Citation Nr: 18132360
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-30 999
DATE:	September 6, 2018
ORDER
Entitlement to service connection for traumatic brain injury (TBI) is denied.
Entitlement to service connection for brain aneurysm is denied.
Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) is denied.
The claim of clear and unmistakable error (CUE) in an Aug 1954 Department of Veterans Affairs Regional Office (RO) decision reducing the rating for a service-connected cervical spine disability from 40 to 20 percent is denied.
The claim of CUE in an July 1962 RO decision reducing the rating for a service-connected cervical spine disability from 20 to zero percent is denied.
REMANDED
The claim of entitlement to service connection for a shoulder disability including as secondary to service-connected cervical spine disability is remanded.
The claim of entitlement to a higher rating than the 10 percent assigned for cervical spine disability is remanded.
The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1. The preponderance of competent and credible evidence of record is against the Veteran having suffered from traumatic brain injury (TBI) with any resulting residuals of that injury during the claim period.  
2. The preponderance of competent and credible evidence of record is against the Veteran having developed a brain aneurysm in service or a brain aneurysm otherwise being causally related to service, including related to a head injury in service.  
3. The preponderance of competent and credible evidence of record is against the Veteran having a psychiatric disorder which developed in service or is otherwise causally related to service, other than the Veteran’s already service-connected sleep/wake disorder.  
4. The preponderance of the evidence is against the Veteran having PTSD related to service.  
5. Neither the Veteran nor his authorized representative has identified any specific error of law or fact in an August 1954 Department of Veterans Affairs Regional Office (RO) decision reducing the rating for a service-connected cervical spine disability from 40 to 20 percent, that compels a conclusion, about which reasonable minds could not differ, that the result would have been manifestly different but for such error.  
6. Neither the Veteran nor his authorized representative has identified any specific error of law or fact in an July 1962 RO decision reducing the rating for a service-connected cervical spine disability from 20 to zero percent, that compels a conclusion, about which reasonable minds could not differ, that the result would have been manifestly different but for such error.  
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for traumatic brain injury (TBI) have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
2. The criteria entitlement to service connection for brain aneurysm have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303 (2017).
3. The criteria for entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (2017).
4. The August 1954 decision which reduced the disability rating for service-connected cervical spine disability from 40 percent to 20 percent was not the product of CUE.  38 U.S.C. § 1155, 5109A, 7105 (2012); 38 C.F.R. § 3.172(a) (1953); 38 C.F.R. § 3.105(a) (2017).
5. The July 1962 decision which reduced the disability rating for service-connected cervical spine disability from 20 to zero percent was not the product of CUE.  38 U.S.C. § 1155, 5109A, 7105 (2012); 38 C.F.R. § 3.344 (1961); 38 C.F.R. § 3.105(a) (2107). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1944 to June 1946. 
The Board in May 2015 remanded several of the issues for additional development.  
Service Connection
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Service connection may also be granted through the application of statutory presumptions for chronic conditions.  See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. § 1101 (3) (2012).  First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service and there is evidence that the claimant's symptoms have continued after discharge.  38 C.F.R. § 3.303 (b).  In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service.  38 U.S.C. §§ 1112 (a)(1), 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2017).  If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  38 C.F.R. § 3.303 (b).  The application of these presumptions satisfies the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted.
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”).
Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.303(a).
1. – 2. Claims of entitlement to service connection for traumatic brain injury (TBI) and for a brain aneurysm.
As noted in his May 2017 VA Form 9, the Veteran reported that he sustained a severe fall while in service aboard ship in World War II, with the fall so severe that the ship had to return to port for him to receive treatment.  However, his self-reported history of this fall has been inconsistent and there is no service record of the incident or of any medical care received directly following a fall.  The Veteran is service-connected for a cervical spine disability attributed to a neck injury potentially sustained in a fall in service, but documented treatment or evaluation in years proximate to service do not reflect any significant injury to the Veteran’s head.  
Upon VA examination in November 2015 the Veteran provided a history of having fallen down a 15-foot ship’s ladder and striking the base of his skull, resulting in his being rendered unconscious for a few seconds.  
