Citation Nr: 20023940 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 17-35 890 DATE: April 7, 2020 ORDER Severance of service for allergic rhinitis was improper; restoration of service connection for allergic rhinitis is granted. FINDING OF FACT The grant of service connection for allergic rhinitis, pursuant to a July 2013 rating decision, was not clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of service connection for allergic rhinitis was improper; the criteria for restoration of service connection for allergic rhinitis have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army Reserves with period of active duty from January 1991 to June 1991, May 2005 to June 2006, September 2007 to September 2009, January 2010 to January 2011 and January 2011 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video-conference hearing held in February 2020 before the undersigned Veterans Laws Judge. A transcript of the hearing is of record. 1. Whether severance of service connection for allergic rhinitis was proper Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (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. 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. 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, 21 Vet. App. at 62. The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO originally granted service connection for allergic rhinitis in a July 2013 rating decision. In a March 2015 rating decision, the RO proposed to sever service connection for allergic rhinitis. The RO concluded that service connection for allergic rhinitis was granted erroneously. The RO explained that the Veteran’s allergic rhinitis existed prior to a period of active duty and there was no evidence that his allergies were aggravated beyond the natural progression of the disease process. The RO concluded that the decision to grant service connection for allergic rhinitis was clearly and unmistakably erroneous. In the June 2015 rating decision, the RO severed service connection for allergic rhinitis. The RO reiterated the March 2015 rating decision that had proposed to sever service connection for bilateral hearing loss. The RO concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in March 2015, and the Veteran was notified 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 notice letter also informed the Veteran that he had the opportunity for a 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 RO issued the June 2015 rating decision, which severed service connection prospectively effective September 1, 2015. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in June 2015. The September 1, 2015, date was greater than the last day of the month in which a 60-day period from the date of the June 2015 notice expired. Thus, all due process requirements were met in the severance of service connection for allergic rhinitis. See 38 C.F.R. § 3.105(d). Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for allergic rhinitis was clearly and unmistakably erroneous. Regarding the characteristics of clear and unmistakable evidence, the word ‘unmistakable’ means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster’s New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). The Board concludes that the severance of service connection was improper because there is no clear and unmistakable evidence, as the term is understood in law, that the Veteran’s allergic rhinitis did not have onset due to exposure to allergens during a period of the Veteran’s active service. Tending to support the claim, the February 2013 report of VA sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx examination documents diagnosis of allergic rhinitis. The Veteran complained of allergies since the first Gulf War in 1992. The examiner opined that the Veteran’s allergic rhinitis was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that in allergic rhinitis, the allergic reaction begins when an allergen comes into contact with the mucus membranes in the lining of the nose. Perennial allergic rhinitis is associated with year-round and indoor allergens, including mold spores, cockroaches, dust mite, fecal particle, animal dander, and occupational exposure. The examiner concluded that the Veteran’s allergic rhinitis was at least as likely as not related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. There is no competent medical opinion that weighs against the claim. Thus, the evidence does not establish by clear and unmistakable evidence that the current allergic rhinitis did not onset due to injury (i.e., exposure to allergens) sustained during a period of the Veteran’s active service. Here, the RO’s determination amounts to no more than a disagreement as to how to weigh the facts. In context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. (Continued on the next page)   Accordingly, the severance of service connection for allergic rhinitis was improper and restoration is warranted. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.