 2015 reducing the rating to 0 percent effective May 1, 2015. The Board notes that May 1, 2015, is greater than 60 days after the last day of the month in which a 60-day period from the date of February 2015 notice to the Veteran of the final action expired. The RO’s actions here satisfied all procedural requirements under 38 C.F.R. § 3.105. Nonetheless, the Board finds that the reduction was not warranted based on the evidence of record. First, as a legal matter, the reduction was made based on the results of a single VA examination conducted in April 2011. The regulation specifically identifies this disability as one subject to temporary or episodic improvement. Therefore, the rating should not have been reduced based on one examination. 38 C.F.R. § 3.344(a). The exception is in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. This exception does not apply to the instant Veteran’s case as subsequent evidence does not clearly show a sustained improvement. It is true that the April 2011 VA examiner’s April 2012 addendum rather definitively indicated that an ulcer was not seen on testing, which meant it had resolved/healed. Consistent with this assessment, a VA primary care provider in May 2017 likewise stated that the Veteran did not have an active ulcer. Nonetheless, a second VA examination was conducted in July 2017. That VA examiner gave an assessment of duodenal ulcer that had gotten worse over time. The examiner cited normal findings on an upper endoscopy in June 2017, but nonetheless gave the positive assessment. Hence, this VA examiner’s assessment shows that a sustained improvement is not clearly established. Moreover, the grant of service connection was based on a January 2004 VA examiner’s assessment of duodenal ulcer with recurrent duodenitis requiring daily medicine for prophylactic treatment. The April 2011 VA examiner did not account for the use of medication, to include whether this impacted the negative findings. A disability rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Overall, the evidence of record does not clearly warrant the conclusion that a sustained improvement had been demonstrated. As such, the reduction in disability rating was not proper. Therefore, the appeal is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.