Citation Nr: 1339720 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-03 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether the severance of service connection for status post intracerebral hemorrhage secondary to service-connected schizophrenia, effective June 30, 2009, was proper. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1951 to October 1952. The Veteran died on March [redacted], 2011. The appellant is his daughter. In an August 2011 decision, the RO determined that the appellant was eligible for substitution in the Veteran's claim. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which severed service connection for status post intracerebral hemorrhage, with right hemiparesis, effective June 30, 2009. FINDING OF FACT 1. In a January 2008 rating decision, the RO determined there was CUE in an August 2004 rating decision which failed to grant service connection for status post intracerebral hemorrhage. Service connection was established and a noncompensable evaluation was assigned. 2. In May 2008, the RO drafted a proposed rating decision granting a 100 percent rating for status post intracerebral hemorrhage as of September 10, 2003. 3. Prior to the effectuation of the May 2008 rating decision, the Veteran's claims file was subject to VA's extraordinary award procedure (EAP). 4. In the June 2008 EAP, the Director of Compensation & Pension (C&P) determined that the there was no clear and unmistakable error in the August 2004 RO decision which denied service connection and found clear and unmistakable error in the January 2008 RO decision awarding service connection. It was noted that the Director did not concur with the proposed May 2008 decision. 5. The EAP subsequent to the May 2008 rating decision was invalid. 6. The April 2009 rating decision which was pursuant to the June 2008 EAP is void. CONCLUSION OF LAW Service connection and compensation for status post intracerebral hemorrhage with right hemiparesis is restored. 38 U.S.C.A. § 706(2)(A) (West 2002); 38 C.F.R. § 3.103 (2009); Military Order of the Purple Heart of the USA v. Sec'y of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009); MacKlem v. Shinseki, 24 Vet. App. 63 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). However, this decision grants the full benefit sought on appeal, rendering all notice and assistance errors harmless and eliminating the possibility of prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009); 38 C.F.R. § 20.1102. Consequently, an analysis of whether VA has complied with the duty to notify and assist would serve no purpose. Procedural History The RO denied service connection for status post intracerebral hemorrhage in an August 2004 rating decision. Subsequently, in a January 2008 rating decision, the RO found clear and unmistakable error (CUE) with the August 2004 decision and established service connection for status post intracerebral hemorrhage with right hemiparesis, effective September 10, 2003, his original date of claim. See 38 C.F.R. § 3.156(b). A noncompensable rating was initially assigned. It was noted that a VA examination was necessary to determine the severity of the Veteran's condition. Thereafter, the Veteran underwent a VA examination in May 2008. Based on these findings, the RO proposed in a May 2008 draft rating decision that the Veteran be assigned a 100 percent disability rating retroactive to September 10, 2003. In a June 2008 memorandum to the Director of C&P, the RO indicated that the proposed action would result in a $284, 051 retroactive payment to the Veteran. In June 2008, the Director of C&P determined that the January 2008 rating decision granting service connection committed CUE by finding that the August 2004 rating decision contained CUE when it was well-reasoned and justified on the evidence of record. The Director of C&P also found that there was no subsequent medical evidence in the claims folder to support an association between service-connected schizophrenia and residuals of intracerebral hemorrhage. Consequently, the RO proposed to sever service connection for status post intracerebral hemorrhage with right hemiparesis in August 2008. In April 2009, service connection was severed effective June 30, 2009. Clear and Unmistakable Error Lack of CUE in the August 2004 rating decision denying service connection is not a permissible basis for finding CUE in the January 2008 rating decision granting service connection in order to justify severance of service connection. Service connection may only be severed if the evidence establishes that the initial grant of service connection for status post intracranial hemorrhage in the January 2008 rating decision was otherwise clearly and unmistakably erroneous. 38 C.F.R. §§ 3.105(d); 3.2600(e) (even if disadvantageous to the claimant, prior decisions may be reversed or revised on the grounds of CUE). In most cases, for CUE to exist, either (1) the correct facts in the record were not before the adjudicator or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). However, when determining whether a severance of service connection was proper, postdecisional evidence is relevant in determining whether the granting of service connection was clearly and unmistakably erroneous. Daniels v. Gober, 10 Vet. App. 474, 480 (1997). Further, VA is not limited to the law and the record that existed at the time of the original decision because the focus of the inquiry is not on the original decision, at the time that it was made, but the current award of service connection. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). Clear and unmistakable error is more than a disagreement as to how the facts were weighed or evaluation; the error must be undebatable and of the sort which would have manifestly changed the outcome had it not been made. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); see also Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (it must be absolutely clear that a different result would have ensued). Secondary service connection is available when a claimant's disability is either (1) due to or the result of a service-connected disability, or (2) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran is service connected for paranoid-type schizophrenia. The RO granted service connection in January 2008 on the basis of the opinion provided by the VA examiner in December 2003, which attributed the Veteran's stroke in May 1991 to his failure to take his medication as a result of his delusional thought process, which is service-connected. Further, a history of non-compliance with medications is shown by the evidence. In September 1984, a medical inquest warrant was issued when the Veteran was refusing to take his medication, and in October 1984, the Veteran unsuccessfully asked to decrease his medications. His doctor insisted on continuing his current prescription for hydrochlorothiazide (HCTZ) for control of his hypertension, as well as Lithium and Cogentin for his psychiatric symptoms. The evidence also shows that the Veteran was exhibiting symptoms of bizarre behavior prior to May 1991. September 1987 outpatient social work services records show that the appellant, the Veteran's daughter, called to report increasingly bizarre behavior and requested assistance in escorting the Veteran to the emergency room, as he was unable to go of his own volition but was living alone without sufficient care and exhibiting violent and erratic behavior. There are statements in the record from the appellant's brother, ex-husband, and a family friend that also attest to the Veteran's bizarre behavior prior to the intracerebral hemorrhage and his refusal to take medication due to his belief that his doctors were trying to kill him. The medical record closest in date to the May 1991 admission records is dated from August 1990, less than a year prior to the intracerebral hemorrhage, and shows that blood pressure was recorded at 202/160 and 212/108, as compared to his blood pressure on admission of 230/110. Lastly, as noted above, the Veteran's failure to take his medication for his hypertension was attributed to his delusions caused by his schizophrenia by the December 2003 and January 2006 VA examiners, and the June 1991 neurology consultation report establishes that the Veteran's left basal ganglia hemorrhage was secondary to hypertension. The notation on the use of the medication Nifedipine on the May 1991 VA medical certificate and June 1991 VA neurology consultation report indicate that the Veteran was administered this drug, a calcium channel-blocker, at 5:41 p.m., before he was transferred to VA care, and continued to take 20 mg of Nifedipine three times daily over the week following admission. At discharge in July 1991, he was given a prescription for Coumadin with a plan for medical monitoring of his anti-coagulant usage. EAP Following the grant of service connection for status post intracerebral hemorrhage in January 2008, the RO proposed to assign a 100 percent rating for the disability in May 2008. The C&P Director's review of the May 2008 "proposed" rating decision was pursuant to the extraordinary award procedure (EAP). In April 2009, severance of service connection was effectuated. VA Fast Letters 07-19 and 08-24 instituted the EAP that VA was to follow in situations involving an extraordinary award (i.e., a lump sum award of $250,000 or more or with a retroactive effective date more than eight years prior.) Fast letter 08-24 deemed the decision granting such an award a "proposed" grant of benefits and required that the proposed decision be reviewed by the Director, Compensation and Pension. In 2009, the Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision finding that the EAP was invalid. The Court held that it violated veterans' rights under governing regulations to be informed that their claims were receiving review at another level, and protecting their rights to participate and respond, and to provide additional evidence. Military Order of the Purple Heart of the USA v. Sec'y of Veterans Affairs, 580 F.3d 1293 , 1293 (Fed. Cir. 2009). In MacKlem v. Shinseki, 24. Vet. App. 63 (2010) (2012), the Court of Appeals for Veterans Claims, issued a decision regarding the effect on claims that had been subject to the now-invalid EAP. Specifically, the Court held that all adjudicative action by VA after the decision that had been subjected to the EAP was void. The Court stated that in applying Military Order of the Purple Heart, "it is clear that the only proper remedy is to place the appellant in the position he was in before the EAP, in receipt of a favorable decision, even if that position is erroneous." Id at 71-72. Therefore, for all intents and purposes, the RO's action of severing service connection in April 2009 did not occur. In light of the above, the Board concludes that all actions taken pursuant to the EAP, to include the April 2009 rating decision, are void. The Veteran is returned to the position he was in as of the May 2008 rating decision. But for the EAP, the Veteran would have received that rating decision, and service connection and a 100 percent rating would have been in effect. ORDER Restoration of service connection and compensation for status post intracerebral hemorrhage secondary to service-connected schizophrenia is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs