TIBIA AND FIBULA IMPAIRMENT OF

P.M. DILORENZO · 2026 · Case ID: A26034315

GRANTED

Summary

The veteran, who served from August 2006 to August 2010, appeals the severance of service connection for a left anterior lower leg fracture with associated muscle hernias. The initial award of service connection in April 2018 was based on secondary connection to a service-connected left shoulder disability. In November 2020, the agency of original jurisdiction (AOJ) proposed to sever this connection based on a September 2020 VA medical opinion, which found it less likely than not that the leg injury was proximately due to the shoulder condition. The veteran did not respond to the severance notice. The AOJ severed the claim in January 2021, and the veteran appealed. The Board reviewed the evidence, including the veteran's testimony and various medical opinions. A March 2018 VA opinion found a positive nexus, stating the leg disability was at least as likely as not due to the shoulder condition, but failed to address aggravation and certain treatment records. A September 2020 VA opinion found less than a likelihood of nexus, citing lack of documentation and contradictory statements from the veteran, but also failed to address aggravation and missed some treatment records. The Board found the September 2020 opinion inadequate because it did not adequately address aggravation or all treatment records. The Board concluded that the evidence was not clearly and unmistakably erroneous regarding the secondary connection, meaning the severance was improper. Therefore, service connection was restored.

Rationale

Severance of service connection requires clear and unmistakable error.; September 2020 VA opinion found inadequate for failing to address aggravation and all treatment records.; Conflicting evidence regarding nexus and aggravation means severance burden not met.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210203-138682

Full Decision Text

Citation Nr: A26034315
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 210203-138682
DATE: April 14, 2026

ORDER

Severance being improper, restoration of service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle of left leg, effective April 1, 2021, is granted.

FINDING OF FACT

The evidence does not show that the April 2018 rating decision granting service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle of left leg was clearly and unmistakably erroneous.

CONCLUSION OF LAW

The severance of service connection was improper; the criteria for restoration of service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle of left leg, effective April 1, 2021, have been met. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 2006 to August 2010.

The rating decision on appeal was issued in January 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the February 3, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on October 29, 2024. Therefore, the Board may only consider the evidence of record at the time of the January 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Whether the severance of service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle of left leg, effective April 1, 2021, was proper.

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.

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 on 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 Veteran was initially awarded service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle as secondary to service connected left shoulder disability in an April 2018 rating decision.

In November 2020, the AOJ issued a rating decision proposing to sever service connection for status post left anterior lower leg fracture with left tibialis
within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective on 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).

In November 2020, the AOJ issued a rating decision proposing to sever service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle based on the findings of a September 2020 VA medical opinion. The AOJ informed the Veteran he had 60 days to provide evidence refuting the determination or request a personal hearing within 30 days. The Veteran did not respond within 60 days or request a personal hearing within 30 days.

In the January 2021 rating decision on appeal, the AOJ severed service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle, effective April 1, 2021, more than 60 days of the last day of the month in which a 60-day period from the date of the January 2021 notice expired. Thus, all due process requirements were met in the severance of service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle.

Severance

Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for OSA was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper.

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. 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. 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); 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 post-date 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).

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).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

Secondary service connection is granted where a service-connected disability causes or aggravates a nonservice-connected disability. See 38?C.F.R. §?3.310; see also Allen v. Brown, 7?Vet. App.?439, 448 (1995). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38?C.F.R. §?3.310(b).

The threshold legal requirements for a successful secondary service connection
service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

The threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence that the disability for which service connection is sought is proximately due to, or aggravated by, the service-connected disability. See Wallin v. West, 11?Vet. App.?509, 512 (1998).

As an initial matter, the AOJ conceded the Veteran's current disability and that the claimed primary disability is service connected. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c).

Turning to the evidence of record, the Veteran asserted his service connected shoulder disability collapsed while practicing and caused a compound fracture of his left leg. See July 2016 VA Form 21-4142. In December 2016, the Veteran reported that his shoulder is constantly popping, dislocating in and out of place every other day and it caused him to break his leg. See December 2016 correspondence. He explained that while attempting to perform a back handspring, his shoulder dislocated midair and caused him to fall and completely break his leg. Id. In October 2024, the Veteran testified that he felt he would not have broken his leg if his service connected shoulder did not give out. See October 2024 hearing transcript. He testified that he injured his leg while doing a back handspring. Id.

A November 2014 private treatment record notes the Veteran was brought to the ER by ambulance status post a left leg injury while in gymnastics class, and the ER exam noted that the Veteran reported he made a wrong step on a trampoline and injured his leg. See November 2014 private treatment records.

The Veteran was afforded a VA examination in March 2018. The VA examiner noted the Veteran's report that his shoulder gave out while working out in 2014 that led to him to land short, resulting in snapping his leg. See March 2018 VA examination. The VA examiner opined that at it was at least as likely as not that the Veteran's left leg disability was proximately due to his service connected shoulder disability. See March 2018 VA medical opinion. As rationale, the VA noted the basis for the opinion was the information provided by the Veteran; his left shoulder acted up in a quick instance with severe pain that made him lose his balance while doing some gym exercises; and because of that, he sustained the left leg injury. Id. The VA examiner noted it was likely the Veteran experienced a flare up of his shoulder disability that led to the unfortunate sequence of events. Id.

