Citation Nr: 22010010 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 18-45 214 DATE: February 22, 2022 ORDER Restoration of service connection for interstitial lung disease and restrictive lung disease, effective June 1, 2018, is granted. FINDING OF FACT Resolving all doubt in his favor, the Veteran did not receive notification of the proposal to sever benefits and notification of the final severance. CONCLUSION OF LAW The severance of service connection for interstitial lung disease and restrictive lung disease, effective June 1, 2018, is void ab initio. 38 U.S.C. § 5109A (2021); 38 C.F.R. §§ 3.103, 3.105 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing, and a transcript of the hearing is associated with the record. At that time, the Veteran revoked his representation by the American Red Cross, and proceeded pro se. Propriety of the March 2018 severance of service connection for interstitial lung disease and restrictive lung disease. The Veteran contends that the March 2018 severance of service connection for an interstitial lung disease and restrictive lung disease was improper. Specifically, he maintains that lung diseases were caused by exposure to asbestos from his active service. Upon a review of the record, the AOJ did not ensure the procedural requirements of 38 C.F.R. § 3.105(d) were properly followed. Accordingly, the severance of service connection is void ab initio, and restoration is warranted. As this decision rests entirely on procedural grounds, the underlying merits will not be discussed. 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. 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). In the instant case, the Veteran was initially granted service connection for his lung diseases in a November 2014 rating decision. In connection with a claim for a total disability rating based upon individual unemployability (TDIU), the Veteran then underwent a VA examination for his lung diseases in October 2017. At that time, the examiner noted the Veteran did not have interstitial lung disease, and his restrictive lung disease was more likely due to obesity. Based on this examination and opinion, the AOJ proposed to sever service connection for the Veteran's service-connected disorders in a November 2017 rating decision. The AOJ sent notice of this decision, and his rights to present argument and to testify at a hearing, to the Veteran in separate November 16, 2017, and November 17, 2017, letters. The AOJ did not receive a response, and they accordingly severed service connection for the lung diseases in the March 2018 rating decision currently on appeal. The Veteran was similarly notified of this decision in a March 12, 2018, letter. The Veteran testified he never received any of the decisions or notification letters relating to the severance. Rather, he stated he first learned of his severance when his compensation check did not arrive in July 2018. Supporting the Veteran's claim, in a July 2018 phone conversation, summarized in a Report of General Information, the Veteran requested a copy of the March 2018 notification letter, and the report included a different address for the Veteran than the one the letters were mailed to. The record reflects that the Veteran has moved and changed addresses frequently. Initially, in August 2017, his address of record was 1015 Smith St, Charleston, WV. However, letters sent to that addressed were returned as undeliverable. Thus, a new address was located, and letters were then sent to 204 Easter Rd, APT 3, Nitro, WV. This address is confirmed on the September 2017 application for a TDIU. Thus, this was the address that all the Veteran's notification letters were sent to regarding the severance. However, as above, the Veteran testified he did not receive any of the letters. He also testified that he moved to Dunbar, WV around that time. He testified he may have been living in Dunbar in November 2017 when the first notification letter for the proposal was sent. Regardless, he believed he moved to Dunbar in 2017. The Dunbar address was the Veteran's listed address included in the above Report of General Information at the time of the July 2018 phone conversation. The Veteran has since moved again to an address in Ohio. Based on the foregoing, and resolving all doubt in his favor, the Board concludes he did not receive notification of the proposal to sever service connection or notice of the actual severance. In this regard, the Veteran is competent to report whether he received notice letters, and the Board has no reason to doubt the veracity of his testimony. His reports are supported by the evidence of record, including the July 2018 Privacy Act request, which was made from a new address. Additionally, upon learning of the severance, the Veteran swiftly initiated the appellate process, supporting his contention that he would have challenged the severance upon first learning of it. Consequently, as the AOJ did not ensure the Veteran received proper notification of the severance action throughout the process, he was deprived of his ability to meaningfully participate in the action. The AOJ thus did not satisfy a critical due process requirement under 38 C.F.R. § 3.105(d). Since the procedural safeguards of 38 C.F.R. § 3.105(d) were not properly followed, the severance is void ab initio. Restoration of service connection effective June 1, 2018, is warranted. E. I. VELEZ 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.