Citation Nr: A21017989 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 190211-6828 DATE: November 8, 2021 ORDER Severance of service connection for panic disorder was improper; restoration of service connection for panic disorder is granted. FINDING OF FACT The grant of service connection for panic disorder, pursuant to a February 2012 rating decision, was not clearly and unmistakably erroneous. CONCLUSION OF LAW The severance of service connection for panic disorder was improper; the criteria for restoration of service connection for panic disorder have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1996 to June 2000. A June 2017 action by the Agency of Original Jurisdiction (AOJ) proposed to sever service connection for panic disorder; the severance was promulgated in May 2018, effective June 1, 2018. The Veteran filed a timely Notice of Disagreement, and subsequently filed a notice to opt-into the VA Rapid Appeals Modernization Program (RAMP), choosing the Supplemental Claim lane in October 2018. In January 2019, the RO issued a RAMP rating decision, characterizing the Veteran's claim as reopening of a claim for service connection for panic disorder, and denying the claim. In this rating decision, the Veteran's claim for panic disorder remained denied. In February 2019, the Veteran expressed his disagreement with the RAMP rating decision, although he used the wrong form to express his disagreement, he explicitly noted that he disagreed with the severance of service connection for panic disorder. In March 2021, he was notified that his panic disorder was incorrectly docketed and was provided with the correct form; he then filed a Notice of Disagreement (VA Form 10182) under the new Appeals Modernization Act (AMA) choosing the Hearing docket. The Veteran was scheduled for a hearing, but notified VA that he wished to cancel it in March 2021. Based on the procedural history of his case, the Board finds that the essence and basis of the Veteran's continued claim regarding his panic disorder, has been his continued contest to the RO's severance of his disability in the initial May 2018 rating decision. To this end, the Veteran filed a timely NOD, which should have been interpreted as an appeal to the propriety of the severance of service-connected panic disorder. Accordingly, the Board finds that it has jurisdiction to adjudicate the propriety of the severance of service connection for panic disorder. Severance of service connection for panic disorder with agoraphobia and polysubstance dependence. 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 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 based on CUE is revised to conform to 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 panic disorder in a February 2012 rating decision. In a June 2017 rating decision, the RO proposed to sever service connection for panic disorder. Specifically, the RO noted that the Veteran's service treatment records did not show treatment for or a diagnosis of a mental health condition during service, postservice treatment records reflected onset of the condition in 2009 in the setting of alcohol abuse and marital discord, and the May 2017 VA examiner opinion that the Veteran's panic disorder was less likely than not related to service because it onset years after service separation was not diagnosed during service or at service separation. Ultimately, the RO concluded that the Veteran's mental health problems "clearly began in 2009 and the conclusion that they were related to active duty service was clearly erroneous." In the May 2018 rating decision, the RO severed service connection for panic disorder, reiterating the findings of the June 2017 proposed rating action and concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating decision in June 2017 and notified the Veteran at his latest address of record; detailed reasons for the proposed action were given, and the Veteran was provided 60 days to present additional evidence to show that service connection should be maintained. The June 2017 notice letter also informed the Veteran that he could have a hearing if his request was received within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The RO issued the May 2018 rating decision, which severed service connection prospectively effective June 1, 2018. Notice of this rating decision, plus his appeal rights, was sent to the Veteran at his address of record in May 2018. The June 1, 2018, date was greater than the last day of the month in which a 60-day period from the date of the June 2017 notice expired. Thus, all due process requirements were met in the severance of service connection for panic disorder. See 38 C.F.R. § 3.105(d). Having met the due process requirements, the remaining question is whether the 2012 grant of service connection for panic disorder was clearly and unmistakably erroneous. The Board finds that it was not clearly and unmistakably erroneous, and the severance was not proper. First, a finding of CUE is generally predicated on the facts in evidence at the time of the decision, unless the diagnosis made is shown to be clearly erroneous. The RO has not suggested that the Veteran made false statements to the examiner, or that the examiner who provided the favorable nexus opinion otherwise did not have the full medical history and documentation available to him at the time. The July 2011 examiner ultimately decided that the Veteran's report of the onset of his mental health symptoms in service, "confirmed by" the May 1998 record noting "Patient reports depression symptom(s), constituted sufficient evidence of inservice symptoms. It was also the determination of the July 2011 VA examiner that the Veteran's post-service diagnosis (bipolar disorder with panic disorder and agoraphobia) was related to that inservice report of symptoms. To the extent that the June 2017 proposed rating decision noted that there was no diagnosis of a mental health condition in service or at service separation, the Board is reminded that an inservice diagnosis is not required. Indeed, service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). It appears to be the determination of the July 2011 examiner that the Veteran's mental health diagnosis is related to his military service. Conversely, the May 2017 VA examiner found that "a positive screen [for depression] does not indicate a diagnosis provided by a medical or mental health professional." The July 2011 VA examiner and the May 2017 VA examiner appear to disagree as to whether the Veteran's report of depression during service, both as told to the July 2011 VA examiner and in the May 1998 service treatment record, precludes a nexus between his current diagnosed mental health condition and his military service. While the points made by the May 2017 VA examiner, to include the records generated by the Veteran's treatment for panic disorder and substance abuse in 2009, are acknowledged, the May 2017 opinion does not adequately prove to the Board that the July 2011 VA examiner's opinion constituted CUE, particularly when 38 C.F.R. § 3.303(d) is considered. Instead, it amounts to no more than a disagreement as to the probative value of the in-service records. A disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. Accordingly, the severance of service connection for panic disorder was improper, and restoration is warranted. J. M. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.