Citation Nr: 21025876 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-09 194 DATE: April 29, 2021 ORDER Service connection for PTSD is restored effective August 1, 2015. FINDING OF FACT The evidence does not show that the original grant of service connection for PTSD in June 2013 was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria for the severance of service connection for PTSD are not met. 38 U.S.C. §§ 1131, 1110, 5109A; 38 C.F.R. §§ 3.105 (d), 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to January 1988, and from February 1991 to June 1991. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a May 2015 rating decision. A hearing was held by the undersigned Veterans Law Judge in November 2020. The Veteran’s history of service connection for PTSD begins with his initial claim for “major depression (PTSD)” filed in August 1993. A July 1994 rating decision denied the claim based on a lack of in-service stressor to support a diagnosis of PTSD, though it acknowledged the Veteran’s anxiety diagnosis. In 2011, the Veteran filed to reopen his PTSD claim and a June 2013 rating decision granted service connection for PTSD. In February 2014, he filed an increased rating claim. Following two VA examinations, a December 2014 rating decision proposed severance based on clear and unmistakable error (CUE) in the June 2013 decision due to an absence of a diagnosis of PTSD confirmed by a VA psychiatrist or psychologist, or contract equivalent. Following an April 2015 VA examination, a May 2015 rating decision severed service connection effective August 1, 2015. The Veteran contends that VA improperly severed service connection for PTSD (or an acquired psychiatric disorder) because there is sufficient credible evidence of record showing a diagnosis of PTSD by a licensed psychologist. Moreover, the Veteran contends that, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), his claim encompassed other psychiatric diagnoses, and there is a psychiatric diagnosis related to service established by a VA examiner. Once service connection has been granted, it can only be severed where the evidence establishes that the grant was clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law. Stallworth, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In Stallworth, the United States Court of Appeals for Veterans Claims (Court) recognized that 38 C.F.R. 3.105(d) contemplates consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. Id. at 488; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). In fact, the Court noted that the regulation specifically allows a change in medical diagnosis to serve as a basis for severance. Indeed, in Stallworth, the Court, quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997), reiterated, “[i]f the Court were to conclude that . . . a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record.” Id. at 488. The Stallworth Court added, “[c]onsequently, the severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous.” Id. The Court has stated that clear and unmistakable error is a very specific and rare kind of error. It is the kind of error of fact or law that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. See Stallworth. The Board finds that the competent and credible medical and lay evidence of record, both pre-dating the RO’s grant of service connection and post-dating its severance, is not sufficient to warrant severance of service connection for PTSD. Turning to a chronological review of the evidence, in August 1993 (approximately two years after discharge from service), the Veteran sought mental health treatment at a psychiatric outpatient clinic for depressive symptoms since serving in the Persian Gulf. His treating provider assessed the Veteran with possible PTSD, anxiety disorder, and major depression. An initial PTSD VA examination was conducted in October 1993. The Veteran stated he was on anxiety medication and was in counseling. He explained that about two months after returning from his deployment in Saudi Arabia, he began to experience a depressed mood. He thought it might be related to a neck injury he suffered in service. He stated that, while he saw no trauma or combat, he did see pictures of trauma. He was diagnosed with depressive disorder and anxiety disorder. In June 1994, the Veteran submitted a statement regarding his neck injury, and stated that he also has unexplained depression which may be related to his injury. When the Veteran filed to reopen his claim in December 2011, he included a statement explaining that new and material evidence showed a worsening of his PTSD symptoms. The new evidence included proof of service under hostile fire and in a combat zone in support of Operation Desert Storm, medical treatment at VAMC Corpus Christi eight months after discharge from anxiety disorder and major depression and flashbacks, the trauma of finding a dead sailor floating in the water on duty, and treatment records at VAMC Maui. A friend of the Veteran submitted a statement in January 2012 detailing her observations of the Veteran’s depression and anxiety. He had described to her the sadness he felt seeing the dead body and had spoken about the stress of being in a combat zone. The Veteran submitted his own statement explaining that he served under hostile fire in a combat zone. It was very stressful, and he felt constantly on-guard. He also described seeing a dead body in the water, and that it was a frightening and traumatic event for him. The claims file contains a Cognitive Processing Therapy for PTSD Contract signed by the Veteran and a clinician in March 2012. Counseling records from 2012 reflect a diagnosis of PTSD as of January 2012, and the Veteran describes traumatic incidents of seeing a dead body and seeing a person having convulsions while on leave in New York. He explained becoming depressed soon after returning home from Saudi Arabia. Honolulu VAMC records reflect a DSM-IV diagnosis of PTSD since May 2012. A June 2013 record of treatment shows that the Veteran shared the incident of finding the dead sailor in the Navy. In July 2013, he stated his insomnia began after returning home from the Gulf War. In the June 2013 rating decision granting service connection, the RO found that