Citation Nr: 22008029 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 15-40 980A DATE: February 11, 2022 ORDER Restoration of service connection for an unspecified trauma and stressor disorder is granted. FINDING OF FACT The grant of service connection for an unspecified trauma and stressor disorder in an April 2021 rating was not clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria for restoration of service connection for an unspecified trauma and stressor disorder are met. 38 U.S.C. §§ 1110, 5109A (2021); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to June 1970, and August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In March 2019 and December 2020, this matter was remanded by the Board for further development, and it now returns for adjudication. In April 2021, the AOJ granted service connection for an unspecified trauma and stressor related disorder. However, in October 2021, service connection for this disorder was severed. The AOJ reinstated the appeal for service connection for an acquired psychiatric disorder. The Veteran has not yet appealed the severance of service connection. However, the issue of propriety of the severance of service connection is part and parcel to the issue of entitlement to service connection for an acquired psychiatric disorder. Therefore, the Board will consider the propriety of the severance in its decision. Entitlement to service connection for an acquired psychiatric disorder, to include whether the severance of service connection for an unspecified trauma and stressor disorder was proper. The Veteran contends that he has a current acquired psychiatric disorder that is directly related to his fear of attack from North Korean forces while he was stationed along the demilitarized zone in South Korea. Therefore, he contends service connection is warranted. Upon review of the record, the Board finds that the Veteran has a current diagnosis of an unspecified trauma and stressor related disorder, that is related to fear of hostile military or terrorist activity, and thus the October 2021 severance of service connection was improper. In this regard, and initially, as the Board is restoring service connection for an unspecified and trauma related disorder, service connection for posttraumatic stress disorder (PTSD) will not be separately adjudicated herein. See e.g. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The AOJ originally granted service connection for an unspecified stressor and trauma related disorder in an April 2021 rating decision. Shortly thereafter, in July 2021, the AOJ proposed to sever service connection for a depressive disorder. The AOJ stated that the decision to grant service connection was clearly and unmistakably erroneous because the Veteran's reported stressor was not verified, and the lessened requirements for fear of hostile military or terrorist activity were only applicable to a diagnosis of PTSD, which the Veteran did not have. In an October 2021 rating decision, the AOJ severed service connection for this disability prospectively effective January 1, 2022. The AOJ reiterated July 2021 rating decision that had proposed to sever service connection, and concluded that severance was proper. The AOJ followed the proper due process steps for severing service connection. The AOJ issued the proposed rating in July 2021, 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 an August 2021 notice letter. The AOJ issued the October 2021 rating decision, which severed service connection prospectively effective January 1, 2022. The resulting period for which the Veteran was awarded service connection for the unspecified trauma and stressor related disorder began June 11, 2012, and ended January 1, 2022, a period of less than ten years. 38 C.F.R. § 3.957. Notice of this rating decision, plus his appeal rights, was sent to the Veteran on November 1, 2021. The January 1, 2022, date was greater than the last day of the month in which a 60-day period from the date of the November 2021 notice expired. Thus, all due process requirements were met in the severance of service connection for an unspecified trauma and stressor related disorder. See 38 C.F.R. § 3.105(d). 2. Existence of CUE in the Award of Service Connection Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection an unspecified trauma and stressor related disorder was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because the grant was based on a VA examiner's positive nexus opinion, which confirmed the existence of the stressor based on fear of hostile military or terrorist activity. Further, there is no probative medical evidence that contradicts this opinion. Therefore, the grant 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). A brief background is necessary to understand this case. The Veteran applied for service connection for an acquired psychiatric disorder, claimed as PTSD, in June 2012. At that time, he generally claimed entitlement to service connection for PTSD, without describing any in-service stressors. His personnel records show service in Korea along the DMZ during his first period of service. However, his service treatment records are silent for any complaint, treatment, or diagnosis referable to a psychiatric disorder. Following service, the Veteran was treated for anxiety beginning in the early 1990s, without any specific etiological information. See e.g. September 1990 Highlands Regional Medical Center Records. VA treatment records from January 2002 show he continued to take medication for anxiety, and he endorsed depression at that time. Following his application for service connection, he was afforded a VA psychiatric examination in August 2012. The examiner noted the Veteran did not meet the DSM-IV criteria for PTSD, but diagnosed a depressive disorder not otherwise specified. The Veteran denied enemy engagement in the examination, but reported that he had no psychological symptomatology prior to service. The examiner noted the psychiatric symptoms first began in response to medical issues. Importantly, the only stressor identified by the August 2012 examiner was that the Veteran learned a friend had died by suicide while he stationed at Fort Knox. In January 2013, the Veteran further detailed his service in Korea, noting he patrolled along the DMZ and was in fear for his life due to threat of attack by North Koreans. He noted that he was told to fire upon North Koreans trying to invade. In February 2013, the AOJ's Joint Services Records Research Center, coordinator indicated that the Veteran's unit, the 5th Battalion, 38th Artillery, was listed in the VA Adjudication Manual M21-1 as having served along the DMZ and that his stressor could be conceded on that basis. The Board finds that the AOJ's action was essentially a finding that the Veteran's reported stressor was consistent with the place, type, and circumstances of his service. 