Cad Severed - Voided By Bva - Involves Cue

[carlie]

FYI - this IS NOT my BVA case - but this is from

the BVA Judge that decided my case.

http://www.va.gov/vetapp12/Files3/1220502.txt

Citation Nr: 1220502
Decision Date: 06/12/12 Archive Date: 06/22/12

DOCKET NO. 10-43 381 ) DATE
)
)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Providence, Rhode Island


THE ISSUE

Whether service connection for coronary artery disease (CAD) was properly severed.


REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran and his son


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Associate Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900© (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from October 1946 to March 1948 and had service with the National Guard from 1949 through 1988.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the RO.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Veteran testified at a hearing held before the undersigned Veterans Law Judge at the RO in May 2012. The record contains a transcript of that hearing.



FINDING OF FACT

The rating decision in May 2008 that granted service connection for coronary artery disease did not involve clear and unmistakable error.


CONCLUSION OF LAW

The severance of service connection for coronary artery disease was not proper and is void ab initio. 38 U.S.C.A. §§ 1110, 5109A (West 2002); 38 C.F.R. §§ 3.105(d), 3.310 (2011).



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); the regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.

The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.


Duty to Notify and Assist

The VCAA redefined VA's duty to assist a Veteran in the development of his claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

The United States Court of Appeals for Veterans Claims (Court) has held that VCAA does not apply in matters of revision of an RO decision on the basis of clear and unmistakable error (CUE). See Parker v. Principi, 15 Vet. App. 407 (2002).

Inasmuch as the propriety of the severance involves a determination as to CUE, VCAA is not for application. Livesay v. Principi, 15 Vet. App. 165 (2001);

Regardless, the Veteran was provided the appropriate notice in several letters about the proposed severance and afforded an reasonable opportunity for response.


Analysis

The RO granted service connection for coronary artery disease in a May 2008 rating decision. Based on a review of the November 2006 and December 2006 VA examination reports, the RO proposed to sever service connection for CAD in a December 2009 rating decision.

Service connection may be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE), the burden of proof being upon the Government. Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of §3.114 are for application.

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. 38 C.F.R. § 3.105(d).

Clear and unmistakable error (CUE) is defined as a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993).

To determine whether CUE was present in a prior determination, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

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 therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained.

In an April 2010 rating decision, the RO formally severed service connection for CAD, effective on July 1, 2010. The RO reiterated that the severance was proper because the evidence did not show that the Veteran had a myocardial infarction while he was performing inactive duty for training (INACDUTRA) during the period from April 8 to April 10, 1988.

Specifically, the RO noted that the VA examiner opined that it was more likely than not that the Veteran did not experience a myocardial infarction between April 8 and April 10, 1988 and that the records showed that the Veteran denied having heart problems on April 9, 1988.

After a careful consideration of the record in light of the applicable law, the Board finds the high evidentiary burden of showing CUE has not been met to support severance of service connection in this case.

The Board observes that a finding of CUE must be based upon an error of fact or law, not merely a disagreement as to how the facts are weighed or evaluated. Here, the grant of service connection for CAD is not found to be untenable based on the extant law and facts.

To be considered CUE, either the correct facts, as they were known at the time, must not have been before the adjudicator or the statutory or regulatory provisions extant at the time must have been incorrectly applied.

As noted, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or active duty for training (ACDUTRA) or for injury, but not disease, incurred in or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(21), (22), (23), and (24), 106, 1110, 1131; 38 C.F.R. §§ 3.6(a), 3.303(a); see also Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Brooks v. Brown, 5 Vet. App. 484 (1994).

In this case, the rating decision in May 2008 cited the VA examiner's opinion that it was "unlikely that it was more likely than not that the [Veteran] did not suffer a myocardial infarction during his reserve duty April 8-10, 1988." The VA examiner also noted that a myocardial infarction had occurred between February 1981 and April 1988, before the period from April 8 to April 10, 1988.

However, in a May 2004 letter, the Veteran's physician opined that the Veteran suffered an acute inferior wall myocardial infarction in 1988. A December 2004 letter from the physician indicated more specifically that the Veteran had a myocardial infarction in April 1988.

In severing service connection for CAD, the RO arrived at a different conclusion based on a reexamination of the facts as presented at the time of the May 2008 rating decision.

Although the RO concluded that service connection had been erroneously granted based on a misinterpretation of the VA examiner's opinion, the evidence when viewed retrospectively included differing medical opinions as to how the facts could weighed in May 2008.

In other words, as there was competent evidence that was both for and against the Veteran's claim in May 2008, a basis for a finding of CUE has not been presented in this case.

To the extent that any error was not clear and unmistakable, CUE cannot be found in the May 2008 rating decision that granted service connection for CAD.

Accordingly, on this record, the severance of service connection for CAD was not proper and must revised ab initio.


ORDER

As the severance of service connection is void, service connection for CAD is restored.


______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals

Department of Veterans Affairs

[kymike]

Carlie, this post was very helpful to clarify thoughts about my own cue claim for severance of service connection. I originally eluded to my claim issue in a 2011post. Should I go back to that post or start a one the VA cue?

[Berta]

I wondered at first Carlie, if that vet in the decision became a Nehmerino in August 2010 and if so, that could impact possibly in a positive way on his comp......

"However, in a May 2004 letter, the Veteran's physician opined that the
Veteran suffered an acute inferior wall myocardial infarction in 1988. A
December 2004 letter from the physician indicated more specifically
that the Veteran had a myocardial infarction in April 1988."

That could possibly be an actual EED under Nehmer Footnote one August 2010.In a similiar type of CAD case.

However,it appears he had no incountry Vietnam service at all..........

We have to look at these decisions with every potential scenario in mind...........but the BVA doesnt miss much......

I bet there are much more instances where CUE should have been filed on past decisions , that we will never know of.