Citation Nr: A21007480 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 200330-74890 DATE: April 9, 2021 ORDER Severance of service connection for lumbar spine degenerative disc disease (DDD) was improper; restoration of service connection for lumbar spine DDD is granted. Severance of service connection for depression secondary to service-connected conditions was improper; restoration of service connection for depression secondary to service-connected conditions is granted. FINDINGS OF FACT 1. The grant of service connection for lumbar spine DDD, pursuant to a December 2012 rating decision, was not clearly and unmistakably erroneous. 2. The grant of service connection for depression secondary to service-connected conditions, pursuant to a May 2015 rating decision, was not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of service connection for lumbar spine DDD was improper; the criteria for restoration of service connection for lumbar spine DDD have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. The severance of service connection for depression secondary to service-connected conditions was improper; the criteria for restoration of service connection for depression secondary to service-connected conditions have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to October 1980. A rating decision was issued under the legacy system in January 2016 and the Veteran submitted a timely Notice of Disagreement (NOD). In March 2020, the RO issued a Statement of the Case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a March 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the March 2020 SOC. Therefore, the March 2020 SOC is the decision on appeal and the Board may only consider the evidence of record at the time of the March 2020 SOC. 38 C.F.R. § 20.301. Severance of Service Connection 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). 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). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). 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); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 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). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking an unfavorable previous determination overturned. 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, 20 Vet. App. at 488. The Secretary’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. A decision that is reversed or amended based on CUE is revised to conform to the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62. 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 lumbar spine DDD in a December 2012 rating decision. Service connection for depression secondary to service-connected conditions was granted in a May 2015 rating decision. In a September 2015 rating decision, the RO proposed to sever service connection for lumbar spine DDD and depression secondary to service-connected conditions. The RO noted that the Veteran underwent VA examination and the examiner opined that the claimed lumbar spine DDD was less likely than not proximately due to or the result of a service-connected disability. The RO concluded that there was no evidence showing that the lumbar spine disability was related to service or secondary to his service-connected bilateral ulnar neuropathy. The RO explained that as service connection for lumbar spine DDD was erroneously granted, service connection for depression must be severed. Thus, the RO concluded that the decision to grant service connection for lumbar spine DDD and depression secondary to service-connected conditions was clearly and unmistakably erroneous. In the January 2016 rating decision, the RO severed service connection for lumbar spine DDD and depression secondary to service-connected conditions. The RO reiterated the findings of the September 2015 rating decision and concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in September 2015, 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. The September 2015 notice letter also informed the Veteran that he had the opportunity for a hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). In the January 2016 rating decision, the RO determined that severance of service connection was proper. The RO issued the January 2016 rating decision, which severed service connection prospectively effective April 1, 2016. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in January 2016. The April 1, 2016, date was greater than the last day of the month in which a 60-day period from the date of the January 2016 notice expired. Thus, all due process requirements were met in the severance of service connection for lumbar spine DDD and depression secondary to service-connected conditions. See 38 C.F.R. § 3.105(d). 1. Whether the severance of service connection for lumbar spine DDD was proper Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for lumbar spine DDD was clearly and unmistakably erroneous. Regarding the characteristics of clear and unmistakable evidence, the word ‘unmistakable’ means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster’s New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). The severance of service connection was improper because there is no clear and unmistakable evidence, as the term is understood in law, that the Veteran’s lumbar spine DDD did not have onset due to disease or injury incurred during service or secondary to a service-connected disability. The August 2012 Report of VA back (thoracolumbar spine) conditions examination document diagnosis of lumbar spine DDD. The examiner opined that the lumbar spine DDD was less likely than not proximately due to or the result of the Veteran’s service-connected condition (ulnar neuropathy). The examiner explained that the symptoms of the upper and lower extremities were at least as likely as not due to cervical stenosis and not the lumbar spine DDD. In the September 2015 rating decision proposing to sever service connection, the RO essentially disagreed with how the December 2012 rating decision weighed the evidence of record, including the August 2012 Report of VA examination. Disagreeing with how the facts were weighed, the RO found that the decision to grant service connection for lumbar spine DDD was clearly and unmistakably erroneous because the August 2012 VA examiner opined the lumbar spine DDD was less likely than not proximately due to or the result of the Veteran’s service-connected condition. In the January 2016 rating decision severing service connection, the RO reiterated the September 2015 rating decision findings. However, this is not a claim of service connection to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the preponderance of the evidence would be against the claim. In this matter, the standard to be employed for severance is whether there is “clear and unmistakable evidence” of an error. The Board reiterates that the August 2012 VA examination was of record and considered at the time of the December 2012 rating decision. Despite the opinion offered in the August 2012 examination report, the RO still awarded service connection for lumbar spine DDD. Reasonable minds could disagree as to the ultimate determination. However, the determination here amounts to no more than a disagreement as to how to weigh the facts. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. The severance of service connection for lumbar spine DDD was improper and restoration is warranted. 2. Whether the severance of service connection for depression secondary to service-connected conditions was proper Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for depression secondary to service-connected condition was clearly and unmistakably erroneous. The severance of service connection was improper because there is no clear and unmistakable evidence, as the term is understood in law, that the Veteran’s depression did did not have onset due to service-connected condition. Service connection has been established for bilateral ulnar neuropathy, effective August 3, 1983. Tending to support the claim, the March 2015 Report of VA Mental Disorders examination documents diagnosis of unspecified depressive disorder. The examiner opined that the claimed depression was at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. The examiner explained that the injury resulting in ulnar neuropathy and lumbar spine disability effected significant change in the Veteran’s life. The Veteran attempted to self-medicate by using alcohol to deal with the pain and sleep impairment. The examiner determined that the Veteran experienced symptoms of depression as a result of the injury. The examiner concluded that it was more likely than not that the Veteran’s depression was proximately due to or the result of his ulnar neuropathy and/or lumbar spine DDD. In the September 2015 rating decision proposing to sever service connection, the RO explained that because it was proposed to sever service connection for the lumbar spine disability, service connection for depression (as a secondary condition) must be severed also. In the January 2016 rating decision severing service connection, the RO reiterated the September 2015 rating decision findings. However, this is not a claim of service connection to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the preponderance of the evidence would be against the claim. In this matter, the standard to be employed for severance is whether there is “clear and unmistakable evidence” of an error. Reasonable minds could disagree as to the ultimate determination. However, the determination here amounts to no more than a disagreement as to how to weigh the facts. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. Moreover, the Board reiterates that service connection is in effect for bilateral ulnar neuropathy and the March 2015 report of mental disorders examination documents the examiner’s opinion that it was more likely than not that the Veteran’s depression was, in pertinent part, proximately due to or the result of the ulnar neuropathy. The severance of service connection for depression secondary to service-connected conditions was improper and restoration is warranted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.