Citation Nr: 22017216 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-16 918 DATE: March 24, 2022 ORDER Restoration of service connection for right lower extremity sciatica, effective May 1, 2014, is granted. Restoration of service connection for left lower extremity sciatica, effective May 1, 2014, is granted. FINDING OF FACT The grant of service connection for bilateral lower extremity sciatica in a May 2013 rating decision was not clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria for restoration of service connection for bilateral lower extremity sciatica are met. 38 U.S.C. §§ 1131, 5109A (2021); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.310, 4.71a, Diagnostic Code 5237 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to October 1989. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In September 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing, and a transcript of the hearing is associated with the record. At that time, the Veteran waived initial AOJ review of evidence that had been received since the most recent January 2018 statement of the case. Additionally, the record was held open for ninety days for submission of additional evidence, which was received in November 2021. 1. Whether the February 2014 severance of service connection for right lower extremity sciatica was proper. 2. Whether the February 2014 severance of service connection for left lower extremity sciatica was proper. The Veteran contends that the severance of service connection was improper as he has a current diagnosis of bilateral lower extremity sciatica, which results in leg pain, that has been attributed to his service-connected disability of somatoform pain disorder with low back pain. Upon review of the record, the Veteran has a separately diagnosed sciatica disorder, which is caused by and not included in the rating for the back disorder. Therefore, the May 2013 grant of service connection for bilateral lower extremity sciatica was not clearly and unmistakably erroneous, and restoration of service connection is warranted. 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). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection. 1. Due Process 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). The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The AOJ originally granted service connection for right and left lower extremity sciatica in a May 2013 rating decision. Shortly thereafter, in August 2013, the AOJ conducted a quality review of the Veteran's file, and determined the award of service connection for sciatica had been done in error. Thus, in November 2013, the AOJ proposed to sever service connection for the sciatica disorders. The AOJ stated that the decision to grant service connection was clearly and unmistakably erroneous because the Veteran's sciatica was wholly subjective, and without objective indicators it should have been included in the rating for the somatoform pain disorder with low back pain. In a February 2014 rating decision, the AOJ severed service connection for these disabilities prospectively effective May 1, 2014. The AOJ reiterated the findings of the November 2013 rating decision that had proposed to sever service connection, and concluded that severance was proper. The AOJ followed the proper due process steps for severing service connection. The AOJ issued the proposed rating in November 2013, 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 in a November 2013 notice letter. The AOJ issued the February 2014 rating decision, which severed service connection prospectively effective May 1, 2014. The resulting period for which the Veteran was awarded service connection for bilateral sciatica began January 31, 2012, and ended May 1, 2014, a period of less than ten years. 38 C.F.R. § 3.957. Notice of this rating decision, plus his appeal rights, was sent to the Veteran on February 19, 2014. The May 1, 2014, date was greater than the last day of the month in which a 60-day period from the date of the February 2014 notice expired. Thus, all due process requirements were met in the severance of service connection for bilateral sciatica. See 38 C.F.R. § 3.105(d). 2. Existence of CUE in the Award of Service Connection Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection bilateral sciatica was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because the grant was based on a VA examiner's separate diagnosis of sciatica disabilities, and the record further supports the fact that the sciatica disabilities, while secondary to the back disability, are separate. Therefore, the grant of service connection was not a clear and unmistakable error. 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) (internal citations omitted). A clear and unmistakable error is one about which reasonable minds could not differ. See 38 C.F.R. § 3.105(a)(1)(i). In most respects, the CUE standard for severing service connection under 38 C.F.R. § 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). 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 v. Nicholson, 20 Vet. App. 482, 488 (2006). For background, the Veteran was granted service connection for a somatoform pain disorder with chronic low back pain, related to a motor vehicle accident that occurred during his active service, in a November 1989 rating decision. Then, in January 2012, he filed a supplemental claim for service connection for numerous disabilities, including a lower back condition and "pain in both legs." January 2012 Veteran Supplemental Claim. The medical evidence of record shows that the Veteran began reporting complaints of back pain radiating down his bilateral lower extremities roughly in September 1997. See September 1997 Outpatient Care Notes. He continued thereafter to report bilateral leg pain, which was associated with his back pain, and his private doctor recommended an MRI in 2004, which was unremarkable. See e.g. July 2004 VA Treatment Records. The Veteran then underwent a VA examination for his claimed leg disorders in March 2013 and back disorder in April 2013. At the leg examination, the Veteran reported bilateral leg pain that he believed was caused by his back, and the examiner noted a history of treatment for back pain with right leg sciatica. The VA examiner conducting the leg examination did not note any specific findings or diagnosis related to a bilateral sciatica disorder. In contrast however, the April 2013 examiner conducting the back examination, diagnosed bilateral lower extremity sciatica after the Veteran reported pain radiating from the lower back into both legs. The examiner found that there were no signs or symptoms of radiculopathy, but nonetheless opined that the claimed bilateral leg pain is diagnosable as sciatica, and the sciatica was at least as likely as not secondary to his service-connected back disorder. Based on the above examination, the AOJ granted service connection for bilateral lower extremity sciatica in the May 2013 rating decision, assigning separate 10 percent ratings for each lower extremity. However, in the quality review noted above, the AOJ determined that objective findings were required for a separate rating for objective associated neurological abnormalities, and the severance process followed. In the interim period since the severance, the Veteran continued to undergo treatment for his sciatica and additional records have been associated with the file. In February 2014, the Veteran was treated for leg pain that was related to varicose veins, and he underwent a phlebectomy. February 2014 Vein Specialists of the South Treatment Records. The Veteran continued to be treated by his private physician, complaining separately of right leg radiating pain, left leg radiating pain, and bilateral radiating pain. See e.g. January 2016 Central Georgia Internal Medicine Records. He was diagnosed with bilateral sciatica, and underwent another MRI in February 2016, which noted complaints of right sided sciatica, and found degenerative spinal changes, with some bulging, facet hypertrophy, and some canal narrowing. Importantly, the private physician also provided an opinion in November 2021, in which he noted that the Veteran had been treated for bilateral sciatica since 2001. He also opined that the sciatica was more likely than not secondary to the somatoform pain disorder with back pain. Based on the foregoing, the Board is unable to state that the rating decision that granted service connection was clearly and unmistakably erroneous. Importantly, the AOJ has failed to identify a clear and unmistakable error. See Allen, supra. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In the instant case, the AOJ severed service connection initially because there were no objective neurological findings related to sciatica, and thus it should not have been separately rated. Then, confusingly, in the statement of the case, the AOJ stated that the reason for the severance was that the Veteran did not have a diagnosis of sciatica. Addressing the second reasoning first, the record is clear that the Veteran has a diagnosis of sciatica. While his treatment records vary in complaints of bilateral versus right side versus left side sciatica, he consistently reported experiencing such symptomatology and he has been consistently diagnosed with sciatica since 2001 per his private treating provider. Additionally, the VA examination report of record also confirms the diagnosis of sciatica. While the Veteran was concurrently treated for leg pain which was, at the time, associated with varicose veins, his diagnoses of sciatica were not refuted at any point in the record. Thus, the second reasoning for the severance in the January 2018 statement of the case is not supported by the record. Turning to the initial basis for severance, the AOJ relied on a section of the ratings criteria for the back disorder in supporting the decision. Specifically, the Veteran's back disability is rated pursuant to Diagnostic Code 5237, which is included under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5237-5242. The rating for spinal disabilities were changed effective February 7, 2021; however, the change did not affect the parts of the regulation pertinent to this appeal and thus does not affect the current appeal. In this regard, ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, DCs 5237-5242 (emphasis added). Further, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237-5242, Note (1). Based on the preceding sections, the AOJ determined that the record did not show the Veteran had objective neurological abnormalities. Notably, the VA examiner noted there were no signs or symptoms of radiculopathy, his reflexes were normal, and his sensory testing was normal. Thus, his sciatica was represented by subjective reports of pain only, and should have been included in the rating for the back disability. Upon review, this explanation for severance of service connection is insufficient, and does not show that the grant of service connection was clearly and unmistakably erroneous. In this regard, while the VA examiner did not specifically note objective signs and symptoms of radiculopathy, the examiner did provide a separate diagnosis of bilateral sciatica, which was attributed to the back disability. The private physician has also considered sciatica a separate diagnosis, while again, being secondary to the back disability. The record is uniform in finding that the Veteran has bilateral lower extremity sciatica, that is secondary to the service-connected back disability. Therefore, the grant of service connection was correct. The issue the AOJ found is rather a downstream rating issue. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, the AOJ is attempting to fix a potentially improper rating resulting in pyramiding, by potentially rating the radiating pain twice, by severing service connection. This is an error, as the record shows a current disability exists, and is proximately due to a service-connected disability, and thus the elements of secondary service connection are met. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448. The record includes two etiological opinions regarding the bilateral sciatica, the April 2013 VA examiner's opinion and the November 2021 private physician's opinion. The VA physician noted a review of the record, included some references to treatment records and lay statements in the examination, and supported the rationale with citations to that data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The private physician has given continuous care to the Veteran since 2001, and clearly knows his medical, service, and lay history. See Nieves-Rodriguez, 21 Vet. App. at 303; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (a thorough and contemporaneous medical examination is "one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Importantly, there is no medical opinion of record to the contrary. Accordingly, the severance of service connection was based on a misapplication of the ratings criteria, and was not an error for which reasonable minds could not differ. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Importantly, the issue at hand is not whether the Veteran has objective associated neurological abnormalities of sciatica which should be included in the rating for the back disability, but whether it was a clear and unmistakable error to grant service connection. Consequently, while as noted above, the record is not without conflict as to the objective manifestations of sciatica, the Board concludes that the grant of service connection for bilateral lower extremity sciatica as secondary to the service- connected back disability was not "clearly erroneous", and thus severance of service connection for this disability, effective May 1, 2014, was improper. Restoration of service connection is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.