This may be contrasted with the Veteran’s report upon a September 1948 VA examination, when the Veteran was complaining of shooting pain in the left arm and left scapular area as well as tingling and warmth in the right arm.  The Veteran then reported first noticing these symptoms following an incident in July 1945 when he had fainted and fallen to the deck of a destroyer after just previously falling off the bridge of the destroyer approximately nine feet. The Veteran reported at the September 1948 examination that his head had snapped back and struck the ladder.  Thus, this early account by the Veteran informs of one fall after another, not a single longer fall, without mention of any significant head injury.  
The Veteran reported to the September 1948 examiner that he had been hospitalized following the injury but that the symptoms had been overlooked during the hospitalization.  The Veteran then also reported a history of treatment for cervical issues following service separation.  The September 1948 examiner diagnosed a herniated nucleus pulposus between C4 and C5, based on x-ray findings, and assessed associated pain and vascular issues in the left upper extremity.  The medical record at that time reflected that the fainting was associated with an acute condition suspected as appendicitis, for which he was treated, and that loss of consciousness was the apparent cause of the fall (fainting) rather than its effect.  No complaints, findings, or diagnoses were made related to any effects of the Veteran’s head striking the ladder in the course of the fall or falls from a ladder or onto a deck in service.   
Additionally, at December 1961, July 2008, and July 2011 VA examinations addressing cervical disability, the Veteran reported falling aboard ship in service and injuring his neck, not mentioning head injury.  At the July 2011 VA examination, the Veteran provided a history that when he fell aboard ship in service he hit his neck on a metal object. At a January 2013 official examination to address hearing loss, the Veteran reported hitting his head in service with injury to his neck.  He also then reported suffering a concussion from a fall in the 1970’s.  
At the November 2015 examination the Veteran complained of mild memory loss as well as difficulties with attention, concentration, and executive functioning.  The Veteran’s wife also reported that the Veteran had mild memory loss in the past few years.  However, the examiner noted that such impairments were not objectively supported upon testing.  The examiner additionally noted that judgment was normal; social interaction was routinely appropriate; the Veteran was always oriented to person, place, time, and situation; motor activity was normal; visual-spatial orientation was normal; there were no subjective symptoms; no neurobehavioral effects were found; the Veteran was able to communicate and understand both written and spoken language; and consciousness was normal.  The examiner found no subjective symptoms and no mental, physical, or neurological conditions or residuals attributable to a TBI. The examiner additionally noted that the Veteran had no associated scars or other pertinent physical findings.  The examiner further found no functional impacts, such as effects on ability to work, attributable to TBI.
The examiner observed the absence of any service record of the fall or of treatment for a head injury.  The examiner also noted that following service the Veteran held technical positions in the chemical industry from 1946 to the mid-1990s, which required mental focus and intellectual ability.  In short, the examiner found that the evidence, including from service and following service as well as current findings, did not support the presence of TBI.  
The VA examiner also addressed the Veteran’s claimed intracranial aneurysm, opining that it was not at least as likely as not that the Veteran’s reported fall in service had caused his intracranial aneurysm, explaining that there was no support in the “mainstream neurological literature” for a fall such as the Veteran reported experiencing in service causing an intracranial aneurysm.  In a November 2016 addendum, the examiner provided the additional rationale that his conclusion that the Veteran did not have TBI with headaches related to service was supported by the Veteran’s post-service work from 1946 to the mid-1990s; the absence of physical or psychological signs or symptoms indicating TBI; and, per the Veteran’s wife’s report, the Veteran’s cognitive impairment not having begun until eight years ago when the Veteran was in his 80s.  
The Veteran’s representative in a July 2018 appellate brief takes issue with this rationale, objecting that no specific studies were cited.  However, necessarily, if there are not medical studies to support a link between an injury such as the Veteran sustained in service and an intracranial aneurysm years later, there would be no studies to cite to support such a link.  The Board rather accepts the VA examiner’s opinion as supported by the evidence specific to the Veteran’s case, the examiner’s medical knowledge, and the absence of medical literature supporting the contrary conclusion that an injury such as the Veteran described experiencing in service may cause an intracranial aneurysm years later.
