Citation Nr: 21077431 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-51 513 DATE: December 29, 2021 ORDER Severance of service connection not being proper, service connection for right lower extremity radiculopathy is restored, effective the date of the severance of service connection. Severance of service connection not being proper, service connection for left lower extremity radiculopathy is restored, effective the date of the severance of service connection. REMANDED Entitlement to service connection for high blood pressure is remanded. Entitlement to a rating in excess of 10 percent for right wrist degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for left knee pain due to degenerative change to patellar ligament at insertion to tibial tuberosity is remanded. Entitlement to an effective date prior to March 28, 2014 for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to an effective date earlier than December 5, 2012, for a 10 percent rating for right wrist degenerative joint disease, is remanded. FINDINGS OF FACT 1. A December 2014 rating decision granted service connection for right lower extremity radiculopathy and service connection for left lower extremity radiculopathy. 2. An April 2017 rating decision proposed the severance of service connection for bilateral lower extremity radiculopathy. 3. A July 2017 rating decision confirmed severance of service connection for bilateral lower extremity radiculopathy. 4. The evidence of record does not establish that the December 2014 rating decision that granted service connection for right lower extremity radiculopathy and service connection for left lower extremity radiculopathy was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of the award of service connection for right lower extremity radiculopathy was improper, and the criteria for restoration of service connection for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 101, 1110, 1113; 38 C.F.R. § 3.6, 3.105(d), 3.303. 2. The severance of the award of service connection for left lower extremity radiculopathy was improper, and the criteria for restoration of service connection for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 101, 1110, 1113; 38 C.F.R. § 3.6, 3.105(d), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2010 to December 2012. This appeal comes before the Board of Veterans' Appeals (Board) from February 2017 and July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This claim was previously before the Board in November 2018, at which time it was remanded for further development. Severance Once service connection has been granted, it can be severed only upon VA's showing that the rating decision granting service connection was clearly and unmistakably erroneous, and only after certain procedural safeguards have been satisfied. 38 C.F.R. § 3.105 (d) (2015); Daniels v. Gober, 10 Vet. App. 474 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). 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 the 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 indicate that service connection should be maintained. 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). There is a three-pronged test to determine whether clear and unmistakable error (CUE) is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). CUE is a very specific and a rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993); Russell v. Principi, 3 Vet. App. 310 (1992). The same CUE standard that applies to a Veteran's CUE challenge to a prior adverse determination under § 3.105(a) is also applicable in VA's severance determination under § 3.105(d). Once service connection has been granted, § 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and VA meets the high burden of proof. Wilson v. West, 11 Vet. App. 383 (1998); Baughman v. Derwinski, 1 Vet. App. 563 (1991) (§ 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); Graves v. Brown, 6 Vet. App. 166 (1994) (clear and unmistakable error is defined the same under 38 C.F.R. § 3.105 (d) as it is under § 3.105(a)). In a severance case, the evidence that may be considered in determining whether severance is proper under § 3.105(d) is not limited to the evidence before the RO at the time of the initial service connection award. Daniels v. Gober, 10 Vet. App. 474 (1997); Venturella v. Gober, 10 Vet. App. 340 (1997). Because § 3.105(d) specifically contemplates that a change in diagnosis or change in law or interpretation of law may be accepted as a basis for severance, the regulation contemplates the consideration of evidence that is acquired after the original granting of service connection. If a service connection award could only be terminated pursuant to § 3.105(d) on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record. Venturella v. Gober, 10 Vet. App. 340 (1997). Whether the severance of service connection for right lower extremity radiculopathy was proper Whether the severance of service connection for left lower extremity radiculopathy was proper The Veteran received a VA examination in June 2014 for his back and the examiner noted moderate constant pain in the bilateral lower extremities. Based on the results of the examination, the examiner found that the Veteran likely had radiculopathy but there were no objective findings to determine nerve involvement and severity; he noted that the Veteran's radiculopathy was subjective, as the examination was within normal limits. An October 2016 VA Peripheral Nerves Conditions examination revealed that the Veteran did not have a diagnosis of a peripheral nerve condition or peripheral neuropathy. He reported decreased sensation circumferentially from the waist down, but that was not a radicular or peripheral nerve pattern. The reported sensory deficit, pain, and limitation of function were greatly