38 U.S.C. § 1154(a). Nonetheless, in a March 2013 rating decision, the AOJ denied service connection for PTSD based on the August 2012 examination. The record thereafter reflected continuing treatment for depression and anxiety. See e.g. December 2019 VA Treatment records. In the December 2020 remand, the Board noted that the August 2012 examiner did not acknowledge the Veteran's since conceded stressor, and that more information had been added to the record concerning his reported stressor. Additionally, the DSM had been revised from the DSM-IV to the DSM-5, and 38 C.F.R. § 4.125 requires diagnoses to conform to the DSM-5. Thus, a new examination was requested. The Veteran underwent a VA psychiatric examination in March 2021, wherein he was diagnosed with an unspecified trauma and stressor related disorder. The examiner likewise noted that he did not meet the diagnostic criteria for PTSD. At that time, the Veteran stated he ignored his mental health symptoms for years after service. He also stated he stays anxious, dreams about Korea, didn't sleep well, and had intrusive thoughts regularly. The examiner noted a stressor of service in Korea along the DMZ, including patrols where he could hear speakers from North Korea playing propaganda. The Veteran stated he feared for his life and an attack from the North Koreans. The examiner opined the stressor was related to the fear of hostile military or terrorist activity. The examiner then provided an accompanying March 2021 opinion, which stated that the unspecified stressor and trauma related disorder was at least as likely as not incurred in service or related to the reported stressor. The examiner stated that the Veteran denied any history of mental health issues prior to service, and the VA medical record reflects ongoing treatment for depression and depression with anxiety. The examiner noted the in-service stressor was consistent with diagnostic requirements for a DSM-5 trauma related disorder. The examiner also noted that the August 2012 diagnosed a depressive disorder, NOS; however the examiner stated that the previous complaints of depression, anxiety and sleep difficulty are subsumed within this diagnosis. Further, the Veteran's ongoing complaints, and statements from his wife, support his contention that his symptoms are trauma related, specifying depression, anxiety, sleep difficulty, flashbacks, and intrusive thoughts. The examiner concluded that it was at least as likely as not that the Veteran's unspecified trauma and stressor related disorder was incurred in service, or was caused by his claimed in service stressor. To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The AOJ severed service connection because the Veteran was not awarded service connection for PTSD, for which the February 2013 stressor determination was intended to support. For PTSD, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). However, the Board finds that the February 2013 determination was also consistent with a determination under 38 U.S.C. § 1154 based on the Veteran's competent and credible report of his experiences in service. As a result, the fact that the fear of hostile military and terrorist activity provision does not pertain to the disability from which the Veteran suffers does not mean that the initial award of service connection was erroneous. In this regard, the Board finds the March 2021 opinion highly probative. The examiner included a thorough review of the record, including citing to evidence, and considered the lay statements of record. Further, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In contrast the negative opinion from August 2012 holds no probative weight. In this regard, as identified by the 2020 Board remand, the examiner did not have full knowledge of the Veteran's stressors, which were subsequently acknowledged by VA. Therefore the March 2021 examination and opinion is the only probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (finding VA examination reports were more probative because they were more thorough and detailed, they discussed the conflicting opinions, and examiners had access to the claims file). Accordingly, the March 2021 examiner's opinion establishes that the Veteran's in-service experiences caused his current disability. The Board has no reason to doubt the veracity of the Veteran's statements regarding his experiences in service, which he is competent to provide, and are consistent with place, type, and circumstance of the Veteran's service in Korea along the DMZ. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board is unable to find that the rating decision that granted service connection was clearly and unmistakably erroneous. Importantly, the AOJ has failed to identify a clear and unmistakable error. See Allen, supra. Accordingly, the severance of service connection was based on a difference in weighing of the facts, and was not an error for which reasonable minds could not differ. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Consequently, while as noted above, the record is not without conflict as to the in-service incurrence of this disorder, the Board concludes that the grant of service connection for unspecified trauma and stressor related disorder was not "clearly erroneous", and thus (Continued on the next page) severance of service connection for this disability, effective January 1, 2022, was improper. Restoration of service connection is warranted. J. B. FREEMAN 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.