Citation Nr: 1751704 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 15-25 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether the severance of service connection for posttraumatic stress disorder (PTSD) was proper. REPRESENTATION Veteran represented by: African American PTSD Association ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from April 1981 to September 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD. 2. The December 2011 RO rating decision to award service connection for PTSD was not the product of undebatable factual or legal error, and so was not clearly and unmistakably erroneous. CONCLUSION OF LAW Service connection for PTSD is restored. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.105(d), 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. This case involves an appeal of an RO decision to sever service connection for PTSD. Once service connection has been granted, it will be severed only where evidence establishes that the original grant of service connection was from Clear and Unmistakable Error (the burden of proof being on the Government). See 38 C.F.R. § 3.105(d). See also Stallworth v. Nicholson, 20 Vet. App. 483 (2006). "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. Fugo v. Brown, 6 Vet. App. 40 (1993). There is a three-pronged test for CUE. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions in effect at the 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 clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Russel v. Principi, 3 Vet. App. 310 (1992); Fugo, 6 Vet. App. 40 ,43-44. When determining whether there was CUE in a decision that granted service connection, the reviewable evidence is not limited to what was before the RO in making its original decision. In fact, 38 C.F.R. § 3.105(d) specifically states that "[a] change in diagnosis may be accepted as a basis for severance," clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). The severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence establishes that service connection is clearly erroneous. Stallworth, 20 Vet. App. 483, 488. The RO originally granted service connection for PTSD in a December 2011 rating decision with a 70 percent evaluation effective November 20, 2009. The decision was based on the opinion of a September 2011 examiner, who opined that the Veteran's diagnosed PTSD was at least as likely as not due to a confirmed in-service stressor. In June 2013, the RO issued a proposed severance of service connection based on two January 2013 psychiatric evaluations. In connection with a criminal prosecution, Drs. Jonathan Howard and Orest E. Wasyliw reviewed the Veteran's claims file, interviewed the Veteran, and conducted examinations. Dr. Howard opined that the Veteran did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) criteria for PTSD. Dr. Wasyliw opined that the Veteran had never been diagnosed with PTSD. A review of the medical records shows that the Veteran was diagnosed with PTSD by the September 2011 examiner. He was also diagnosed with PTSD at medical visits in May 2007, October 2008, September 2011, and April 2012. Most recently in a September 2016 Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire, the psychiatrist diagnosed the Veteran with PTSD, schizophrenia, depressive disorder, and anxiety disorder, and noted flashbacks related to the Veteran's corroborated in-service stressor. Determinations of whether severance is warranted is not required to be based only on evidence that was of record at the time the determination to sever was made, which makes a significant difference in this case as the added medical opinion in 2016 makes it impossible to conclude that reasonable minds could not differ as to whether the Veteran had PTSD. Given this conclusion, the Board will restore service connection for PTSD as it has not been shown that there was CUE in the grant of service connection. The primary grounds for the RO's severance, the January 2013 medical opinions sought for criminal prosecution, both opined that the Veteran did not have a diagnosis of PTSD. However, other medical professionals have diagnosed the Veteran with PTSD, including at least one since the time of the negative opinions. As such, the Board considers the September 2011 examiner's opinion, which was the base of the grant of service connection to, be sufficient. There simply was no "undebatable error" on the part of the RO back that meets the bar for CUE. Instead, the later severance of service connection was based on the opinions of two physicians that were used for criminal prosecution. A difference of opinion as to the weighing of the medical opinions does not rise to the level of clear and unmistakable error as medical records show that the Veteran has a current diagnosis of PTSD. Accordingly, the high standard for CUE has not been met. Service connection for PTSD is restored. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for PTSD is restored. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs