Citation Nr: 21065238 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-08 943 DATE: October 25, 2021 ORDER As the severance of service connection for thoracolumbar strain (claimed as back condition) was improper, service connection is restored, and the appeal is granted. FINDING OF FACT It is not clear and unmistakable that a preexisting back condition was not aggravated during service or that the current thoracolumbar strain (claimed as back condition) is related to the symptoms during service. CONCLUSION OF LAW The severance of service connection for thoracolumbar strain (claimed as back condition) 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 September 2010 to September 2014. The case is on appeal from a June 2017 rating decision. In October 2021, the Veteran testified at a Board hearing. Whether the severance of service connection for thoracolumbar strain (claimed as back condition) was proper Background Service connection for thoracolumbar strain (claimed as back condition) was granted in a September 2014 rating decision. The RO found that service connection was established as directly related to service. The RO cited a July 2014 VA examination. The RO did not otherwise discuss the evidentiary underpinning for the grant. An August 2015 rating decision proposed to sever service connection. The RO explained ath a clear and unmistakable error had been made in the grant of service connection because the service entrance examination noted preexisting loss of lumbar lordosis, and the September 2014 rating decision had granted service connection on a direct basis for thoracolumbar strain without having obtained an opinion on aggravation. To this end, the RO found that the evidence does not show that the condition, which existed prior to service, permanently worsened as a result of service. The RO cited an August 2015 VA examiner's opinion stating that the evidence of record does not support that this condition was permanently aggravated beyond its natural progression by service. The RO made the severance final in the June 2017 rating decision on appeal. The RO cited the reasons set forth in the proposed action. The RO also cited medical records from a private (non-VA) treatment provider, which the RO found did not address whether there was aggravation during service. The instant appeal followed. The Veteran contends that the condition was asymptomatic prior to service, including at service entrance, when a complete physical examination noted only miniscule curve in the spine. He argued that the curvature of the spine greatly increased during his four years of service, and he continued to seek treatment after service. See 10/20/201 Board Hr'g Tr.; 8/10/2017 Notice of disagreement (NOD). He contends that he first sought treatment during service in April 2012 because his back pain had been progressively getting worse, but he was not afforded further treatment because he was told to "suck it up" while on deployment. He continued to deal with progressively worsening pain with normal day-to-day operations during service aggravating his back pain. He did not seek any further treatment in order to avoid being labeled a malingerer. He had continued to seek treatment for back pain after service. See 10/20/2015 Veteran testimonial statement. 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). 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 followed the proper due process steps for severing service connection. First, the RO issued a proposed rating in August 2015. The Veteran was notified in August 2015 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 August 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 statement in October 2015 in response. He did not request a predetermination hearing. The RO then issued the June 2017 rating decision, which severed service connection prospectively effective September 1, 2017. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under a June 2017 cover letter. The September 1, 2017 final severance date was greater than the last day of the month in which a 60-day period from the date of the June 2017 notice expired. Thus, all due process requirements were met in severance service connection. See 38 C.F.R. § 3.105(d). Analysis The question before the Board in this case is whether the grant of service connection for thoracolumbar strain (claimed as back condition) was clearly and unmistakably erroneous. The Board concludes that a grant of service connection is not clear and unmistakable error as there is conflicting, but not clear and unmistakable, evidence that the Veteran's preexisting back condition was aggravation during service. There is no material dispute that the Veteran has a current diagnosis. VA examinations in July 2014 and in June 2015 confirmed the diagnosis of thoracolumbar strain. There is also no material dispute that the Veteran had symptoms during service. He was seen during service in April 2012 for complaints of lower back pain for approximately six months, although none at that present moment. He felt it most while "wearing flak," but was fine on most normal days. He had flare ups approximately once a week. The assessment was type II lumbar dysfunction, not otherwise specified (NOS), no signs of spinal emergency. He requested to have no treatment. At his May 2014 service separation examination, the Veteran endorsed a positive history of recurrent back pain or any back problem, and bone, joint, or other deformity. The Veteran wrote in explanation "Back pain, lower back" and "Crooked spine." The examiner's assessment was chronic back pain secondary to scoliosis and