LUMBAR SPINE DISABILITY

LAUREN BUSH · 2022 · Case ID: A22022083

GRANTED

Summary

The veteran, who served from August 1958 to October 1960, appeals the severance of service connection for a back disability and bilateral lower extremity radiculopathy. The regional office (RO) had previously granted service connection for a lumbar spine disability and bilateral lower extremity radiculopathy, but later proposed severance, arguing the lumbar spine disability was due to a post-service motor vehicle accident and that the in-service thoracic spine trauma was less significant. The RO severed service connection in October 2021. The Board found the RO's severance action improper. The Board noted that while the lumbar spine disability might be post-service related, probative evidence indicated the thoracic spine disability was due to an in-service injury. Furthermore, evidence suggested the bilateral lower extremity radiculopathy stemmed from the thoracic back disability. The Board found the veteran and his spouse credible regarding back and leg pain since the in-service injury. While one addendum opinion suggested the lumbar spine disability was less likely service-related, it acknowledged the thoracic strain was incurred in service. A subsequent treating physician's letter attributed the thoracic pain and lower extremity symptoms to the in-service injury, estimating a 50% contribution. The Board concluded that the evidence did not demonstrate clear and unmistakable error (CUE) in the original grant of service connection, as probative evidence supported a service connection for the thoracic back disability and its progression to radiculopathy. Therefore, the Board granted the appeal, restoring service connection for the back disability and bilateral lower extremity radiculopathy.

Rationale

Probative evidence indicates thoracic spine disability due to in-service injury.; Veteran and spouse testimony regarding back pain since in-service injury found credible.; Treating physician attributed thoracic pain to in-service injury with 50% contribution.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

220506-243045

Full Decision Text

Citation Nr: A22022083
Decision Date: 11/02/22 Archive Date: 11/02/22

DOCKET NO. 220506-243045
DATE: November 2, 2022

ORDER

The severance of service connection for a back disability was improper; the appeal is granted.

The severance of service connection for right lower extremity radiculopathy improper; the appeal is granted.

The severance of service connection for left lower extremity radiculopathy was improper; the appeal is granted.

FINDING OF FACT

It is not clear and unmistakable error (CUE) as a matter of law or fact that the Veteran's back and bilateral lower extremity radiculopathy did not have onset due to events in-service.

CONCLUSION OF LAW

The severance of service connection for back and bilateral lower extremity radiculopathy disabilities was improper; the criteria for restoration of service connection for a back disability and bilateral lower extremity radiculopathy 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 duty service from August 1958 to October 1960.

These matters are on appeal from an October 2021 rating decision by a Department of Veterans Affairs (VA) regional office (RO).

In the May 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

The Veteran had a hearing before a Veterans Law Judge in June 2022. A copy of the hearing transcript has been associated with the record.

The Veteran contends the severance of service connection for his back disability and his bilateral lower extremity radiculopathy was in error.

The regional office (RO) granted service connection for a lumbar back disability and bilateral lower extremity radiculopathy in an April 2018 rating decision. Important to this case is the Veteran had already been service-connected for a thoracic back strain disability. In this rating decision, however, the Veteran's disability was recharacterized as a lumbar spine disability. The Veteran was then only rated for one back disability.

In April 2021, the RO issued a rating decision proposing to sever service connection for the Veteran's back disability and bilateral lower extremity radiculopathy. The Veteran was sent a notification letter of the proposal to sever service connection in the same month. The RO stated that the previous grant of service connection for a lumbar spine disability was made in error because that disability was directly linked to a post-service motor vehicle accidence (MVA) and not his time in service. The rating decision went on to state: "The thoracic damage incurred in the MVA in 1978 for which [the Veteran] was hospitalized for 13 months dwarfs the thoracic spine contusion trauma described in 1959." was based in error on a July 2010 examination where the examiner "mistakenly noted the condition was at least as likely as not related to service, but in the rationale noted it was most likely due to your civilian injuries and jobs following service."

In October 2021, the RO severed service connection for the Veteran's back and bilateral lower extremity radiculopathy disabilities, effective January 1, 2022, with notice sent to the Veteran in the same month.

Service connection will be severed only where evidence establishes that the award of service connection was clear and unmistakable error (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
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 to have an unfavorable previous determination overturned. See id.

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. Id.

A decision that is reversed or amended based on CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted).

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 Board finds that it did.

The RO issued the proposed severance in an April 2021 rating decision. The Veteran was notified later in an April 2021 letter at his latest address of record of this contemplated action and furnished detailed reasons therefore and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i).

The RO issued the October 2021 rating decision, which severed service connection for his back and bilateral lower extremity radiculopathy disabilities, effective January 1, 2022. Notification of this rating decision, plus his appeal rights, was sent to the Veteran in the
1 letter at his latest address of record of this contemplated action and furnished detailed reasons therefore and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i).

