Citation Nr: 21003985 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-10 741A DATE: January 25, 2021 REMANDED The reduction for service-connected degenerative changes of the midthoracic spine with compression fracture at T8 and 9 with residual demonstrable deformity and myofascial pain syndrome of the cervical and thoracic spine from 60 percent to 20 percent, effective July 31, 2001, based on a finding of fraud, is remanded. The severance of service connection for posttraumatic stress disorder (PTSD), effective June 27, 2002, based on a finding of fraud, is remanded. The discontinuance of a total disability rating based on individual unemployability due to service-connected disability (TDIU), effective June 27, 2002, based on a finding of fraud, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1977 to January 1981. These matters came before the Board of Veterans’ Appeals (Board) on appeal from February 2016 rating decision issued by the Regional Office (RO) in Milwaukee, Wisconsin. The Veteran later testified before the undersigned at a February 2020 video-conference hearing. A transcript of the hearing is included in the electronic claims file. 1. The reduction for service-connected degenerative changes of the midthoracic spine with compression fracture at T8 and 9 with residual demonstrable deformity and myofascial pain syndrome of the cervical and thoracic spine from 60 percent to 20 percent, effective July 31, 2001, based on a finding of fraud, is remanded. 2. The severance of service connection for posttraumatic stress disorder (PTSD), effective June 27, 2002, based on a finding of fraud, is remanded. 3. The discontinuance of a total disability rating based on individual unemployability due to service-connected disability (TDIU), effective June 27, 2002, based on a finding of fraud, is remanded. In its February 2016 rating decision of the rating reduction and severance issues on appeal, the RO's determination that the Veteran had engaged in fraud was based in significant part on a referenced December 4, 2014 VA Office of Inspector General (OIG) report summarizing the VA OIG's investigation of the Veteran's compensation benefits fraud. In its prior August 2015 proposed rating decision, the RO cited that such evidence documented that the Veteran freely admitted to previously exaggerating the nature of his disabilities in order to receive higher benefits and that OIG also observed and documented (videotaped) a far greater functional capacity than the Veteran reported or displayed during his examinations. The evidence of record also includes a press release from the U.S. Attorney Office from the Eastern District of Wisconsin stating that the Veteran entered a guilty plea for wire fraud committed against the VA and was sentenced to serve twenty-one months. However, the Veteran strongly disagrees with the nature and contents of the OIG’s investigation and findings, indicating that he was in essence coerced into making certain adverse statements and received ineffective counsel. Further, that a 30 minutes videotape was not fully representative of the level of the functional impairment of his twenty plus years back disability to warrant his rating reduction from 60 percent to 20 percent. In short, it is the Veteran’s contention that the severance of his service-connected PTSD, discontinuance of his TDIU and reduction of his increased rating were all improper. See, August 2020 hearing testimony. See, February 2016 DRO Hearing Transcript. See, September 2019 Correspondence from the Veteran. Furthermore, the Veteran also testified during his August 2020 Board hearing that his fraud charges with regards to service connection for his PTSD were subsequently dropped by the court. See, September 2019 Correspondence from the Veteran. The Veteran has also asserted that other correspondence, which includes a “buddy statement” (by A.W.S.) and his treating physician’s statement (Dr. D.K.C.) are independent corroborating evidence in support of his appeal. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). Service connection for any disability or death granted or continued under title 38 U.S.C. that has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the VA finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). 38 C.F.R. § 3.957 (2019). In addition, when fraud is found to have formed the basis for an award of service-connected benefits, regardless of the length of time a claimant has been in receipt of those benefits, severance of the award can be made upon a showing of fraud alone. Roberts v. Shinseki, 23 Vet. App. 416, 428-29 (2010). In determining whether the initial grant of service connection was based on fraud, the Board is guided by 38 C.F.R. § 3.1, which defines fraud for purposes of 38 U.S.C. § 1159 and its implementing regulations (38 C.F.R. § 3.957) as an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining VA benefits, with knowledge that such misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. The Board additionally notes that the wording of 38 C.F.R. § 3.1 makes it clear that the Board may look not only at statements the Veteran made in conjunction with his service connection claims, but also at later statements made in an effort to retain those benefits ("for the purpose of obtaining or retaining VA benefits"). As such, the Board must review the entire record. However, the Board notes that although a September 2015 VA Memo referenced an OIG Investigation document, this report is not currently included in the record. Furthermore, the Veteran’s plea agreement and indictment, and any record of subsequently dropped charges with regards to his PTSD claim, are also absent from the record. Thus, the Board finds that the evidence of record is currently incomplete, and that it must remand these matters to obtain these respective outstanding records, which the Board needs to review and evaluate before it can adjudicate the issues on appeal on their respective merits. The matters are REMANDED for the following action: 1. Contact the VA Office of the Inspector General (OIG) and request a copy of the report of the investigation that culminated in the finding that the Veteran had committed fraud in the pursuit of VA compensation benefits, including a complete and final copy of the December 2014 Department of Veterans Affairs, OIG report. Should the OIG conclude that privacy issues preclude the provision to VA of the report and associated records in their entirety, provide a redacted copy of the file. If a complete report cannot be obtained, an explanation should be provided. 2. The RO should also obtain the Veteran’s plea agreement and indictment, and any subsequently dropped charges or reduced sentence from the U.S. Attorney Office from the Eastern District of Wisconsin or appropriate authority. If such information cannot be obtained, provide an explanation as to the efforts undertaken to obtain such information. 3. Thereafter, the RO should take all necessary further appropriate action on these claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, Associate 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.