Citation Nr: 21070880 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-28 874 DATE: November 26, 2021 ORDER Severance of service connection for fibromyositis of the lumbosacral spine with spasm was improper; restoration of service connection for fibromyositis of the lumbosacral spine with spasm is granted. REMANDED The issue of service connection for an acquired psychiatric disorder, to include claimed as secondary to service-connected fibromyositis of the lumbosacral spine with spasm or other service-connected disability is remanded. The issue of service connection for gastritis, to include claimed as secondary to service-connected fibromyositis of the lumbosacral spine with spasm is remanded. The issue of service connection for esophagitis, to include claimed as secondary to service-connected fibromyositis of the lumbosacral spine with spasm is remanded. FINDING OF FACT The grant of service connection for fibromyositis of the lumbosacral spine, pursuant to a June 1973 rating decision, was not clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of service connection for fibromyositis of the lumbosacral spine with spasm was improper; the criteria for restoration of service connection for fibromyositis of the lumbosacral spine with spasm have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1969 to April 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the RO. In March 2021, the Board remanded the claims for additional development of the record. The Board instructed the RO to provide the Veteran with the appropriate notice as required under applicable laws, regulations, and legal precedents. The Veteran has been provided all appropriate notice. Thus, the requested development has been requested and the case has been returned for appellate disposition. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Whether the severance of service connection for fibromyositis of the lumbosacral spine with spasm was proper 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 an unfavorable previous determination overturned. 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. A decision that is reversed or amended based on CUE is revised to conform to the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62. 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 RO originally granted service connection for chronic fibromyositis of the lumbosacral spine in a June 1973 rating decision. In a June 1980 rating decision, the RO proposed to sever service connection for fibromyositis of the lumbosacral spine. The RO explained that the service pre-induction and separation examination reports had no documentation of fibromyositis of the lumbosacral spine. The RO noted that the service treatment records documented the Veteran's complaint of back pain diagnosed as lumbar strain in November 1970. The May 1973 VA examination report reflected that the Veteran experienced mild spasms and tenderness of the paravertebral lumbosacral muscles, had 85 degrees of forward bending and negative straight leg raising, and documented diagnosis of chronic fibromyositis. The RO concluded that the grant of service connection for fibromyositis was clearly and unmistakably erroneous because the Veteran suffered only one acute episode of lumbosacral strain during service. The RO explained that there was no evidence showing continuous treatment during service until the May 1973 VA examination. Thus, the RO determined there was no basis on which service connection for the Veteran's back condition could be maintained. In the September 1980 rating decision, the RO severed service connection for fibromyositis of the lumbosacral spine. The RO referenced the June 1980 proposed rating decision findings, determined that the June 1973 rating decision was clearly and unmistakably erroneous, and concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in June 1980, and 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 July 1980 notice letter also informed the Veteran that he could have a hearing if his request was received before the expiration of the 60 days period. In the September 1980 rating decision, the RO determined that severance of service connection was proper and service connection for fibromyositis of the lumbosacral spine was severed. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in October 1980. Thus, all due process requirements were met in the severance of service connection for fibromyositis of the lumbosacral spine. See 38 C.F.R. § 3.105(d). Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for fibromyositis of the lumbosacral spine was clearly and unmistakably erroneous. Regarding the characteristics of clear and unmistakable evidence, the word 'unmistakable' means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). The severance of service connection was improper because there is no clear and unmistakable evidence, as the term is understood in law, that the Veteran's fibromyositis of the lumbosacral spine did not onset due to disease or injury incurred during service. A November 1970 service treatment record reflects the Veteran had severe lumbar strain. He reported his back disorder was improving but he continued to experience considerable pain and spasm. The impression was lumbar strain. A subsequent November 1970 service treatment record documents the Veteran's complaint of back pain. The February 1971 separation examination report reflects that clinical evaluation of the spine was normal. The May 1973 VA examination report documents the Veteran's complaint, in pertinent part, of low back pain on exertion. On physical examination, the Veteran exhibited spasm and tenderness of the paravertebral lumbosacral spine muscles. Forward bending of the lumbar spine was limited to 85 degrees and single leg raise testing was negative. The diagnosis was chronic fibromyositis of the lumbosacral spine. In the June 1973 rating decision, the RO considered the service treatment records which documented lumbar strain in November 1970 and the findings and diagnosis (chronic fibromyositis of the lumbosacral spine) documented in the May 1973 VA examination report. After reviewing all this evidence, the RO granted service connection for chronic fibromyositis of the lumbosacral spine. As noted, in the June 1980 rating decision proposing to sever service connection, the RO explained that the service pre-induction and separation examination reports had no documentation of fibromyositis of the lumbosacral spine. The RO noted that the service treatment records documented the Veteran's complaint of back pain diagnosed as lumbar strain in November 1970. The May 1973 VA examination report reflected that the Veteran experienced mild spasms and tenderness of the paravertebral lumbosacral muscles, had 85 degrees of forward bending and negative straight leg raising, and documented diagnosis of chronic fibromyositis. The RO concluded that the grant of service connection for fibromyositis was clearly and unmistakably erroneous because the Veteran had only one acute episode of lumbosacral strain during service. The RO explained that there was no evidence showing continuous treatment during service until the May 1973 VA examination. Thus, the RO determined there was no basis on which service connection for the Veteran's back condition could be maintained. However, the Board reiterates that in the June 1973 rating decision granting service connection, the RO considered the service treatment records which documented lumbar strain in November 1970 and the findings and diagnosis (chronic fibromyositis of the lumbosacral spine) documented in the May 1973 VA examination report. Essentially, the RO, in the June and September 1980 rating decisions disagreed with how the RO weighed the facts in the June 1973 rating decision. Such a disagreement as to the weight of the evidence is legally insufficient to establish that there was CUE in the award of service connection. Accordingly, the severance of service connection was improper, and service connection for fibromyositis of the lumbosacral spine is restored. REASONS FOR REMAND 1. The issue of an acquired psychiatric disorder, to include claimed as secondary to service-connected fibromyositis of the lumbosacral spine with spasm or other service-connected disability is remanded. 2. The issue of service connection for gastritis, to include claimed as secondary to service-connected fibromyositis of the lumbosacral spine with spasm is remanded. 3. The issue of service connection for esophagitis, to include claimed as secondary to service-connected fibromyositis of the lumbosacral spine with spasm is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that he has an acquired psychiatric disorder, gastritis and esophagitis that was caused and/or aggravated by his service-connected fibromyositis of the lumbosacral spine. Service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury or for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a), (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). The evidence of record is insufficient for determining whether service connection may be granted for an acquired psychiatric disorder, gastritis, or esophagitis. Given the restoration of service connection for fibromyositis of the lumbosacral spine, VA examination is warranted to determine the etiology of the Veteran's psychiatric disorder, gastritis, and esophagitis. 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed acquired psychiatric disorder. The claims file must be reviewed by the psychologist/psychiatrist. All indicated tests and studies should be performed and the clinical findings should be reported in detail. The Veteran asserts that his psychiatric disorder onset due disease or injury incurred during service, or as secondary (i.e., caused or aggravated by) to his service-connected fibromyositis of the lumbosacral spine. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. After reviewing the entire record, the psychologist/psychiatrist should provide an opinion WITH SUPPORTING EXPLANATIONS as to the following: (A) Does the Veteran have a current acquired psychiatric disorder that is the result of injury or disease sustained during his period of service? (B) Was the Veteran's current psychiatric disorder CAUSED OR AGGRAVATED (worsened) by service-connected fibromyositis of the lumbosacral spine? If aggravation of any psychiatric disorder by service-connected fibromyositis of the lumbosacral spine is shown, the psychologist/psychiatrist should objectively quantify, to the extent possible, the degree of aggravation beyond the level of impairment had no aggravation occurred. THE PSYCHOLOGIST/PSYCHIATRIST MUST CONSIDER AND EXPLAIN WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE PSYCHIATRIC DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE, ACCOUNTING FOR FACTS AND CIRCUMSTANCES SPECIFIC TO THE VETERAN. As indicated above, the psychologist/psychiatrist must review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: *May 1973 VA psychiatric examination report documents diagnosis of depressive neurosis. *November 1983 psychiatric examination report reflects that the Veteran sustained trauma to his head, back, and several parts of his body and since those injuries has experienced nervousness, irritability, quarrelsomeness, nightmares, feeling strange and different as compared to before the injury. On mental status examination, the diagnosis was depressive psychotic reaction. The psychologist opined that the Veteran's emotional condition was precipitated by the trauma he received while serving in the Army when he became depressed, irritable, forgetful, afraid of people, and exhibited somatic complaints and obsessive thoughts. *February 1984 VA psychiatric evaluation report documents diagnosis of schizophrenia, undifferentiated type with marked depressive features. *January 1987 VA psychiatric examination report confirms the diagnosis of schizophrenia, undifferentiated type with marked depressive features. *March 1989 VA psychiatric examination report documents diagnosis of chronic and deteriorated schizophrenia, undifferentiated type with persistent depressive features. THE PSYCHOLOGIST/PSYCHIATRIST IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. Schedule the Veteran for a VA gastrointestinal examination to determine the nature and likely etiology of the claimed gastritis and esophagitis disorders. The claims file must be reviewed by the examiner. All indicated tests and studies should be performed and the clinical findings should be reported in detail. The Veteran asserts that his gastritis and esophagitis disorder onset due to disease or injury incurred during service, or as secondary (i.e., caused or aggravated by) to his service-connected fibromyositis of the lumbosacral spine. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. After reviewing the entire record, the examiner should provide an opinion WITH SUPPORTING EXPLANATIONS as to the following: (A) Does the Veteran have current gastritis and/or esophagitis that is the result of injury or disease sustained during his period of service? (B) Was the Veteran's current gastritis and/or esophagitis CAUSED OR AGGRAVATED (worsened) by service-connected fibromyositis of the lumbosacral spine? If aggravation of any gastritis or esophagitis by service-connected fibromyositis of the lumbosacral spine is shown, the examiner should objectively quantify, to the extent possible, the degree of aggravation beyond the level of impairment had no aggravation occurred. THE EXAMINER MUST CONSIDER AND EXPLAIN WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDERS IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE, ACCOUNTING FOR FACTS AND CIRCUMSTANCES SPECIFIC TO THE VETERAN. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: *April 2015 esophago gastro duodenoscopy findings showed gastritis without mention of hemorrhage and grade A esophagitis. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.