Citation Nr: 21040147 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-20 324 DATE: July 2, 2021 REMANDED The issue of whether severance for the prior grant of service connection for degenerative disc disease of the thoracolumbar spine is proper is remanded. The issue of whether severance for the prior grant of service connection for degenerative arthritis of the cervical spine is proper is remanded. The issue of whether severance for the prior grant of service connection for generalized anxiety disorder (GAD) is proper is remanded. Entitlement to service connection for Barrett's Esophagus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1982 to March 1983, with additional periods of ACDUTRA/INACDUTRA in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2013 and November 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded for further development in January 2019. The matters return for appellate consideration. The Board notes that a claimant may opt a legacy appeal into the AMA following issuance of an SOC by filing a review option set forth in 38 C.F.R. § 3.2500(a) (i.e., request for higher-level review, supplemental claim, or appeal to the Board) within the time allowed for filing a substantive appeal under 38 C.F.R. § 19.52(b), which is 60 days. 38 C.F.R. § 3.2400(c)(2); see also 38 C.F.R. § 19.52 (b)(1). The Veteran submitted a supplemental claim for severance of service connection for GAD in December 2020, six months following the issuance of the SOC in June 2020, therefore it is invalid. The Board also notes that the Veteran submitted relevant evidence following certification of the appeal to the Board. As the current matters on appeal are being remanded for further development, the evidence will be considered by the RO in the first instance. Severance of Service Connection The Veteran contends that severance of his prior grant of service connection for degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the cervical spine, and GAD was improper. 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). 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 for degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the cervical spine, and GAD. The RO originally granted service connection for these conditions in a June 2013 rating decision. In an April 2016 rating decision, the RO proposed to sever service connection for degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the cervical spine, and GAD. The RO noted that service treatment records (STRs) were silent for complaints or treatment for depression, anxiety, herniated bulged disk and high blood pressure, but that additional medical evidence reflected a car accident in October 1994 in which the Veteran suffered a herniated disc. The RO also noted the Veteran's assertions that his depression and anxiety began in 2003, seven to eleven years following active duty service, and was therefore not entitled to service connection for the claimed conditions. The RO determined that the decision to grant service connection for degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the cervical spine, and GAD in June 2013 was clearly and unmistakably erroneous because the evidence failed to show the Veteran's conditions occurred during a period of active military service. In the November 2017 rating decision, the RO severed service connection for degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the cervical spine, and GAD. The RO reiterated the findings of the April 2016 proposed rating decision, namely that the Veteran's conditions were not incurred in active duty or in the line of duty during periods of ACDUTRA/INACDUTRA. The RO concluded that severance was proper. The RO followed the proper due process procedures for severing service connection for the claimed conditions. The RO issued the proposed rating in April 2016, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therein and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The February 2017 notice letter also informed the appellant that he had the opportunity for a hearing. See 38 C.F.R. § 3.105(i). Thus, all due process requirements were met in the severance of service connection for degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the cervical spine, and GAD. 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 degenerative disc disease of the thoracolumbar spine, degenerative arthritis of the cervical spine, and GAD was clearly and unmistakably erroneous. 1. The issue of whether severance for the prior grant of service connection for degenerative disc disease of the thoracolumbar spine is remanded. 