Citation Nr: A21007344 Decision Date: 04/07/21 Archive Date: 04/07/21 DOCKET NO. 190702-24722 DATE: April 7, 2021 ORDER Restoration of service connection for amyotrophic lateral sclerosis (ALS), with bilateral upper and lower extremity weakness with atrophy, persistent daytime hypersomnolence, bowel impairment, and urinary frequency, is granted. FINDING OF FACT 1. The grant of service connection for ALS in a March 2013 rating decision is not shown to have been clearly and unmistakably erroneous. CONCLUSION OF LAW 1. The criteria for restoration of service connection for ALS, with bilateral upper and lower extremity weakness with atrophy, persistent daytime hypersomnolence, bowel impairment, and urinary frequency, are met. 38 U.S.C. §§ 101(24), 1131, 5109A (2020); 38 C.F.R. §§ 3.1, 3.6, 3.12, 3.103, 3.105, 3.303, 3.307, 3.318 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard and the Reserves from May 1981 to September 1987, with periods of active duty for training (ACDUTRA) and inactive duty. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran initiated an appeal to the Board from the June 2019 rating decision, which confirmed the severance of service connection for ALS. Importantly, the severance was finalized in an April 2019 rating decision, which also included the discontinuance of Dependents Educational Assistance, special monthly compensation pursuant to 38 U.S.C. § 1114(l), automobile or other conveyance adaptive equipment, and specially adapted housing benefits. Such issues were not included in the June 2019 rating decision on appeal, and the Veteran has not initiated an appeal as to such issues, and thus they are not currently before the Board. Propriety of the severance of service connection for ALS. The Veteran contends that the April 2019 severance of service connection, confirmed in May 2019 and June 2019 rating decisions, was improper. In this regard, he contends that he had a period of active service in 1987 that was longer than 90 days, and thus restoration of service connection for ALS is warranted on a presumptive basis relating to such period. After a review of the record, the Board agrees and finds that while service connection was originally improperly granted on a presumptive basis to a period of service that did not qualify for such presumption, the Veteran did in fact have a qualifying period of service for which presumptive service connection for ALS could be granted. Therefore, the severance of service connection for ALS was improper, and restoration of service connection is warranted. 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). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection. 1. Due Process 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). 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 ALS in a March 2013 rating decision. In October 2018, the Veteran filed for an increased evaluation for his ALS. In developing such claim, the RO determined that the Veteran did not in fact have a qualifying period of service for presumptive service connection for ALS. Thus, in February 2019, the RO proposed to sever service connection for ALS, and discontinue the ancillary awards. The RO stated that the decision to grant service connection was clearly and unmistakably erroneous because it presumptively service-connected ALS to a non-qualifying period of service. In this regard, the RO noted that the Veteran served with the Army National Guard for the period from May 21, 1981 to May 17, 1984, and consequently the Army Reserves from May 18, 1984 to September 29, 1987. They noted the period in consideration for the grant was ACDUTRA which occurred from June 21, 1982 to August 20, 1982. They continued by noting that for a presumptive grant of service connection for ALS under 38 C.F.R. § 3.318, it is required that a Veteran must have active, continuous service of 90 days or more, which was not present in the instant case. Then, in the April 2019 rating decision, the RO severed service connection. The RO reiterated the February 2019 rating decision that had proposed to sever service connection and concluded that severance was proper. The Veteran requested reconsideration of the February 2019 proposal, and in May 2019, then finally in June 2019, the RO concluded that severance of service connection for ALS was proper. Importantly, there were minor procedural errors in effecting the severance; however, as discussed below, the Board herein finds the severance was improper on the merits, and thus the procedural defects are not prejudicial. Specifically, the RO issued the proposed rating in February 2019, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor, and was given 60 days for the presentation of additional evidence to show that service connection should be maintained in a February 2019 notice letter. The RO issued the April 2019 rating decision, which severed service connection prospectively effective August 1, 2019. The resulting period for which the Veteran was awarded service connection for ALS began on December 21, 2012, and ended July 31, 2019, a period of less than ten years. 38 C.F.R. § 3.957. In this regard, the RO changed the effective date of the severance to July 31, 2019, in the June 2019 rating decision. Regardless of the change in date, both August 1, 2019, and July 31, 2019, are not greater than the last day of the month in which a 60-day period from the date of the June 2019 notice expired. However, the August 1, 2019 date would have been greater than the last day of the month in which a 60-day period from the date of the May 2019 notice of the April 2019 final severance expired, but the July 31, 2019 date is not. Consequently, the record includes procedural defects which would have needed to be corrected if the severance was upheld. See 38 C.F.R. § 3.105(d). However, as stated previously, the Board finds the severance was improper on the merits, and thus there is no need to remand to correct such procedural defects. 2. Existence of CUE in the Award of Service Connection The remaining question before the Board in this case is whether the grant of service connection for ALS was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because although the initial award of service connection was improperly connected to a period of ACDUTRA, the Veteran had a separate qualifying period of active service for presumptive service connection, and thus the award of service connection was not a clear and unmistakable error. 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) (internal citations omitted). A clear and unmistakable error is one about which reasonable minds could not differ. See 38 C.F.R. § 3.105(a)(1)(i). In most respects, the CUE standard for severing service connection under 38 C.F.R. § 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). 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 v. Nicholson, 20 Vet. App. 482, 488 (2006). Initially, the Board notes that the Veteran does not contend, nor does the evidence of record show, that his ALS had its onset in service. In this regard, the record reflects that his original date of diagnosis was in 2005 and he was advised to stop working in December 2012 due to his progressing symptoms. See e.g. November 2012 J.R., M.D., Letter; see also January 2013 VA Examination. Rather, the Veteran relies on the presumptive service connection for ALS provided by 38 C.F.R. § 3.318, as was the basis for the original grant of service connection. In this regard, such regulation provides that development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease. Id. Service connection will not be established under this section if; (1) there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service; (2) there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran’s own willful misconduct; or, (3) the veteran did not have active, continuous service of 90 days or more. Id. In analyzing 38 C.F.R. § 3.318, the United States Court of Appeals for the Federal Circuit held that the plain language of 38 C.F.R. § 3.318 mirrors the statutory definitions by requiring “active military, naval, or air service” of 90 days or more for the presumption to apply and by twice reciting the term “the veteran.” Bowers v. Shinseki, 748 F.3d 1351 (Fed. Cir. 2014); see also Hansen-Sorensen v. Wilkie, 909 F.3d 1379 (Fed. Cir. 2018). The Secretary’s use of these statutorily defined phrases indicates a limitation on the application of the presumption to those who qualify as a “veteran” under 38 U.S.C. § 101(2). Id. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National Guard of any State. 38 C.F.R. § 3.6(d). Turing to the evidence of record, in the March 2013 rating decision which granted service connection for ALS, the RO identified the Veteran’s active service period as from June 21, 1982 to August 20, 1982, only. Initially, the Board notes that such period is not over 90 days and is thus inadequate for presumptive service connection for ALS under 38 C.F.R. § 3.318. It was a clear error for the RO to award service connection presumptively based on such period of service. However, the Board finds that the error did not manifestly change the outcome of the claim, and thus, the March 2013 rating decision was not clearly and unmistakably erroneous. See Allen, supra. Specifically, the June to August 1982 period of service was recognized as active service by the RO in rating decisions; however, March 2014, May 2014, March 2015, and June 2015 all recognize a second period of service from January 1987 to May 1987. In this regard, the Veteran’s personnel records show he served in Army National Guard from May 1981 to December 1984 and the Reserves from January 1985 to September 1987; with a period of active service as recognized above from June 1982 to August 1982. His personnel records also confirm however, that he also had 116 active service points from May 1986 to May 1987, with an active duty tour from January 11, 1987, to May 6, 1987, a period of 116 days. Such service was concurrent with his training in the Infantry Officer Basic Course, and he was noted to have at the termination of such period “honorable relief from” ACDUTRA. Thus, the record reflects the Veteran had a period of ACDUTRA for over 90 days from January 1987 to May 1987. However, such service is not considered “active military, naval, or air service” per 38 U.S.C. § 101(24), unless the Veteran “was disabled or died from a disease or injury incurred or aggravated in the line of duty.” Id. In this regard, other than ALS, service connection is in effect for tinnitus only. Specifically, in an April 2019 rating decision, the RO awarded service connection for tinnitus, noting only and therefore relating such to, the period of service from June to August 1982. Nonetheless, in granting service connection for tinnitus, the RO relied on an April 2019 VA hearing loss and tinnitus examination. At that time, the Veteran reported his tinnitus began in 1987, after weapons training. The examiner opined that his tinnitus was at least as likely as not related to service because his military occupation specialty of Military Police had a high probability of noise exposure. Based on the foregoing opinion, the Board however finds that service connection for tinnitus is more appropriately linked to the period of ACDUTRA from January 1987 to May 1987. In this regard, the Veteran reported his tinnitus began in 1987, and after his weapons training. Importantly, the Veteran is competent to self-diagnose tinnitus and report it onset date. See Charles v. Principi, 16 Vet. App. 370 (2002) (noting tinnitus is a disorder with symptoms that can be identified through lay observation alone); see also Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Board has no reason to doubt the veracity of the Veteran’s reports. Notably, he reported tinnitus began after his weapons training, which would have been coincident with his Infantry Officer Basic Course, again supporting his reports. In contrast, the Board acknowledges the examiner’s opinion that the noise exposure from his MOS at least as likely as not caused his tinnitus. However, resolving all doubt in the Veteran’s favor, even if the earlier noise exposure could have caused his tinnitus, the Veteran competently and credibly reported its onset during the later period of service, and onset date the examiner included in the report. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Consequently, the Board finds that tinnitus had its onset during the period of ACDUTRA from January 1987 to May 1987. Therefore, as the Veteran was disabled from tinnitus due to an injury sustained during the period of ACDUTRA from January 1987 to May 1987, i.e., acoustic trauma, that period is considered “active military, naval, or air service.” 38 U.S.C. § 101(24). Thus, as the Veteran developed ALS that manifested at any time after discharge or release from active, continuous service for more than 90 days, and there is no affirmative evidence that ALS was not incurred during or aggravated by active military, naval, or air service, or that such was due to the Veteran’s own willful misconduct; service connection for ALS on a presumptive basis would be warranted. 38 C.F.R. § 3.318. Consequently, the Board cannot state that the March 2013 grant of service connection was the kind of error 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). Therefore, resolving all doubt in his favor, the Board finds that the grant of service connection for ALS, with bilateral upper and lower extremity weakness with atrophy, persistent daytime hypersomnolence, bowel impairment, and urinary frequency, was not “clearly erroneous”, and thus severance of service connection for these disabilities, effective July 31, 2019, was improper. STEVEN D. REISS 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.