disproportionate to the imaging that was available; normal x-rays and MRI showed no disc herniation or nerve root compression. A private medical record by Dr. M. O. from November 2016 revealed paresthesias as an active problem. A VA examiner submitted an addendum in March 2017 and, after reviewing the conflicting medical evidence, found that the 2016 EMG study did not support a diagnosis of radiculopathy. She noted that the June 2014 VA examination did not include a diagnosis of radiculopathy. Furthermore, the October 2016 examination, which included "radicular pain," was not supported by any reported clinical neurological findings. The March 2017 examiner concluded that, in the absence of consistent objective clinical findings or lab evidence of a neurological abnormality, there was insufficient evidence to support the diagnosis of radiculopathy or "radicular pain" for either lower extremity. The Board finds that VA has not met the high evidentiary burden of showing clear and unmistakable error in the rating decision granting service connection for right lower extremity and left lower extremity radiculopathy. While the March 2017 addendum opinion notes that an EMG did not support a diagnosis of radiculopathy, she did not address the competent complaints of pain or the moderate constant pain noted at the January 2014 VA examination. Furthermore, she did not address the November 2016 private treatment record showing paresthesias as a current active problem. Given this conflicting evidence, the grant of service connected does not appear to be an "undebatable" error. Russell, 3 Vet. App. at 310. Based on this record, the Board concludes that VA has not met the burden of showing clear and unmistakable error in the grant of service connection for right lower extremity and left lower extremity radiculopathy; thus the severance of service connection was improper. REASONS FOR REMAND Entitlement to service connection for high blood pressure As the Veteran's medical records establish a diagnosis or persistent symptoms of high blood pressure, and there is an indication, through assertions of the Veteran, that the disability may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran VA examinations to determine the nature and etiology of this disability. Entitlement to a rating in excess of 10 percent for right wrist degenerative joint disease Entitlement to a rating in excess of 10 percent for left knee pain due to degenerative change to patellar ligament at insertion to tibial tuberosity Entitlement to an effective date earlier than December 5, 2012, for a 10 percent rating for right wrist degenerative joint disease The Veteran received VA examinations of his right wrist in November 2016 and September 2019, and VA examinations of his left knee in February 2017 and September 2019. The Board has reviewed those examination reports and notes that they are not adequate, as it does not appear that any passive, weight-bearing and nonweight-bearing range of motion testing, was conducted at that time. Consequently, the Board finds that further remand is necessary for another VA examination so that the examiner can include an estimate as to those measurements. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Regarding the claim entitlement to an effective date earlier than December 5, 2012, for a 10 percent rating for right wrist degenerative joint disease, this issue is intertwined with the claim for a rating in excess of 10 percent for right wrist degenerative joint disease, which is being remanded for further development. Accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) Entitlement to an effective date prior to March 28, 2014 for TDIU Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o) (2017); Harper v. Brown, 10 Vet. App. 125 (1997). VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to March 28, 2014, the Veteran's service-connected disabilities included: (i) thoracolumbar spine degenerative disc and joint disease (20 percent); (ii) right wrist degenerative joint disease (10 percent); (iii) left knee pain (10 percent); (iv) left shoulder strain (10 percent); (v) tinnitus (10 percent); (vi) costochondritis (0 percent); and (vii) allergic rhinitis. Based upon the above, the Veteran's combined disability rating does not meet the schedular criteria for a TDIU rating prior to March 28, 2014. See 38 C.F.R. § 4.16(a). There is, however, plausible evidence of record that suggests the Veteran may have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for this period, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. While these findings did not preclude the possibility of any employment prior to March 28, 2014, they do show that the Veteran's service-connected disabilities significantly impaired his employability. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). In light of this evidence, the Board finds the issue of entitlement to TDIU benefits prior to March 28, 2014, under 38 C.F.R. § 4.16(b) should be referred to the Director of Compensation and Pension Service for adjudication. For these reasons, the Board finds that a remand for this referral is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination so as to determine the current severity of his right wrist and left knee disabilities. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The right wrist and left knee must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the Veteran's range of motion results from the November 2016, February 2017, and September 2019 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. 2. Refer the case to the Director of Compensation for an opinion with respect to whether the Veteran was unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16(b) prior to March 28, 2014. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.