The Board finds that the historical record and the examination report in November 2015 and November 2016 addendum are consistent in supporting an absence of effects of any head injury the Veteran may have suffered in service.  The Board also find’s the examiner’s conclusions regarding absence of a causal link between injury in service and a brain aneurysm to be well-supported by the record including by the absence of any indication of such an effect from a head injury in service.  
While the Board does not doubt the sincerity of the Veteran’s belief that he suffers from TBI and a brain aneurysm as a result of head injury in service, such questions of medical etiology of claimed conditions decades after a head injury are beyond the ambit of lay knowledge, and hence the Veteran is not competent to address these questions.  The Veteran’s opinions of service etiology are therefore not competent evidence to support the claim.  See Jandreau v. Nicholson, 492 F.3d at 1376-77.
The Board finds the preponderance of competent and credible evidence to be consistent with the November 2015 examiner’s findings and conclusions, and hence against the Veteran’s claims for service connection for TBI and a brain aneurysm.  In reaching these conclusions, the Board also considers the doctrine of reasonable doubt.  38 U.S.C. § 5107 (b).  However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
3. Claim of entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD).
The Veteran has been service connected for an unspecified sleep/wake disorder, which was previously diagnosed as parasomnia but which upon more recent examination was recharacterized.  The Veteran claims service connection for other psychiatric disorder to include PTSD.
Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The Board notes that during the pendency of the Veteran's appeal, the VA amended the applicable regulations to transition to the use of the DSM-5.  See 80 Fed. Reg. 14308 (March 19, 2015).  If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304 (f) (2017).  Further, 38 C.F.R. § 3.304 (f) provides that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.
The Veteran was previously afforded a VA psychiatric examination in June 2013 and that examiner found that the Veteran did not suffer from any psychiatric disorder.  However, the Veteran’s representative objected to the examiner who conducted the examination, and on such basis the Board in a May 2015 remand accommodated the Veteran and his representative by requiring a new VA psychiatric examination by a different examiner.  That new examination was conducted in September 2015.  
At the September 2015 examination the Veteran claimed to suffer from PTSD related to his World War II service.  The examiner noted that the Veteran was currently remarried, that he had a self-reported “pretty good” relationship with his wife.  The Veteran also informed that “being commander of the VFW I stay busy.”  He reported going to the VFW every day and spending time with older Veterans, listening to them.  He related that some of these older veterans were quite depressed, but he did not assert that he also currently suffered from depression or other daytime symptoms related to service.  He did report that when he was let go from his last employer without the opportunity to attain a good retirement that depressed him, but that was 14 years ago and he did not report that he suffered from ongoing depression.  He did inform that besides spending time with the VFW he also still liked to work on electronics repair, work he had done prior to his ceasing work at his last employment.  He additionally reported spending time at home with his wife, including when she returned home from her dialysis treatments.  
In short, the Veteran at the September 2015 examination reported remaining active in multiple capacities and still engaging in social and occupational activities at home and at the VFW on a daily basis without indication that psychological dysfunction resulted in any impairment in those activities.  
The September 2015 examiner noted that the Veteran was on a destroyer in World War II, and that after his retirement he worked for five different chemical companies as a contract engineer until his retirement at the age of 74.  The Veteran denied any history of occupational impairments associated with psychological symptoms.  The examiner reviewed the Veteran’s June 2013 VA examination report and its account of the Veteran’s self-report symptoms, consisting of recurring dreams which the Veteran characterized as nightmares, including falling in a hole in water, and dreams of being trapped.  The Veteran reported getting out of bed when he had bad dreams.  However, the examiner noted that these dreams were not re-experiencing of events and they were not based on past experiences.  The examiner further noted that there was “no discernable relationship” between these dreams and any past trauma.  Further, the dreams were “mostly gone” when the Veteran awoke.  The Veteran reported only one incident in service when he remembered being scared, when a torpedo passed underneath his ship.  The Veteran denied crying spells or suicidal ideation.  He reported that he gets depressed when he doesn’t feel useful, though this was not a persistent problem.  The Veteran also denied persistent irritability.  He had some age-related cognitive concerns.  