2. The issue of whether severance for the prior grant of service connection for degenerative arthritis of the cervical spine is remanded. The Veteran contends severance of service connection for his thoracolumbar and cervical spine conditions was improper. In particular, the Veteran contends that his conditions were the result of an October 1994 motor vehicle accident documented in his service treatment records (STRs). Active service includes periods of ACDUTRA when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of INACDUTRA when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101(23)(C); 38 C.F.R. § 3.6(d). Service personnel records confirm the Veteran had active duty service in the United States Air Force from November 1982 to March 1983. He also had periods of ACDUTRA from July 1982 to July 1988, August 1988 to July 1989, July 1992 to July 1993, and February 2003 to May 2003 and; INACDUTRA from August 1989 to July 1990, August 1990 to July 1991, August 1991 to July 1992, August 1993 to July 1994 with annual tour in April 1994, August 1994 to May 1995, August 1995 to July 1996, August 2002 to May 2003, and July 2003 to July 2004. STRs reflect a herniated disc due to a motor vehicle accident on October 3,1994 and back pains due to a herniated disc in April 2000, which were not periods of active duty or ACDUTRA/INACDUTRA. A May 20, 1995 Report of Medical History notes recurrent back pains. A May 2013 VA examination was obtained. The examination reflected a diagnosis of degenerative disc disease of the thoracolumbar spine and degenerative arthritis of the cervical spine. The Veteran reported a car accident in 1993 and 2001 and asserted that his neck has been bothering him since. He also reported that he suffers from back pains and a herniated disc due to the car accident in service and believes his work in construction caused his back to become increasingly worse. The examiner opined that STRs document a motor vehicle accident in October 1994 and a herniated disc and concluded the Veteran's neck and back injuries were incurred in service. A July 2016 private treatment record from Dr. M.C. noted current chiropractic treatments for the Veteran's neck, thoracic, and back pains. He stated that the Veteran attended six therapeutic sessions per month but was still under normal limits for his cervical and lumbar spine. A private October 2018 medical opinion from Dr. M.C. noted long term treatments for the Veteran's cervical and lumbar spine injuries due to disc herniations and pinched nerves. Dr. M.C. opined that the Veteran's injuries are consistent and causally related with his duties working in military facilities over the years, including climbing poles with gaffs and awkwardly bending over to lift heavy materials. The Board acknowledges the Veteran's sincere belief that his herniated back and cervical spine conditions are related to his periods of active service. However, the preponderance of the evidence reflects that the injuries sustained to his back and neck as a result of the October 3, 1994 motor vehicle accident were not incurred during a period of active duty service or ACDUTRA/INACDUTRA. In fact, the motor vehicle accident was documented on October 3, 1994, but the Veteran's personnel files confirm a period of INACDUTRA from October 15, 1994 to October 16, 1994. As such, the motor vehicle accident did not occur during a period of INACDUTRA. However, the claim does not fail. The Veteran can establish that his back and neck disabilities were aggravated in the line of duty during subsequent periods of INACDUTRA following the October 3, 1994 motor vehicle accident. A May 20, 1995 Report of Medical History demonstrates the Veteran's report of recurrent back pain. The Veteran's personnel files confirm a period of INACDUTRA from May 20, 1995 to May 21, 1995. Furthermore, the October 2018 private opinion states the back and neck injuries are consistent with his duties in service, possibly suggesting aggravation while climbing poles and lifting heavy materials. As such, an addendum opinion is warranted to determine whether the claimed back and neck conditions were the result of an injury incurred in or aggravated in the line of duty during INACDUTRA. 3. The issue of whether severance for the prior grant of service connection for GAD is proper is remanded. The Veteran contends that severance of service connection for GAD is not proper and that his GAD is related to his active service. The Veteran was first treated for anxiety and stress in November 2003. See February 2004 STR. In a September 2012 correspondence, the Veteran reported that his depression and anxiety started in the Spring of 2003 and gradually worsened by September 2003. The Board notes that the Veteran had a period of ACDUTRA from February 2003 to May 2003. In his April 2013 VA examination, the Veteran reported his anxiety symptoms started in 2002 after fears of deployment and that his symptoms had improved after being discharged from the National Guard in 2004 because he no longer feared being deployed anymore. A private medical opinion from Dr. R.E.D., dated March 2018, indicates the onset of the Veteran's anxiety disorder is related to his conflicted feelings about deployment to Iraq in 2002 following the deployment of several unit members. The Veteran reports his fears included being killed or his children losing their father in combat. See April 2018 Medical Treatment Record. In November 2020, the Veteran submitted another private medical opinion from Dr. R.E.D., dated October 2020, linking the Veteran's GAD to basic training in November 1982. The Veteran reported anxiety during training after being reprimanded by a drill sergeant and believed his experiences in basic training to be onset of his condition, which later became more debilitating into a panic disorder during the period preceding his anticipated deployment in 2002. Dr. R.E.D. also noted uncertainty of first-hand knowledge surrounding the Veteran's history of anxiety prior to his initial March 2018 mental evaluation and relied on the Veteran's narration of the facts. Given the Veteran's reported onset of anxiety symptoms during basic training and Spring of 2003, during a period of ACDUTRA, and the first documented treatment for anxiety in November 2003, a medical opinion must be obtained addressing whether the Veteran's acquired psychiatric disability was the result of a disease or injury incurred in or aggravated during active duty service or in the line of duty during a period of ACDUTRA or the result of an injury incurred in or aggravated in the line of duty during a period of INACDUTRA. 4. Entitlement to service connection for Barrett's Esophagus, to include as secondary to GAD, is remanded. The Veteran contends that his Barrett's esophagus is secondary to his GAD. Given the Veteran's assertions that his Barrett's Esophagus is secondary to his GAD, the Board finds that the issue of entitlement to service connection for Barrett's Esophagus is inextricably intertwined with the issue of whether severance is proper for the prior grant of service connection for GAD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Thus, only if GAD is determined to be related to service, the RO should provide an addendum opinion addressing the below deficiencies. A February 2020 VA examination was administered. The examiner opined the Veteran's Barrett's disease is not proximately due to his GAD because the two conditions are unrelated. The examiner noted that anxiety can increase acid in the stomach but because both of his conditions were diagnosed in 2003 it would be difficult to determine which condition occurred first. The examiner also noted a history of stomach ulcers dating back to 1982, with no history of anxiety at such time. Furthermore, the examiner reported that medical literature does not support a causal connection between GAD and Barrett's disease. Lastly, the examiner concluded that the Veteran's Barrett's disease was not aggravated by his GAD due to his long-standing untreated GERD prior to service. The Board finds that the February 2020 opinion is inadequate. The Veteran provided private medical opinions that contradict the findings of the February 2020 VA opinion, namely a finding for an association between anxiety, depression, and stress due to GERD symptoms and damage to the esophagal tissue. See July 2016 Third Party Correspondence and March 2020 Medical Treatment Record. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his degenerative disc disease of the thoracolumbar spine and degenerative arthritis of the cervical spine. Provide a copy of this remand and record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's thoracolumbar and cervical spine conditions were aggravated while performing INACDUTRA. The examiner should consider the May 20, 1995 report of recurrent back pain and the October 2018 private opinion suggesting aggravation of the back and neck conditions due to physical duties in military facilities. A complete rationale must be provided for any opinion rendered. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his GAD. Provide a copy of this remand and record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GAD manifested during any period of ACDUTRA, is related to any injury occurred during a period of INACDUTRA or is otherwise related to active service, to include aggravation while performing INACDUTRA. The examiner must consider the Veteran's reported stressors involving anxiety during basic training in 1982 and fears of deployment to Iraq in 2002. The examiner must also consider the Veteran's statements regarding onset of his depression and anxiety in the Spring of 2003 and gradually worsened by September 2003. A complete rationale must be provided for any opinion rendered. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 3. If the Veteran's GAD is determined to be related to service, to include INACDUTRA, obtain an addendum opinion to determine the nature and etiology of the Veteran's Barrett's Esophagus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including any treatment records and assertions. The examiner must determine whether it is at least as likely as not that the Barrett's Esophagus was either caused by or permanently aggravated by his GAD, to include any medication that he takes for his GAD. "Permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should consider the private medical opinions indicating a causal relationship between the development of stomach acid, GERD, and anxiety. A complete rationale must be provided for any opinion rendered. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. Sarah Campbell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.