Citation Nr: 19165751 Decision Date: 08/23/19 Archive Date: 08/23/19 DOCKET NO. 16-29 760 DATE: August 23, 2019 ORDER The severance of service connection for amyotrophic lateral sclerosis (ALS) was proper; restoration is denied. The discontinuance of entitlement to specially adapted housing (SAH) was proper; restoration is denied. The discontinuance of basic eligibility for Dependents’ Educational Assistance (DEA) benefits was proper; restoration is denied.   FINDINGS OF FACT 1. The service member did not serve on active duty, and his ALS was not incurred or aggravated therein during his active duty for training (ACDUTRA). 2. As the severance of service connection for ALS was proper, the service member did not have basic eligibility for SAH or DEA benefits. CONCLUSIONS OF LAW 1. The severance of service connection for ALS was proper. 38 U.S.C. §§ 101, 5112; 38 C.F.R. §§ 3.105, 3.318. 2. The discontinuance of specially adapted housing was proper. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.105, 3.809. 3. The discontinuance of basic eligibility for DEA benefits was proper. 38 U.S.C. §§ 3500, 5112; 38 C.F.R. §§ 3.105, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal concerns a service member who served in the National Guard from February 1982 to August 1988. He died in July 2016. The appellant is pursuing the appeal on behalf of the Veteran’s minor child, who was substituted in January 2019 for the appeal pending at the time of the service member’s death. The case is on appeal from a January 2016 rating decision. Prior to his death, the service member, in a February 2016 statement, requested a Board hearing. Per an April 2016 correspondence from his representative and a June 2016 substantive appeal (via VA Form 9), the service member expressed a desire to withdraw the hearing request. 38 C.F.R. § 20.704(e). The appellant has not requested a hearing in the matter. Although the representative attempted to withdraw from such in January 2019, the Board considers the organization to remain the appellant’s representative solely for the issuance of this decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Severance 1. Whether severance of service connection for ALS was proper. During his lifetime, the service member was service connected for ALS. A November 2014 rating decision granted service connection for ALS. The RO found that “[a]lthough not shown in service, service connection for amyotrophic lateral sclerosis has been granted on the basis of presumption.” A February 2015 rating decision proposed to sever service connection. The RO found that there was clear and unmistakable error (CUE) in the decision to grant service connection because the Veteran did not have not have the requisite service. The RO explained that his ACDUTRA in the National Guard did not qualify as active duty. The January 2016 rating decision on appeal severed service connection effective April 1, 2016. The RO reiterated the same reasons for severance as set forth in the February 2015 proposed decision. A. Applicable Law Presumptive Service Connection Pursuant to 38 C.F.R. § 3.318(a), the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease. Service connection will not be established under this section: (1) if there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service; (2) if there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran’s own willful misconduct; or (3) if the veteran did not have active, continuous service of 90 days or more. Congress has authorized the United States to pay a “veteran” compensation for any disability contracted or aggravated while in “the active military, naval, or air service” during a period of war or peacetime. 38 U.S.C. §§ 1110, 1131; Bowers v. Shinseki, 748 F.3d 1351, 1353 (Fed. Cir. 2014). The statutes define the term “veteran” as a person who has served in “active military, naval, or air service,” which includes “any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(2), (24)(B); Id. Section 3.318 specifically refers to “active military, naval, or air service,” which, in turn, “implies a requirement that the individual attain veteran status.” Bowers, 748 F.3d at 1353. The regulation provides that the presumption of service connection for ALS applies after discharge or release from active military, naval, or air service. Id. That phrase is specifically defined by statute to include only individuals who served on active duty or on ACDUTRA, but only when the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty. Id. “ACDUTRA” is not “active duty,” so for a person who had only the former and came down with ALS to qualify under the ALS presumption, there must be a showing that the ALS was “incurred or aggravated” in the line of duty and that the person became disabled from that disease during the training period. Hansen-Sorensen v. Wilkie, 909 F.3d 1379, 1383 (Fed. Cir. 2018). Severance Service connection will be severed only where evidence establishes that it is CUE (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). 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). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 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 v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. 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 sections 5109A or 7111. Id. However, where the evidence before the Board established that the Veteran had no legal entitlement to VA service connection and, the provisions of § 3.105(a) and (d), which limit VA’s ability to sever service connection, do not apply. The Board did not have to determine whether CUE had been committed. Allen v. Nicholson, 21 Vet. App. 54, 61 (2007) (service in the National Guard was not “Federal service”).   B. Discussion Due Process The RO in this case has severed service connection for ALS. The initial question before the Board is whether the RO followed the applicable due process procedures for this action. The RO followed the prescribed proper due process steps for severing service connection. First, the RO issued a proposed rating in February 2015. The service member was notified in April 2015 at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The April 2015 notice letter also informed the service member 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 service member did not submit additional evidence or request a predetermination hearing. Accordingly, the RO issued the January 2016 rating decision, which severed service connection prospectively effective April 1, 2016. Notice of this rating decision, plus his appeal rights, was sent to the service member under a January 2016 cover letter. The Board observes that the final date of severance was greater than the last day of the month in which a 60-day period from