Reviewed VA treatment records reflect that the Veteran was seen beginning from June 2015 after screening positive for PTSD with complaints of anxiety, nightmares, and insomnia.  The September 2015 examiner noted that while the Veteran had been assigned a diagnosis of anxiety disorder in these VA treatment records, findings at the time were “not clearly supporting an anxiety related diagnosis,” with the indicated current issues consisting of sleep problems with middle awakening nearly every night and feeling depressed when he did not keep busy.  However, a VA June 2015 medication management note and a June 2015 treatment evaluation reflect the Veteran’s self-report of lately feeling a lot of anxiety.  At the June 2015 VA treatment evaluation, the Veteran reportedly also endorsed a history of nightmares and flashbacks from World War II.  
The September 2015 examiner noted that the endorsed history of flashbacks as reported at the June 2015 treatment evaluation was inconsistent with the Veteran’s self-reported history at his June 2013 examination and at other treatment visits.  While VA telemedicine records were noted to reflect a prescription of Paxil for symptoms of depression and nightmares one time weekly, the Veteran ceased taking this prescription on his own.  The Veteran reported having nightmares approximately once per week, whereupon he would wake up and have to urinate, and then might go back to bed.  He related getting approximately six hours of sleep nightly.  
The Veteran also reported a history of breaking his nose on one occasion due boxing, when he was also still working.  He reported developing anxiety related to difficulty breathing as a result of the broken nose, and being prescribed Valium to help with his breathing.  He did not report that this was an ongoing issue.  The Veteran related that in the past he had sometimes awoken with ‘bad thoughts about doing away with myself.’  However, he reported that staying busy with the VFW helps him.  
The Veteran recounted to the examiner multiple combat-related experiences in service which the examiner found to qualify as stressors potentially supporting a diagnosis of PTSD.   However, other than sleep impairment the examiner did not find current psychiatric symptoms to support a diagnosis of PTSD or any other psychiatric disorder.  The examiner rather concluded that he Veteran did suffer from a sleep/wake disorder which was attributable to his verified combat service in World War II.  The Veteran is already service connected for this sleep/wake disorder.  The examiner found that due to the absence of evidence of significant functional impact, the Veteran’s sleep/wake disorder could not be diagnosed as a nightmare disorder.  
The examiner found that while the Veteran had a mental condition, the symptoms were not severe enough to interfere with either social or occupational functioning.  At the June 2015 psychiatric consultation/ evaluation the Veteran also expressed concerns about finances related to his spouse’s gambling issues.  The consulting psychiatrist diagnosed an anxiety disorder manifested by anxiety or agitation.  
The Board notes that notwithstanding the past objections of the Veteran’s representative to the June 2013 VA examiner, the findings and conclusions of the September 2015 examiner are reasonably consistent with those of the June 2013 examiner.  Both examiners did not find the Veteran to meet the diagnostic criteria for a diagnosis of PTSD, a depressive disorder, an anxiety disorder, or any psychosis.  The balance of the record including the records of the Veteran’s limited recent psychiatric treatments are also consistent with these findings and conclusions, with no confirmed diagnosis of PTSD or other psychiatric disorder other than the now characterized sleep/wake disorder.  
While the June 2015 psychiatric consultation/ evaluation appears to support an anxiety disorder at that time, the record does not reflect the presence of an anxiety disorder at other times during the claim period.  The Veteran’s concerns about finances at the time are noted as contributing to his anxiety.  The anxiety as present at the time is not indicated by any mental health professional to be related to service.  