worsened by prolonged physical activity, heavy lifting, plus frequent lumbar muscle spasms after high impact exercise. A physical examination showed dextroscoliosis, and the Veteran was advised to follow-up with VA after separation. These service treatment records (STRs) confirm symptoms in service. Finally, there appears to be no material dispute that the current thoracolumbar strain is related to the symptoms manifesting during service. A medical opinion was not obtained to address this question, but one does not appear needed as the evidence shows ongoing symptoms after service. The August 2015 VA examiner did not indicate otherwise. In short, there is a current diagnosis, in-service manifestation of symptoms, and evidence that the current condition (or aggravation thereof) arose during service. The central question in dispute is whether a preexisting condition was aggravated during service. A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2014); 38 C.F.R. § 3.304 (b) (2015); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A disorder is considered "noted" even if asymptomatic at the time of service entrance. Verdon v. Brown, 8 Vet. App. 529, 535 (1996). If a condition is noted at the time of service entrance, a veteran is not entitled to the presumption of soundness. Wagner, 370 F.3d at 1096. Under such circumstances, service connection is warranted if the preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). It is the veteran who must show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). Under § 1153, once a veteran establishes worsening, "the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012) (citing Wagner, 370 F.3d at 1096). In this case, the May 2010 service enlistment examination noted loss of lumbar lordosis, which the Veteran said was asymptomatic. The assessment was abnormal spine examination, and X-rays revealed positive findings of dextroscoliosis, levoscoliosis, and straightening of upper lumbar lordosis. This was labeled as not considered disqualifying ("NCD"). Because a lumbar spine condition was noted at service entrance, the presumption of soundness does not apply. The question then becomes whether the presumption of aggravation applies. On this question, the Board finds probative that the Veteran sought treatment in April 2012, as discussed above, for complaints of back pain. According to the separation examination and his post-service statements, the symptoms continued throughout service and after service. The Board also finds probative the Veteran's current testimony indicating worsening back pain throughout service. This is some evidence of a worsening during service. There is some negative evidence. Specifically in August 2015, a VA examiner opined that the condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner noted the service entrance findings, plus the service separation assessment. The examiner reasoned that the Veteran was seen once over the course of four years but not treated for any complaints chronic low back pain (only seen once with complaints and requested no treatment) over the course of his service. The examiner found no supporting documentation of any complaints or treatment for complaints low back pain in the last 11 months since discharge in September 2014. The examiner determined that there was insufficient medical evidence that his preexisting dextroscoliosis/loss of lumbar lordosis was made worse by service. The Board does not find this VA examiner's opinion particularly probative. First, it appears to not have been impartial, unbiased, and neutral. The VA examiner prefaced the opinion by citing the RO's proposed severance indicating that the Veteran had been erroneously granted service connection to include the question of whether "the Veteran should have been granted service connection for this condition." By citing this language, the examiner appears to have been influenced by the RO's negative characterization of the medical question at issue. See Austin v. Brown, 6 Vet. App. 547, 553 (1994)); Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994). Second, this VA examiner impermissibly relied on an absence of documented treatment during service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See, McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). In other words, the examiner did not appear to consider the validity of the Veteran's statements the he had worsening symptoms during service, which were assessed as chronic back pain by the time of service separation. The VA examiner's opinion, therefore, does not follow from the accurate facts and information of record. Hence, this opinion is not especially persuasive or probative. Therefore, it is not clear and unmistakable evidence that the back condition was not aggravated during service. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Overall, it is not clear and unmistakable that the Veteran's preexisting back condition did not undergo a permanent worsening during service. To the contrary, the more probative evidence indicates that a permanent worsening occurred. In either event, the determination of aggravation, at this point, amounts to no more than a disagreement as to how to weigh the facts. The evidence presents a reasonable disagreement as to such, and reasonable minds could disagree as to the ultimate determination. However, 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. Hence, the severance of service connection on this basis was improper. Accordingly, service connection is restored, and the appeal is granted. STEVEN D. REISS 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.