In September 2020, the AOJ requested an addendum medical opinion regarding whether the Veteran's left leg fracture was at least as likely as not caused by the service connected left shoulder disability. See September 2020 exam request. The AOJ noted the March 2018 VA examiner did not address the Veteran's November 2014 private treatment record indicating the Veteran injured his left leg while jumping on a trampoline.

A September 2020 VA examiner opined that it was less likely than not that the Veteran's left leg fracture was proximately due to or the result of the service connected left shoulder disability. See September 2020 VA medical opinion. As rationale, the VA examiner noted the Veteran's report that his shoulder gave out in 2014 that led to his left leg fracture. Id. The VA examiner noted there was no indication in the medical records from the November 2014 hospitalization that the Veteran's fall was caused by his service connected left shoulder condition. Id. Similarly, the VA examiner noted that in 2015, a medical note stated the Veteran reported he injured his leg while jumping on a trampoline, and did not indicate that the injury was due to the left shoulder condition. Id. The VA examiner noted that the Veteran reported that his left shoulder gave out while doing a back handspring that caused him to
0 VA medical opinion. As rationale, the VA examiner noted the Veteran's report that his shoulder gave out in 2014 that led to his left leg fracture. Id. The VA examiner noted there was no indication in the medical records from the November 2014 hospitalization that the Veteran's fall was caused by his service connected left shoulder condition. Id. Similarly, the VA examiner noted that in 2015, a medical note stated the Veteran reported he injured his leg while jumping on a trampoline, and did not indicate that the injury was due to the left shoulder condition. Id. The VA examiner noted that the Veteran reported that his left shoulder gave out while doing a back handspring that caused him to break his leg in 2017; however, this was the first reference to the left shoulder condition causing his leg injury. Id. The VA examiner noted the Veteran contradicted his statement that his shoulder dislocated midair. Id. The VA examiner noted there was no documentation in the medical record that the Veteran's fall on the trampoline aggravated his left shoulder condition. Id. The VA examiner concluded that given the lack of documentation of any causal nexus between the Veteran's left shoulder condition at the time of his medical treatment in 2014, his statements to his primary care provider in 2015, and his contradictory contentions regarding the role his left shoulder played in caused the left leg injury, it was less likely than not that his service connected left shoulder tendonitis caused his left leg injury. Id. However, the VA examiner did not address whether the Veteran's left shoulder disability aggravated his left leg injury. Additionally, the Veteran reported his left shoulder gave out while performing a back handspring that caused the break in his leg in March 2017. See March 2017 VA treatment records. In December 2019, the Veteran reported his left shoulder gave out, causing him to land in an awkward way leading to an open fracture of the tibia and fibula in 2014. See December 2019 VA treatment records. The VA examiner did not address the March 2017 or December 2019 VA treatment records. Therefore, the Board finds the September 2020 VA medical opinion inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 302 (2008); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that medical opinions addressing the issue of secondary service connection are inadequate when they fail to adequately encompass the question of aggravation); Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018) (holding that aggravation of a condition by a service connected disability must be considered independently of direct causation, and medical examinations must provide adequate reasoning and conclusions on both points).

Given the conflicting evidence, it is not undebatable as to whether the Veteran's status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle is secondary to his service connected left shoulder disability. As noted, the Board finds the September 2020 VA medical opinion inadequate for decision making purposes as the VA examiner failed to provide a clear aggravation medical opinion and did not address all of the Veteran's VA treatment records. While the Board acknowledges some flaws in the original March 2018 VA medical opinion, whether the flaws render the medical opinion inadequate for rating purposes is a question for adjudication. Such disagreements of weight cannot be the basis of CUE. See Baldwin v. West, 13 Vet. App. 1, 5 (1990); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Further, even if the original opinions were inadequate, that cannot form a basis for CUE severance. Stated inversely, if the claim were originally denied based on inadequate examinations, a duty to assist error cannot form the basis for CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003).

Accordingly, it cannot be said that the evidence clearly and unmistakably demonstrates that the Veteran's status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle is not secondary to his service connected shoulder disability. Under these circumstances, the Board finds that the burden of proof required for severance of service connection under 38 C.F.R. § 3.105(d) is not met; that severance of service connection was improper; and restoration of service connection for status post left anterior lower
form the basis for CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003).

Accordingly, it cannot be said that the evidence clearly and unmistakably demonstrates that the Veteran's status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle is not secondary to his service connected shoulder disability. Under these circumstances, the Board finds that the burden of proof required for severance of service connection under 38 C.F.R. § 3.105(d) is not met; that severance of service connection was improper; and restoration of service connection for status post left anterior lower leg fracture with left tibialis anterior muscle hernia and extensor digitorum longus muscle is warranted.

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Moore, Carlin

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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