service connection had been established based on his report of fear and presence in a hostile environment in service and his current mental health treatment at Honolulu VAMC. Upon filing for an increased rating, another VA examination was conducted in July 2014. The examiner diagnosed the Veteran with major depressive disorder and found that he did not meet the criteria for PTSD as he denied combat exposure and did not manifest criterion B for re-experiencing symptoms. He opined that the Veteran’s depression had no proximal link with military service. An August 2014 Honolulu VAMC record shows that the Veteran stated he had never felt the same since returning home from Saudi Arabia. He began to isolate and felt depressed. The treatment note reflects that the Veteran had a history of PTSD from witnessing traumatic experiences, such as interacting with men on the front line who took pictures of scenes after explosions. He reported having nightmares about being on the ship and seeing planes. The DSM-IV diagnosis was PTSD and major depressive disorder. Another VA examination was conducted in December 2014. The examiner diagnosed the Veteran with unspecified depressive disorder and mild alcohol use disorder. He did not meet the diagnostic criteria for PTSD. Regarding in-service stressors, the Veteran reported seeing a dead body in the water while he was aboard the USS Oliver Hazard Perry. He also recalled an incident while on leave in New York when he saw medics tending to a man having convulsions. The examiner found these to be inadequate stressors to support a PTSD diagnosis. The examiner noted that the Veteran was currently service connected for PTSD, but his review of the notes indicated he was never afforded an initial PTSD examination. He opined that the Veteran’s depressive disorder was less likely than not related to service, as symptoms were first reported two years after service with notes indicating the symptoms coincided with the ending of a significant relationship and the suicide of a close friend. Upon noting the lack of PTSD diagnosis in the 2014 examinations, the RO sought an addendum opinion from the December 2014 examiner inquiring if the depressive disorder was a progression of his PTSD. The examiner explained that the major depressive disorder was a change in diagnosis since the PTSD diagnosis was in error. Another VA examination was conducted in April 2015. The examiner diagnosed the Veteran with major depressive disorder. The Veteran explained his fear of a missile attack or IED explosion while working at a guard tower in Saudi Arabia. He brought pictures taken by other members of his unit of the aftermath of battles and scenes of destruction. He also recalled finding the dead body. The examiner found the Veteran’s reported stressors, in combination, met criterion A for PTSD. However, the Veteran still did not meet all criterion adequate to support a PTSD diagnosis. The examiner explained that the Veteran’s symptoms were consistent with a diagnosis of major depressive disorder. There did not appear to be a proximal link between depressive disorder and service as there was no record of psychiatric problems dating back to the 1990s or even early 2000s with which the examiner could link to being in closer proximity to his military service. The Veteran insisted that his symptoms began shortly after service and have persisted ever since. The examiner conceded there was at least a 50 percent chance that depression symptoms dated back to shortly after service, based solely on the Veteran’s self-statement. Therapy notes from Dr. L, a psychologist, in 2017 reflect a DSM-IV diagnosis of PTSD and bipolar disorder. Dr. L noted that while the Veteran did not see combat in service, he saw awful atrocity pictures that he still sees in nightmares and has intrusive imagery. After returning from the Gulf, the Veteran said he had changed and was constantly depressed. Dr. L opined as follows: “I assume that since he first experienced mood fluctuation and depression while in the Navy, that his age of mid-twenties in combination with service stressors and exposure to traumatic stimuli, that the stressors probably contributed to his mood disorder developing at a fairly vulnerable period of his life.” In severing service connection, the RO afforded more weight to the VA examiners than the treating physicians as the examiners had access to the entirety of the Veteran’s records. However, the Board notes that at least two of the examinations contained inaccurate factual statements. The December 2014 examiner stated he found no initial PTSD examination, indicating he did not review the October 1993 examination report. The April 2015 examiner wrote there was no record of psychiatric problems dating back to the 1990s. This is inaccurate; there are records as early as 1993 reflecting psychiatric treatment and a VA examination. The July 2014 examination report did not describe the Veteran’s alleged in-service stressors, making it unclear which stressors the examiner found inadequate to establish criterion A. Contrary to the RO’s finding, the evidence does show a DSM-IV diagnosis of PTSD associated with verified in-service stressors (in combination) confirmed by a licensed psychologist. Treatment records going back to 2012 reflect a diagnosis of PTSD, and a 2014 record notes a DSM-IV diagnosis. In light of this evidence, the grant of service connection for PTSD was not clearly erroneous. Moreover, there are diagnoses of anxiety and depressive disorder since at least 1993, and the Veteran has consistently reported onset of symptomatology upon discharge from service that has continued since. The April 2015 VA examiner provided a positive nexus between the Veteran’s depressive disorder and service. Thus, even assuming arguendo that the PTSD diagnosis was clearly erroneous, pursuant to Clemons, the RO should have expanded the Veteran’s claim to encompass his diagnosed psychiatric disabilities. In sum, the evidence of record shows that the grant of service connection for PTSD does not meet the stringent standard of clear and unmistakable error. As such, severance was improper, and the Veteran’s service connection is restored. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.