ULNAR NERVE PARALYSIS

C.A. SKOW · 2026 · Case ID: A26039001

MIXED

Summary

The Veteran, an Army Veteran who served from January 1966 to January 1969, appeals a decision to sever service connection for right arm radiculopathy. The Board found that the severance was improper because the Agency of Original Jurisdiction (AOJ) made the severance effective retroactively to the initial grant date without evidence of fraud, failing to adhere to procedural safeguards outlined in 38 C.F.R. § 3.105(d). The Board noted that while the AOJ proposed severance due to clear and unmistakable error (CUE), the retroactive application was procedurally flawed. The Board has not ruled on the merits of the severance itself, only the procedural impropriety. The case also involves appeals for an increased rating for Raynaud's Phenomena of the right upper extremity and entitlement to Total Disability based on Individual Unemployability (TDIU). These claims were remanded due to duty to assist errors, specifically the failure to obtain relevant outstanding treatment records from Dr. Edgar A. Martorell and Advent Health, and the failure to associate scanned non-VA records into the claims file prior to the rating decisions. The Board emphasized that the duty to assist includes obtaining private medical records when reasonably identified and relevant.

Rationale

Severance was retroactive to initial grant date without fraud; AOJ failed to follow procedural safeguards under 38 C.F.R. § 3.105(d); Board did not rule on merits of severance, only procedural failure

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

260306-635971

Full Decision Text

Citation Nr: A26039001
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 260306-635971
DATE: April 27, 2026

ORDER

The severance of service connection for right arm radiculopathy was not proper; the appeal is granted.

REMANDED

Entitlement to an initial rating in excess of 40 percent for Raynaud's Phenomena of the right upper extremity, is remanded.

Entitlement to total disability due to individual unemployability (TDIU) based on service-connected disabilities is remanded.

FINDING OF FACT

The severance of service connection for right arm radiculopathy was retroactive to the date of initial grant, July 18, 2023; as there is no evidence of fraud on the part of the Veteran, the AOJ did not follow the proper procedure for the severance.

CONCLUSION OF LAW

The severance of service connection for right arm radiculopathy effective July 18, 2023, was not proper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from January 1966 to January 1969.

The rating decisions on appeal were issued in May 2025, August 2025, and October 2025 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the March 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. The Veteran has waived his right to select another review option (docket switch). See VA Form 10182 (March 2026); see also Williams v. McDonough, 37 Vet. App. 305 (2024); 38 C.F.R. § 20.202(c)(2). Therefore, the Board may only consider the evidence of record at the time of respective May 2025, August 2025, and October 2025 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of a higher initial rating for Raynaud's Phenomena of the right upper extremity and entitlement to a TDIU rating, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Severance of Service Connection

Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (the burden being on the Government), and only after certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997).

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).

Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law. Stallworth, 20 Vet. App
for 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).

Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law. Stallworth, 20 Vet. App. 482, 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991).

A clear and unmistakable error is a very specific and 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. 38 C.F.R. § 3.105(a)(1)(i). If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 3.105(a)(1)(i). Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied. 38 C.F.R. § 3.105(a)(1)(i).

There is a three-part test to determine whether a prior decision was based on CUE: (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 made on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

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, 1 Vet. App. 563, 566. 38 C.F.R. § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as 38 C.F.R. § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. 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 38 U.S.C. § 5109A or 38 C.F.R. § 7111. Stallworth, 20 Vet. App. at 488.

A decision that is reversed or amended on the basis of 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 v. Nicholson, 21 Vet. App. 54 (2007).

In addition, when fraud is found to have formed the basis for an award of service-connected benefits, regardless of the length of time a claimant has been in receipt of those benefits, severance of the award can be made upon a showing of fraud alone. Roberts v. Shinseki, 23 Vet. App. 416, 428-29 (2010).

Fraud is defined in VA regulations as an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining VA benefits, with
conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen v. Nicholson, 21 Vet. App. 54 (2007).

Fraud is defined in VA regulations as an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. 38 U.S.C. § 501; 38 C.F.R. § 3.1(aa)(2).

The procedural protection provisions afforded under 38 C.F.R. § 3.105 do not apply where an award was based on an act or commission or omission of fraud by the payee, or with his or her knowledge. Roberts v. Shinseki, 23 Vet. App. 416, 426 (2010).

Whether severance of service connection for right arm radiculopathy was proper.

An October 2025 rating decision severed service connection for right arm radiculopathy, due to clear and unmistakable error, effective July 18, 2023. See Rating Decision (October 2025). This appeal arises from the Veteran's disagreement with that decision.

The Board concludes that, as the AOJ made the severance of service connection for right arm radiculopathy effective retroactively to the date of the initial grant without evidence of fraud by the Veteran, severance was not proper. 38 U.S.C.

§ 5112; 38 C.F.R. § 3.105.

In August 2023, the Veteran submitted a claim, in pertinent part, for entitlement to service connection for a neck and upper back disability, and service connection for right upper extremity radiculopathy, secondary to his right arm Raynaud's condition or his spine conditions. See VA 21-526EZ (August 2023).

A Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ) was obtained in November 2023. See C&P Exam (November 2023). The DBQ reflects that upon examination, the Veteran presented with signs and symptoms of right arm radiculopathy involving the C5 and C6 nerve roots. A corresponding November 2023 VA medical opinion reflects that the Veteran's right upper extremity radiculopathy was at least as likely as not due to his cervical sprain. See C&P Exam (November 2023). The opinion explained that "cervical radiculopathy is defined as a syndrome of pain and/or sensorimotor deficits due to compression of a cervical nerve root. Facet joint spondylosis and herniation of the intervertebral disc are the most common causes of nerve root compression."

A December 2023 rating decision granted service connection for right arm radiculopathy as related to the service-connected disability of Raynaud's Phenomena of the right upper extremity. See Rating Decision (December 2023).

In conjunction with an ongoing claim for entitlement to a TDIU rating, the AOJ obtained another VA examination in February 2025. See C&P Exam (April 2025). The Peripheral Nerves DBQ reflects that the Veteran did not have an upper extremity radiculopathy diagnosis, explaining that:

Raynaud's syndrome causes spasms in small blood vessels in your fingers and toes. This limits blood flow and leads to symptoms like skin color changes, cold skin and a pins and needles sensation. The numbness/tingling sensation of Veteran's R hand induced by exposure to cold temperature is caused by smaller blood vessels that supply blood to the skin narrow. This limits blood flow to affected areas, which is called vasospasm. Radiculopathy is a condition caused by a pinched nerve. Veteran symptoms is not due to pinched nerve but due to vasospasm. There is no objective evidence to [diagnosis] right arm radiculopathy.

A May 2025 rating decision and May 2025 letter notified the Veteran of a proposed severance of service connection for right arm radiculopathy. See Rating Decision (May 2025); Notification Letter (May 2025). This letter was sent to his latest address of record and furnished detailed reasons for the severance action; it explained that not only did the medical opinion of record attribute the Veteran's right upper extremity radiculopathy to his nonservice-connected cervical spine condition, the most current VA-obtained DBQ reflected that the Veteran's upper extremity symptomology was caused by Raynaud's Phenomena, and not radiculopathy. Therefore, service connection for right upper extremity radiculopathy should not have been established. The May 2025 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 Veteran was given 60 days for the presentation of additional evidence to show that benefits should be maintained.

The Veteran's representative responded in a June 2025 letter, arguing that the February 2025 DBQ findings that the Veteran did not have right upper extremity radiculopathy was not based on the evidence of record because in that same DBQ "the examiner 'opined that there was no change in the service-connected diagnosis and no additional diagnoses have been rendered.' See Third Party Correspondence (June 2025). Additionally, the February 2025 VA opinion was insufficient because it lacked a "summary of the facts, findings, and reasons supporting the conclusion."

The AOJ obtained another Peripheral Nerves DBQ in September 2025, which determined that the Veteran had a right cervical radiculopathy diagnosis. See C&P Exam (September 2025). A corresponding October 2025 VA-opinion determined that the Veteran's right upper extremity radiculopathy was due to his nonservice-connected cervical spine condition, and not Raynaud's Phenomena. See C&P Exam (October 2025). The opinion explained that the objective medical records attributed right arm radiculopathy to the Veteran's cervical spine condition. Further, the medical literature "confirms that cervical radiculopathy is a condition where one or more nerve roots in the neck (cervical spine) become compressed or irritated due to spinal abnormalities such as degenerative changes. This compression can cause pain, numbness, tingling, and weakness that radiates in the arms, hands, and shoulders," and "Raynaud's phenomenon is a condition that causes temporary discoloration and numbness in the fingers, toes, and sometimes other areas of the body to include ears, nose, lips, and nipples in response to cold temperatures or emotional stress."

VA then issued the final severance in October 2025, effective July 18, 2023, the date service connection was originally established, because that the evidence reflected that the decision to grant service connection was clearly and unmistakably erroneous. See Rating Decision (October 2025).

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 Board finds that it did not. Here, the AOJ appropriately proposed the rating decision, afforded the Veteran 30-days to request a Personal Hearing, and provided the Veteran 60-days to submit evidence. See Notification Letter (November 2022). However, the AOJ made the severance effective retroactive to the date of the initial grant of service connection for right upper extremity radiculopathy, July 18, 2023, instead of the last day of the month in which the 60-day period from the date of October 2025 decision expired. 38 C.F.R. § 3.105(d).

Although in very rare circumstances (issues of fraud), a retroactive severance is permitted, the evidence does not demonstrate that the Veteran committed fraud in obtaining entitlement to service connection for right upper extremity radiculopathy. Without evidence of fraud by the Veteran, the Board finds that the AOJ did not follow the appropriate procedures for severance.

Therefore, the Veteran's appeal is granted and restoration of service connection for right upper extremity radiculopathy is appropriate.

The Veteran is advised that this decision does not preclude the AOJ from severing service connection for right upper extremity radiculopathy in the future, if it is done appropriately. This decision was made based solely upon a failure by the AOJ to follow the proper procedure for severance. The Board has not considered nor addressed the merits of severance of service connection for right upper extremity radiculopathy.

REASONS FOR REMAND

1. Entitlement to an initial rating in excess of 40 percent for Raynaud's Phenomena of the right upper extremity, is remanded.

2. Entitlement to TDIU is remanded.

A September 2015 rating decision awarded service connection for Raynaud's Phenomena of the right upper extremity, and assigned a noncompensable rating from January 6, 2010. See Rating Decision (September 2015). A June 2016 rating decision increased the evaluation of this disability to 40 percent, effective April 7, 2016. See Rating Decision (June 2016). An August 2022 rating decision awarded an earlier effective date of January 6, 2010, for the 40 percent disability assignment. See Rating Decision (August 2022). This appeal arises from the Veteran's disagreement with the assigned evaluation. See VA Form 10182 (March 2026).

The issues of entitlement to an initial rating in excess of 40 percent for Raynaud's Phenomena of the right upper extremity and entitlement to TDIU are remanded to correct duty to assist errors that occurred prior to the rating decisions on appeal.

Generally, VA's duty to assist claimants includes obtaining records in the custody of a Federal department or agency and making reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. See 38 U.S.C. § 5103A(b); 38 C.F.R.

§ 3.159(c)(1), (2).

Here, prior to the decisions on appeal, relevant outstanding treatment records were reasonably identified. Specifically, an August 2019 VA treatment note reflects that the Veteran reported seeing Dr. Edgar A. Martorell in Davenport, Florida, for his Raynaud's Phenomena of the right upper extremity. See CAPRI at 833 (November 2024). The record does not include a copy of this treatment record although relevant to the claim for increase. The AOJ had a duty to request that the Veteran provide VA with a copy of the relevant outstanding treatment record or authorize release to VA prior to issuing the rating decision on appeal.

Moreover, the record indicates that the Veteran was receiving additional neurology care at VA expense, outside of VA facilities, through Community Care, and the corresponding records were scanned into VA's electronic health records system. Id. at 18, 470, 573, 627, 1761, 2013, 2025; CAPRI at 288, 414, 429 (March 2023); CAPRI at 64, 264 (November 2024). Non-VA treatment records from Advent Health in Daytona Beach, Florida were also scanned into VA's electronic health records system. See Id. at 549. However, copies of these scanned records were not associated with the claims file prior to issuing the decision on appeal although they are in constructive receipt of VA. Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Therefore, remand is necessary to obtain copies of these scanned non-VA records. See 38 U.S.C.

§ 5103A(b); 38 C.F.R. § 3.159(c)(1).

The Veteran's claim for TDIU is inextricably intertwined with the claim of entitlement to an initial rating in excess of 40 percent for Raynaud's Phenomena of the right upper extremity. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran contends he is unable to work because of his service-connected Reynaud's phenomena of the right upper extremity. The Board takes notice of the Veteran's contention that as a network systems architect, his right upper extremity disabilities interfered with his abilities to type on a computer keyboard and to manipulate a computer mouse with his dominant hand. See generally, e.g., VA Form 21-8940 (December 2022); Appellate Brief (December 2022); VA Form 10182 (October 2023). Thus, the error attaching to the claim for an increased rating extends to the claim of entitlement to a TDIU rating.

Therefore, remand is necessary to correct duty to assist errors on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the rating decision on appeal. See 38 C.F.R. § 20.802.

The Veteran is reminded that VA's duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential to establishing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). He is encouraged to cooperate in the development of his claims, to include authorizing release of all relevant treatment records.

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Edgar A. Martorell of Davenport, Florida, and for Advent Health in Daytona Beach, Florida. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile.

2. Associate copies of records scanned into VA's electronic health records system prior to the rating decisions on appeal with the claims file, to specifically include the December 2012, March 2013, April 2015, September 2017, January 2020, May 2020, June 2020, October 2020, November 2020, February 2021, August 2022, September 2022, December 2022, February 2024, and October 2024 Community Care records.

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T.F.

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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