Citation Nr: A21019233 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200518-84230 DATE: December 2, 2021 ORDER The appeal to restore service connection for sleep apnea is granted. FINDING OF FACT The December 2019 rating decision granting service connection for sleep apnea did not contain clear and unmistakable error (CUE) and severance of service connection for sleep apnea was improper. CONCLUSION OF LAW The criteria for restoration of the grant of service connection for sleep apnea have been met. 38 U.S.C. §§ 5109A, 5112, 7111; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1995 to October 2007. The issues are on appeal under the Appeals Modernization Act (AMA) from a rating decision issued in May 2020. The Veteran submitted a notice of disagreement in May 2020 electing the direct review lane. The appeal to restore service connection for sleep apnea is granted. Severance of service connection for sleep apnea based on CUE in the December 2019 rating decision was improper, and the appeal to restore service connection for sleep apnea is granted effective from the date of severance. In a December 2019 rating decision, the Regional Office (RO) granted service connection for sleep apnea. In a February 2020 rating decision, the RO proposed to sever service connection for sleep apnea based on a finding of CUE in the December 2019 rating decision. Specifically, the RO found that the record contained a negative nexus and no evidence of an in-service event, injury, or disease. In a May 2020 rating decision, the RO effectuated severance of service connection for sleep apnea. The Board finds that there was no CUE in the December 2019 rating decision granting service connection for sleep apnea. Subject to the limitations in 38 C.F.R. §§ 3.114 and 3.957, service connection may be severed only where the evidence establishes that the award of service connection was clearly and unmistakably erroneous, with the burden of proof being upon the Government. 38 C.F.R. § 3.105(d). In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be undebatable and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and, (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc)). CUE is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). The correct facts are presumed to be before the RO at the time of the December 2019 rating decision as, although it did not provide a rationale or explanation for the grant, it did cite to VA treatment records, a VA examination, and the Veteran's claim. The correct law was also applied as the RO cited to the correct regulations in the decision. The RO appears to sever service connection in May 2020 based on a disagreement with how the facts were weighed or evaluated. The December 2019 rating decision does not specifically indicate how they weighed the facts, so it is impossible to state whether there was a CUE. The Board notes that reasonable minds could differ on whether the Veteran had an in-service event, injury, or disease given the Veteran's lay statements. Additionally, as the rating decision does not indicate how the facts were weighed, it is impossible to show that the RO relied on inaccurate facts or that any error was undebatable. The Board again notes that a disagreement with the manner in which the facts of record were weighed cannot form the basis for a finding of CUE. See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). VA has not met its burden of demonstrating CUE in the December 2019 rating decision granting service connection for sleep apnea; therefore, severance of service connection was improper, and the appeal to restore service connection for sleep apnea is granted, effective from the date of severance. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patricia Veresink, 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.