Citation Nr: 21030708 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-21 090 DATE: May 19, 2021 ORDER Severance of service connection for anoxic encephalopathy with cognitive disorder, not otherwise specified, and depressive disorder, not otherwise specified (hereinafter "anoxic encephalopathy") effective January 1, 2014, was not proper; restoration of service connection is granted. REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) based on the Veteran's cause of death is remanded. FINDING OF FACT VA received a September 2013 request for a predetermination hearing in response to an August 2013 notification letter regarding the proposal to sever service connection for anoxic encephalopathy; no hearing was held. CONCLUSION OF LAW The severance of service connection for anoxic encephalopathy, effective January 1, 2014, is void ab initio; restoration of service connection is warranted. 38 U.S.C. § 5112 (2012); 38 C.F.R. § 3.105(d), (i) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to November 1984. He died in December 2013. The appellant is his surviving spouse and substitute appellant. These matters come to the Board of Veterans' Appeals (Board) from an October 2013 rating decision which severed service connection for anoxic encephalopathy and a March 2014 rating decision which denied Dependency and Indemnity Compensation (DIC) benefits based on the Veteran's cause of death. As it pertains to the issue of DIC benefits, in a June 2015 VA Form 9 (Appeal to the Board of Veterans' Appeals), the appellant requested a Board videoconference hearing on the matter. A hearing was scheduled in August 2018 and then rescheduled for October 2019 when the appellant failed to appear. The appellant failed to appear for the October 2019 hearing and has not presented good cause for failing to do so. Accordingly, the appellant's request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). Whether the severance of service connection for anoxic encephalopathy was proper. Once service connection is granted, it can be severed only upon VA's showing that the rating decision granting service connection is clearly and unmistakably erroneous, and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105(d), (i); see also Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). 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 of the contemplated action at his or her latest address of record, will be furnished detailed reasons for the contemplated action, and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. 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). Under 38 C.F.R. § 3.105(i), written notice of a proposed severance action should also inform the beneficiary of his or her right to a pre-determination hearing, provided that a request for such a hearing is received within 30 days from the date of the notice. The Board additionally notes that service connection is protected when in effect for 10 or more years. See 38 C.F.R. § 3.957. However, this provision is not for application, as service connection for anoxic encephalopathy was in effect for less than 10 years. Here, the August 2013 rating decision proposed the severance of service connection for anoxic encephalopathy and the Veteran was notified of the proposed severance in an August 2013 letter. The Veteran was informed that he had 60 days to submit evidence to show that the proposed action should not be taken. The letter also explained how to obtain a personal hearing. On September 5, 2013, within 30 days of the date of the notification letter, the RO received a request from the Veteran's private attorney for a hearing on the proposed severance. See September 2013 VA Form 27-0820 (Report of General Information). However, there is no indication in the record that a hearing was held regarding the proposed severance, nor any indication that the request for a hearing was withdrawn. Nevertheless, the RO issued an October 2013 rating decision that severed service connection for anoxic encephalopathy, effective January 1, 2014. Considering this procedural history, the Board concludes that VA did not comply with the notification and due process requirements applicable to the severance of a service-connected disability under 38 C.F.R. § 3.105(d) and (i). The RO did not afford the Veteran a personal hearing as requested in September 2013. The October 2013 rating decision effectuating the severance noted that the Veteran had been notified of the proposal to sever the award of service connection for anoxic encephalopathy in August 2013 but had failed to respond to the proposal. As the record contains evidence of the Veteran's September 2013 request for a hearing on the proposed severance, the Board concludes that the RO did not meet the procedural requirement of 38 C.F.R. § 3.105(i) that a personal hearing be provided if requested within 30 days from the date of notification of proposed severance. As the RO's October 2013 severance action did not comply with the procedural due process requirements of 38 C.F.R. § 3.105(d) and (i), the severance of service connection for anoxic encephalopathy is found to be void ab initio. Wilson v. West, 11 Vet. App. 383, 385-86 (1998). The Board thus concludes that service connection for anoxic encephalopathy is restored from the date of the severance. REASONS FOR REMAND Entitlement to Dependency and Indemnity Compensation (DIC) based on the Veteran's cause of death is remanded. The Veteran's death certificate lists his immediate cause of death as renal failure due to kidney disease, due to diabetes, due to hypertension. The death certificate also states that anoxic encephalopathy was a significant condition contributing to death but not related to the cause of death. The RO denied entitlement to service connection for the Veteran's cause of death in a March 2014 rating decision, noting that the Veteran was only service-connected for hyperpigmented eruption of papules on his arms and pseudofolliculitis barbae. However, as discussed above, the Board has restored service connection for anoxic encephalopathy. As such, a remand is warranted so that VA can obtain a medical opinion as to whether the Veteran's anoxic encephalopathy, listed as a significant condition contributing to death on the Veteran's death certificate, contributed substantially or materially to cause death, or aided or lent assistance to the production of death. The matter is REMANDED for the following actions: 1. Obtain a VA medical opinion from an appropriate clinician as to whether the Veteran's anoxic encephalopathy, listed as a significant condition contributing to death on the January 2014 death certificate, contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 2. After completing the above, and any other development as may be indicated, the appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the appellant and her representative should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.