Citation Nr: 21076454 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-38 330 DATE: December 23, 2021 ORDER Restoration of 38 U.S.C. § 1151 compensation benefits for lumbar spinal stenosis is granted. FINDINGS OF FACT 1. Compensation benefits under 38 U.S.C. § 1151 for lumbar spinal stenosis was in effect for over 10 years when it was severed. 2. The Agency of Original Jurisdiction (AOJ) did not demonstrate the grant of 38 U.S.C. § 1151 compensation benefits for lumbar spinal stenosis was based on fraud or demonstrate it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. CONCLUSION OF LAW The criteria for restoration of 38 U.S.C. § 1151 compensation benefits for lumbar spinal stenosis are met. 38 U.S.C. §§ 1151, 1159; 38 C.F.R. §§ 3.105, 3.957. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from January 1978 to February 1981, and in the Coast Guard from September 1981 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the AOJ. The Veteran testified before the undersigned at a Board hearing in September 2021. A transcript of the hearing is associated with the record. Whether the October 2014 severance of 38 U.S.C. § 1151 compensation benefits for lumbar spinal stenosis was proper. The Veteran contends that the discontinuance of 38 U.S.C. § 1151 compensation benefits for lumbar spinal stenosis was improper, and appeals for restoration of this benefit. Upon review of the record, as service connection was in effect for more than 10 years, it was protected under 38 C.F.R. § 3.957; therefore, the 1151 benefit should be restored. Initially, the provisions that govern severance of service connection also apply to severance of section 1151 compensation benefits. See Hornick v. Shinseki, 24 Vet. App. 50, 56 (2010) (stating, in the context of holding that the severance protection afforded to service connection awards in effect for 10 or more years extends to compensation awards under section 1151, that, "through its language, Congress has clearly stated its intent that beneficiaries of section 1151 compensation are to have their disabilities treated 'as if' they were service connected"). 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). The initial question for the Board is whether the AOJ followed the due process requirements in severing service connection. The AOJ granted 38 U.S.C. § 1151 compensation benefits for lumbar spinal stenosis in a January 2012 rating decision. It assigned an effective date of April 21, 2004. The October 2014 decision severed 38 U.S.C. § 1151 compensation benefits, prospectively effective February 1, 2015. Accordingly, service connection had been in effect for over 10 years, and thus, the provisions of 38 C.F.R. § 3.957 should have been considered by the AOJ. 38 C.F.R. § 3.957 provides that service connection for any disability or death granted or continued under title 38 U.S.C., which 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 finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). Id. In light of the above, in order to sever 38 U.S.C. § 1151 compensation benefits, the AOJ has to show "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." Id. The AOJ did not make either necessary finding. Moreover, the record does not show either element necessary for severance under § 3.957 exists. Specifically, the Veteran has the requisite honorable service, and there is no showing the grant was based on fraud. In this regard, a December 2011 Board decision found the Veteran's statements regarding his symptoms and adverse effects from the VA treatment in April 2004 were not credible. However, a credibility finding and a finding of fraud are entirely separate and distinct, as fraud requires determination of intent and purpose. See 38 C.F.R. §§ 3.1(aa)(2), 3.901. Here, the burden to show fraud is on VA, and the AOJ has not met this burden. Consequently, as the provisions of 38 C.F.R. § 3.957 have not been met in the severance of 38 U.S.C. § 1151 compensation benefits, the severance was improper. (Continued on next page) Restoration of 38 U.S.C. § 1151 compensation benefits for lumbar spinal stenosis is granted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.