The remaining question before the Board is whether the grant of service connection for a back and bilateral lower extremity radiculopathy disabilities was CUE. The Board concludes the severance of service connection for a back and bilateral lower extremity radiculopathy was improper because there is probative evidence indicating that the Veteran's back disability had its onset during service.

Here, the Veteran has been diagnosed with a back disability and there is evidence in his service treatment records (STRs) that indicate he was seen for his back while in service. Indeed, a rating decision in November 2010 granted service connection for a thoracic back strain. Subsequently, this back disability was recharacterized as a lumbar spine disability.

Here, however, there is probative evidence indicating that while the Veteran's lumbar spine disability was a direct result of his post-service MVA, there is probative evidence indicating his thoracic spine disability was due to his in-service injury. There is also probative evidence indicating his bilateral lower extremity radiculopathy stemmed from his thoracic back disability, not his lumbar spine disability.

The Board finds that since the Veteran was only ever service connected for one back disability, the most appropriate course of action is, instead of delineating between a lumbar spine disability (which evidence shows was not due to his time in service) and a thoracic back disability (which evidence shows was due to his time in service), the question before the Board is whether there is probative evidence the Veteran had a back disability due to his time in service. In this regard, the Board notes that just because there is a subsequent event that worsens or aggravates a service-connected disability, this is not a basis to sever service connection, as suggested by the April 2021 rating decision.

The Veteran's service treatment records (STRs) indicate he was seen for a back injury while in service.

The Veteran and his spouse testified he had back pain and bilateral lower extremity pain since his in-service injury but before his 1978 MVA. (See e.g. June 2022 hearing transcript.) The Board finds the Veteran and his spouse are both competent and credible to testify the Veteran had pain in his back and legs in the period after his in-service injury but before his MVA.

There is some medical confusion as to the etiology of the Veteran's bilateral lower extremity radiculopathy. Some records indicate it is a chronic disease unrelated to his back disability or that it is idiopathic. (See e.g. October 2020, January 2021 examinations.) However, other records indicate the Veteran had degenerative arthritis in his spine with bilateral lower extremity radiculopathy which were a progression of the service-connected thoracic strain. (See e.g. January 2018 treatment records.)

A February 2022 addendum opinion indicated the Veteran's lumbar spine disability was less likely than not caused by or aggravated by the Veteran's service-connected thoracic spine disability. However, importantly, this opinion also indicated the Veteran did suffer a thoracic strain that was incurred during his time in service. The opinion rendered in this examination did not indicate the Veteran did not have a thoracic back condition that was not due to his time in service. Rather, the examiner opined the damage done in the MVA "dwarfed" the damage done in service.

In August 2022, a treating physician wrote a letter regarding the etiology of the Veteran's low back condition and radiculopathy. The physician attributed the Veteran's thoracic pain directly to the in-service injury. The Veteran reported having intermittent pain, numbness, and tingling in the lower extremities "subsequent to his thoracic spine injury." The physician noted some of the Veteran's recent studies showed a thoracic injury that "contributes to his
in service. The opinion rendered in this examination did not indicate the Veteran did not have a thoracic back condition that was not due to his time in service. Rather, the examiner opined the damage done in the MVA "dwarfed" the damage done in service.

In August 2022, a treating physician wrote a letter regarding the etiology of the Veteran's low back condition and radiculopathy. The physician attributed the Veteran's thoracic pain directly to the in-service injury. The Veteran reported having intermittent pain, numbness, and tingling in the lower extremities "subsequent to his thoracic spine injury." The physician noted some of the Veteran's recent studies showed a thoracic injury that "contributes to his lower extremity symptoms." The physician did indicate he believed the low back disability was considered to be a separate condition. The physician concluded: "based on the [Veteran's] subjective complaints and objective findings, we believe that his thoracic axial spine pain and lower extremity symptoms have at least a 50 percent contribution from his thoracic spinal cord injury."

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In this case, the Board finds there was no CUE in the grant of service connection for a back disability and bilateral lower extremity radiculopathy. Here, there is some evidence indicating the Veteran's conditions were due to his time in service, including STRs and an examination opinion. It appears that rather than there being CUE, the RO disagrees with the probative value of the VA examinations and STRs of record and by parsing between a non-service related lumbar spine disability and a service-related thoracic disability. As for the Veteran's bilateral lower extremity radiculopathy, as discussed above, there are multiple opinions as to its etiology, one of which concludes it is due to the Veteran's in-service back disability. The Board finds this does not amount to CUE as the correct facts were before the adjudicator, it appears there were differing opinions as to the etiology of his bilateral lower extremity radiculopathy, and an opinion linking the Veteran's current back condition to his time in service. Therefore, there was no CUE in the grant of service connection for a back disability and bilateral lower extremity radiculopathy.

The appeal is allowed. The severance of service connection was improper and restoration of service connection for a back disability and bilateral lower extremity radiculopathy is granted.

Lauren Bush

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Snoparsky

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.

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