the date of the January 2016 notice to the service member of the final rating action expired. This was not necessary because the evidence established that the service member had no legal entitlement to service connection. See 38 C.F.R. § 3.105 (“The provisions of this section apply except where . . . the evidence establishes that service connection was clearly illegal.”). Regardless, in light of the RO’s action, all due process requirements were met in severing service connection. See 38 C.F.R. § 3.105(d). Severance Propriety The next question is whether the severance was proper. The Board finds that the severance was proper because the service member did not have qualifying service upon which the presumption of service connection under § 3.318 could apply. The service member served in the National Guard from February 1982 to August 1988. He had a period of ACDUTRA from April 1982 to July 1982. He was diagnosed with ALS in 2014 after first presenting with symptomatology in 2005. The service member’s service does not qualify as active service. He did not serve on active duty. His period of ACDUTRA was greater than 90 days, but his disease was not incurred or aggravated therein. A private medical record from October 2014 and a December 2014 VA examination show that his symptoms first presented in 2005 followed by a formal diagnosis in 2014. This evidence demonstrates that the service member’s ALS was not “incurred or aggravated” in the line of duty. Relatedly, the service treatment records (STRs), including an October 1985 period examination, show that he did not become disabled from that disease during the training period. See Hansen-Sorensen, 909 F.3d at 1383. As such, the facts clearly and unmistakably establish that the presumption is not available in his case. Thus, the severance of service connection was proper. In June 2016, March 2017, and May 2018 briefs, the appellant’s representative indicated that the Board could find the Federal Circuit’s holding in Bowers inapplicable by finding that ALS qualifies as an “injury” during active duty for training. Essentially, the representative contends that National Guard service itself is an injury when considering “medical evidence establishing the possible latent effects military service can have on the development of ALS.” Relatedly, the representative argued that VA’s exclusion of National Guard veterans from the ALS presumption is contrary to the finding which led to the enactment of the regulation. The presumption was established based on a Weisskopf study, which found that veterans of the National Guard were at least as likely at risk of developing ALS as other service members. The attorney also argued that VA has granted presumptive service connection to National Guard service members who operated, maintained or served board C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. In a March 2017 brief, the representative also observed that presumptive service connection for certain diseases now applies to National Guard service at Camp Lejeune. The attorney argued that the underlying basis for VA’s decision to extend presumptive service connection is the same as in the instant scenario involving National Guard service and the subsequent development of ALS. At present, the Board is without jurisdictional authority to grant service connection along the lines argued by the representative. It is VA’s policy, as outline above, to grant service connection only where ALS was incurred during a period of active service. As outlined by the Federal Circuit in Hansen-Sorensen, this requires a showing that the ALS was “incurred or aggravated” in the line of duty and that the person became disabled from that disease during the training period. 909 F.3d at 1383. Analogizing to situations where VA has extended the presumption to National Guard service member, the attorney argues that his service itself should be considered an “injury.” The Federal Circuit in Hansen-Sorensen directly addressed an identical argument, but concluded that there was “no basis for concluding that the Secretary cannot reasonably distinguish the ALS situation from the C-123 and Camp Lejeune situations in making judgments about whether to declare categorically or to presume that specific diseases or injuries were “incurred or aggravated in line of duty,” or that certain individuals became disabled during specified periods, under § 101(24)(B) and (C).” See 909 F.3d at 1384. The Federal Circuit did qualify in Hansen-Sorensen that it “express[ed] no view on what a different agency or judicial record might reveal.” Id. at 1384-85. Here, the evidentiary record is identical to the one in that case. As summarized, the service member in Hansen-Sorensen had six years of National Guard service including a period of 182 days of ACDUTRA. He died many years later from ALS. The evidentiary record before the Board in the current case is in no way distinguishable from that before the Federal Circuit in Hansen-Sorensen. Accordingly here, the Board is without jurisdiction to re-interpret VA’s regulations to find the instant service member’s National Guard service itself to constitute an “injury” within the meaning of 38 U.S.C. § 101(24). In doing so, the representative is essentially asking the Board to side-step the holdings in Bowers and Hansen-Sorensen. The Board finds no legally supportable basis to do so. In light of the foregoing, the Board finds that the severance of service connection was proper because there is clear and unmistakable evidence that the Veteran did not have qualifying service under § 3.318 to establish the presumption of service connection for ALS. As such, the appeal is denied. Discontinuance 2. Whether discontinuance of SAH was proper. 3. Whether discontinuance of basic eligibility for DEA benefits was proper. Specifically, the RO discontinued these benefits because the awards were based on the grant of service connection for ALS. The discontinuance of these benefits is governed by 38 C.F.R. § 3.105(e) and § 3.343(c). For sake of brevity, the Board observes that the criteria are materially the same as those concerning the severance of service connection except that it is governed by a “clear and convincing” standard and not a CUE standard. (Continued on the next page)   In the instant case, the discontinuance was proper. Herein above, the Board finds that the severance of service connection for ALS was proper. There is no other legal or factual basis upon which these two benefits could be granted. As such, the service member did not have legal entitlement to these benefits. Consequently, the discontinuance was proper, and the appeal is denied. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel 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.