While the Board does not doubt the sincerity of the Veteran’s belief that he suffers from PTSD or other psychiatric disability – in addition to his sleep/wake disorder – related to his World War II service, the Veteran, as a layperson, is not competent to provide diagnoses of psychiatric disorders, which require specialized training and expertise to diagnose.  Jandreau v. Nicholson, 492 F.3d at 1376-77.  While the Veteran reported to the September 2015 examiner that he had attended some college and had taken a few courses in psychology, this is neither sufficient training nor sufficient expertise for this purpose.  
The Board concludes that the weight of competent, credible evidence is consistent with the findings and conclusions of the June 2013 and September 2015 examinations, to the effect that the Veteran does not have a psychiatric disorder which is causally related to service other than his already service-connected sleep/wake disorder.  In the absence of a causal link between a psychiatric disorder during the claim period and the Veteran’s service, the claim for service connection for PTSD or other psychiatric disorder cannot be sustained.  38 C.F.R. § 3.303.  
In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C. § 5107 (b).  However, as the preponderance of the evidence is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361; Gilbert v. Derwinski, 1 Vet. App. 49.
Reduction Issues Based on CUE
4. – 5. Claims of clear and unmistakable error (CUE) in an August 1954 RO decision reducing the disability rating for a service-connected cervical spine disability from 40 to 20 percent, and CUE in a July 1962 RO decision reducing the disability rating for the same service-connected cervical spine disability from 20 to zero percent.  
The Veteran’s CUE claims are based on reductions from a 40 percent rating initially assigned by a September 1948 rating decision for a herniated nucleus pulposus between C4 and C5 with resulted severe pain and vascular disturbance in the left upper extremity, as found upon medical examinations in September 1946 and September 1948.  The first contested reduction was by an August 1954 RO decision reducing the rating to 20 percent effective October 20, 1954.  The second was by a July 1962 decision reducing the rating from 20 to zero percent effective October 1, 1962.
The Veteran, through his representative, has contended that the law as applicable at the time to ratings in effect for five years were not correctly applied in each of these instances, thus resulting in CUE.   The representative provides arguments to support the CUE claims in a May 2018 written Informal Hearing Presentation before the Board, as well as in prior submissions.  
In order for there to be a valid claim of ‘clear and unmistakable error,’ there must have been an error in the prior adjudication of the claim.  Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.  The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.  Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). 
CUE is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error.  Generally, a finding of CUE requires that the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14).  A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE.  Luallen v. Brown, 8 Vet. App. 92, 95 (1995).  A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication.  Baldwin v. West, 13 Vet. App. 1(1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).
The Board notes that before the 1990 effective date of what is now 38 U.S.C. § 5104(b), AOJs were not required to set forth in detail the factual bases for their decisions. Recognizing this, the Federal Circuit has explained that, in the absence of evidence to the contrary, the AOJ is presumed to have made the requisite findings.  See Natali v. Principi, 375 F.3d 1375, 1380-81 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d 1348, 1355-56. In determining whether CUE exists in such a case, the Board must examine the evidence of record; assume that the VA Regional Office (RO) was aware of and duly considered extant law; and form a conclusion as to whether the AOJ decision was supportable in light of the evidence and law that then existed.  Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005).  Silence in a final RO decision made before 1990 cannot be taken as showing a failure to consider evidence of record.  Eddy v. Brown, 9 Vet. App. 52, 58 (1996). 
Regard the August 1954 reduction decision, the representative contends that the RO “clearly erred” by not indicating that they had reviewed the medical-industrial history and medical examinations, since such review was required by 38 C.F.R. § 3.172(a), as then applicable.  The representative further argued that the RO committed error by failing to indicate that they had considered what evidence showed that it was reasonably certain that the improvements in the disability would be permanent and could be maintained under ordinary conditions of life.  Last, the representative argued that the RO committed CUE by relying on an examination which was less full and complete than the examination upon which the initial rating was based.
However, the relevant language in 38 C.F.R. § 3.172 (a), as applicable at the time of the August 1954 reduction decision, was as follows:
[I]t is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete [....]
Examinations less full and complete than those on which payments were authorized or continued, will not be used as the basis of reduction [....]
[T]he rating agency will consider whether the evidence makes it reasonably certain that the improvement will be permanent and can be maintained under the ordinary conditions of life, i.e., while employed, or, if unemployed, while actively seeking employment.
The RO was thus required to consider whether the evidence supported reasonable certainty that improvement that would be permanent and maintained in such circumstances as employment.  The Board finds no evidence that they failed to do so.  The RO may very well have considered the issues of permanence and ordinary conditions of life without explicitly stating, since, as the Federal Circuit recognized in Natali, the RO was not at that time in the habit of spelling out such explanations.  Natali v. Principi, 375 F.3d at 1380-81.  Hence, whether these issues were considered is certainly debatable, and the Federal Circuit has recognized that it should be presumed that they were considered.  Id.  The representative’s argument that the RO “clearly erred” by not spelling out such consideration is thus misplaced.  
The representative also then contends, in effect, that permanence in improvement was not found to support the August 1954 reduction.  However, the regulation only required that it be “reasonably certain” that the improvements would be permanent, with no requirement of a guarantee.  This finding of reasonable certainty of permanence as implied to support the reduction, is thus a question about which reasonable minds could differ, and cannot support the Veteran’s CUE claim with regard to the August 1954 reduction.  
The representative additionally argued that if the improvements were believed to be permanent, then why would a further examination have been scheduled only two years later.  Such argument to support failure to consider permanence of improvement is erroneous for two reasons.  First, a subsequent decision to re-examine is no reflection of the nature of the prior decision.  The adjudicating agency is neither omniscient nor of a single mind, and may be expected to change course in a case over time, and this reflects no clear error in a decision.  Second, the permanence of an improvement may still require additional evaluation if it is believed that still further improvement may occur.  Indeed, in this case the second decision in the subject of appealed CUE claim, in July 1962, did find further improvement warranting further reduction in rating.  
The representative has argued that it was CUE for the RO in August 1954 to rely on a July 1954 VA examination for a reduction when the examination was not as thorough as the prior VA examination in September 1948 which supported the initial 40 percent rating.  The representative specifically contended that because indications of vascular issues in the left upper extremity associated with the cervical spine disability were noted in the September 1948 examination but were not addressed in the August 1954 examination, the second examination was not as thorough.  The Board does not find this to be clearly a case of less thoroughness, since the second examination did address the extent of functional impairment found in both the cervical spine and the left upper extremity.  Absence of associated impairment in the left upper extremity does not clearly indicate a less thorough examination simply because impairments not shown are not listed individually.  Arguably, a statement of “no impairment” in the left upper extremity provides greater thoroughness than findings of one or two impairments, since “no impairment” implies absence of numerous impairments, not merely absence of one or two.  Thus, reasonable minds could differ as to whether a more thorough examination were required to support the reduction.  A disagreement with how VA evaluated the facts is inadequate to find clear and unmistakable error. Luallen v. Brown, 8 Vet. App. at 95.  
“[A] failure to apply, or apply correctly, an applicable law or regulation in the decision being collaterally attacked must be shown undebatably.” Joyce v. Nicholson, 19 Vet. App. 36, 50 (2005).  Here it has not been shown undebatably that the RO in its August 1954 decision failed to apply or failed to apply correctly 38 C.F.R. § 3.172, which asserted failures are the bases raised for CUE in that decision.  Hence, the Board finds no clear and unmistakable error in the August 1954 rating reduction in the application of 38 C.F.R. § 3.172, as is alleged.  Reasonable minds could differ.  The claim of CUE in that decision must therefore be denied.  
It is additionally far from clear that had the RO sought clarification or additional findings from the July 1954 examination prior to reducing the rating, the rating would not have been reduced.  Such a need to ask the examiner for clarification with regard to negative findings not explicitly addressed (e.g., absence of circulatory symptoms in the left upper extremity) does not clearly indicate a manifestly different outcome would have occurred, and hence such a clarification deficiency cannot be the basis for CUE.  King v. Shinseki, 26 Vet. App. 433, 441 (2014).
Similarly, the representative has argued in a February 2018 VA Form 9 that the July 1962 reduction was not conducted following certain “safeguards” within 38 C.F.R. § 3.344, which superseded but did not significantly alter the incorporated language from 38 C.F.R. § 3.172, which were to prevent inappropriate reduction.  The representative in that Form 9 as well as by arguments made in January 2018 and in the May 2018 Informal Hearing Presentation, contended that the RO failed to comply with the requirements of 38 C.F.R. § 3.344 when making the rating reduction. The representative in January 2018 specifically contended that the RO failed to fulfill all four primary requirements of 38 C.F.R. § 3.344:  1) that the disability be reviewed in relation to its history, 2) that there be a comparison between current and past examination to assure that the current examination on which the reduction was to be based was at least as thorough as the prior examination supporting the prior rating, 3) that the RO determine that there was a “material improvement” in the disability, and 4) that the RO determine whether the improvement would be permanent and would be continued under the ordinary conditions of life, such as employment.  
The Board has already discussed the fourth element with regard to the August 1954 decision, and neither the relevant regulatory language with enactment of 38 C.F.R. § 3.344, nor the Board’s analysis with regard to the RO’s adjudicative action changes materially for the July 1962 decision.  The Veteran’s representative in the February 2018 VA Form 9 has contended that the record presents contrary evidence and hence the presumption that the RO made the requisite factual findings should not apply.  The representative first argues that the RO erred by not making a determination that the any improvements to support the rating reduction were permanent and would be maintained under the ordinary conditions of life.  The new regulation still required only that the RO consider whether the evidence makes it reasonably certain that the improvement is permanent and is maintained under ordinary conditions of life, and the RO was still not required to make explicit such consideration.  Natali v. Principi, 375 F.3d at 1380-81.  Hence, the RO did not clearly err by not explicitly stating its consideration of whether there was reasonable certainty of improvement or maintenance of improvement under ordinary conditions of life, such as work.  This is the case regardless of the presence or absence of contrary evidence.  
Similarly, it is not clearly the case that the other three requirements under 38 C.F.R. § 3.344 were not followed, since each involves factual bases for the decision, which factual bases the RO was not required to spell out and which factual bases the RO is to be presumed to have considered, in the absence of evidence to the contrary.  Id.  The Board does not find clear evidence to the contrary, and hence there is not clear and unmistakable error in the July 1962 decision, and reversal of the reduction on the basis of CUE is not warranted.  
REASONS FOR REMAND
1. – 2. Claims for increased rating for cervical spine disability and for service connection for a shoulder disability including as secondary to service-connected cervical disability are remanded.
At a June 2013 hearing before a Decision Review Officer (DRO), regarding his cervical disability, the Veteran testified that he would have pain the day following if he lifted something, and that he would have extreme pain “if I try to walk very far.” (Hearing transcript, page 4.)  His doctors told him not to lift things and to do what he was doing to prevent neck pain.  He informed that the injury he suffered to his neck in post-service employment was re-injury of the same neck disability from service.  He reported still using a neck brace, though he did not specify a frequency use.  
At his March 2015 hearing before the undersigned, the Veteran’s left upper extremity 20 percent rating for radiculopathy and the cervical spine 10 percent rating were noted.  The Veteran testified that his cervical pain mostly extended into the left upper extremity, and that when this pain was bad he would have difficulty with use, such as drinking a cup of coffee.  The Veteran also informed of pain the following day if he tried to lift things, such as if he took out the trash and lifted it to put it in the trash can.  He described how holding his arms playing cards would cause pain, or if his neck snapped he would experience pain.  He further described how he would then sleep propped with pillows or wear a neck brace to help ease the pain.  He added that he had been using a neck brace since the 1940s, and had used three different braces since that time.  The Veteran then testified that when he experiences an incapacitating episode it sometimes lasts a couple of hours and sometimes lasts all day.  
Also at the hearing, the Veteran described having carried his tools for ten years following service, but that he then had a fall and re-injured his neck, so that his neck pain returned.  He described the pain since the second injury as being a deeper pain, extending down the arm, and also causing him to be “kind of sick too.” (Hearing Transcript, pages 10-11.)  Regarding avoiding activities which exacerbated his neck, the representative noted that the Veteran no longer drove because he couldn’t turn his neck.  
