Citation Nr: 21026745 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-20 493 DATE: May 3, 2021 ORDER The severance of the award of service connection for degenerative joint disease of the left hip effective August 1, 2014, was not proper; the claim for restoration of service connection is granted. The severance of the award of service connection for degenerative joint disease of the right hip effective August 1, 2014, was not proper; the claim for restoration of service connection is granted. FINDINGS OF FACT 1. An August 2013 rating decision granted service connection for degenerative joint disease of the left and right hips. 2. A May 2014 rating decision severed service connection for degenerative joint disease of the left and right hips. 3. The evidence of record does not establish that the August 2013 rating decision that granted service connection for degenerative joint disease of the left and right hips was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of the award of service connection for degenerative joint disease of the left hip was improper, and the criteria for restoration of service connection have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.105(d), 3.303, 3.304, 3.307, 3.309. 2. The severance of the award of service connection for degenerative joint disease of the right hip was improper, and the criteria for restoration of service connection have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.105(d), 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to May 1991, September 1994 to March 1995, December 1995 to August 1996, January 2003 to September 2007, November 2007 to December 2008, and March 2011 to February 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing is of record. 1. Restoration of the award of service connection for degenerative joint disease of the left hip 2. Restoration of the award of service connection for degenerative joint disease of the right hip The Veteran seeks restoration of the awards of service connection for degenerative joint disease of the left and right hip. Service connection for these disabilities was originally awarded in an August 2013 rating decision, effective February 4, 2012. In a May 2014 rating decision, however, the RO determined these service connection awards were the result of clear and unmistakable error, and service connection was severed, effective August 1, 2014. The Veteran has disagreed with this severance decision. The United States Court of Appeals for Veterans Claims (Court) has set forth 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). The Court has further stated that a 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, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). The Court has held that 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 the Government's severance determination under § 3.105(d). "Once service connection has been granted, section 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof." See Wilson v. West, 11 Vet. App. 383 (1998); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 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"). In a severance case, the evidence that may be considered in determining whether severance is proper under 38 C.F.R. § 3.105(d) is not limited to the evidence before the RO at the time of the initial service connection award. See Daniels, 10 Vet. App. at 480; cf. Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). The Court has reasoned that because 38 C.F.R. § 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 acquired after the original granting of service connection. The Court also has reasoned that "[i]f the Court were to conclude that... a service connection award can be terminated pursuant to section 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, the 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, 10 Vet. App. at 342-43. In the present case, the original award of service connection was granted on a presumptive basis, as the Veteran's degenerative joint disease of the bilateral hips was originally found to have manifested within a year of his February 2012 service separation. Upon subsequent review however, the RO found that the VA examination confirming a current diagnosis of degenerative joint disease of the bilateral hips was conducted in June 2013, over a year after his service separation. Thus, the RO concluded, the award of service connection was the product of clear and unmistakable error, and severance was proper. The Veteran filed an initial VA compensation claim for service connection for various disabilities which was received in April 2012. He did not, however, claim service connection for a disability of either hip at that time. In December 2012, the Veteran visited the RO to provide additional medical records. He also requested his service connection claim be amended to include service connection for bilateral hip disabilities. In support of his appeal, the Veteran has testified that while his degenerative joint disease of the bilateral hips was not confirmed via x-ray until the June 2013 VA examination, he experienced pain of the bilateral hips during and immediately following service. With consideration of the criteria set forth above and all the evidence and information of record, to include the credible testimony presented by the Veteran at the hearing before the Board, and medical evidence showing continued diagnosis of degenerative joint disease of the bilateral hips, the Board finds that the August 2013 rating decision that granted service connection for degenerative joint disease of the bilateral hips was not clearly and unmistakably erroneous. While degenerative joint disease of the hips was not formally diagnosed until more than a year after the Veteran's February 2012 separation from active duty service, as the RO concluded, the record does not clearly and unmistakably establish that degenerative joint disease of either hip did not manifest prior to the June 2013 VA examination. The Veteran has asserted he experienced bilateral hip pain prior to that date, and did seek in December 2012, within a year of service separation, to amend his service connection claim to include bilateral hip disabilities. In short, as the record before the adjudicators in August 2013 did in fact include evidence of disabilities of the bilateral hips, while others may have reached a different conclusion as to the matter in question, such is tantamount to mere "disagreement as to how facts were weighed or evaluated." Moreover, the evidence acquired after the original granting of service connection continues to confirm a diagnosis of degenerative joint disease of the bilateral hips and does not refute the possibility of onset of this diagnosis prior to June 2013. See generally, Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Therefore, the grant of service connection for degenerative joint disease for the bilateral hips in the August 2013 rating decision does not represent CUE but instead a reasonable exercise of rating judgment. Damrel, Russell, supra. (Continued on the next page) Thus, as the Board finds that the August 2013 rating decision that granted service connection for degenerative joint disease of the left and right did not constitute CUE, severance of service connection was improper. Thus, the claims to restore service connection for these disabilities are granted. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.