Regarding physical work, the Veteran noted that he had worked with tools for about 10 years, but then he became a foreman and he no longer worked with tools or did physical labor.  The Veteran expressed that he did not know whether he would be able to work, or if pain would prevent him from showing up every day.  
The Veteran was afforded a VA examination in November 2015.  The examiner noted the Veteran’s history of herniated cervical disc diagnosed in 1948, as well as degenerative arthritis of the cervical spine with unknown date of diagnosis.  At the examination the Veteran denied right arm radicular pain but reported onset of right shoulder arthritic pain with movement approximately eight years ago.  The Veteran also reported left arm pain with turning or leaning his head to the left.  He was noted to be right-hand dominant.  
The November 2015 examination found moderate, usually dull, intermittent left upper extremity radicular pain, and assessed mild left C5/C6 nerve root involvement.  The examiner assessed cervical intervertebral disc syndrome but found no acute episodes of intervertebral disc syndrome to have occurred in the past year which required prescribed bed rest.  The Veteran was noted to have a neck brace which he only used when his back started bothering him.  The examiner concluded that the Veteran’s cervical spine disability did not impact his ability to work, explaining that the Veteran had worked in the chemical industry following service until his retirement in the early 1990s.  
Regrettably, the Board has two difficulties with the November 2015 examination.  First, the examiner found no flare-ups and concluded that there was no impact on work functioning, which is inconsistent with the Veteran’s self-report that he has episodes of incapacitation following activities such as lifting or walking too far.  It appears clear from the Veteran’s testimony regarding such episodes and his strategies to limit pain during these episodes that he does have recurring flare-ups precipitated by common activities.  Further, these flare-ups and the avoidance of activities that cause them clearly do constitute impairments which would limit work or work-like activities.  The fact that the Veteran is no longer working due to his advanced age and retired status is not of consequence when considering the impact of the service-connected disability on functioning.  
Hence, a further examination is required to address the severity of the cervical spine disability including during flare-ups, and resulting impact on work or work-like functioning.  
3. Claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
The claim for TDIU is inextricably intertwined with the cervical spine disability claim, and hence must also be remanded.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 
The matters are REMANDED for the following action:
1. Associate any outstanding records.
2. Notify the Veteran and his authorized representative that he may submit lay or medical statements or other evidence supporting his claims.  This may include evidence supporting greater severity of his service-connected cervical spine disability, or medical evidence supporting a link, based on causation or aggravation (permanent increase in severity) between a shoulder disability and the Veteran’s service-connected cervical intervertebral disc syndrome and left upper extremity radiculopathy.  The Veteran should be provided an appropriate amount of time to submit this evidence. 
3. Provide the Veteran a VA examination to determine the nature and severity of his service-connected cervical spine disability, inclusive of intervertebral disc syndrome, as well as whether a left or right shoulder disability has been caused or aggravated by the Veteran’s service-connected cervical spine disability and left upper extremity radiculopathy.  The examiner should be advised that a new examination is required because the prior examination in November 2015 failed to address the severity of cervical spine disability during flare-ups, and failed to address the likelihood that the Veteran’s cervical intervertebral disc syndrome, as opposed to cervical spine arthritis, caused or aggravated claimed shoulder disabilities.  
The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  Thus, the examiner should address flare-ups including those reported by the Veteran to frequently occur the day following his performing lifting activities or engaging in excess walking.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s cervical spine disability alone and discuss the effect of the Veteran’s cervical spine disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
For each disability of each shoulder identified, the examiner should provide an opinion whether it is at least as likely as not that the Veteran’s service-connected cervical intervertebral disc syndrome or his service-connected left upper extremity radiculopathy caused or aggravated (increased in severity beyond its natural progression) that shoulder disability.  
The examiner should provide an explanation for all elements of his/her opinions.
 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Schechter 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.