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A severance of DIC claim...but restored



I was seeking other info at the BVA and this popped up in the search feature:


In part it reads:

"The Board finds that the AOJ, prior to severing service connection, did not obtain a medical opinion showing that in light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous, as required by governing regulation. The evidence does not establish that the December 2015 rating decision was undebatably erroneous in concluding that the primary cause of the Veteran's death was ischemic cardiomyopathy, which is a disease subject to presumptive service connection based on exposure to an herbicide agent in service.

Noncompliance with the provisions of 38 C.F.R. § 3.105 (d) prior to severance renders the severance of service-connection for the cause of the Veteran’s death void. Accordingly, the benefit is restored. 38 U.S.C. §§ 1110, 5112(a); 38 C.F.R. §§ 3.105 (d). "

Get the spouse up to speed on your PC because ,otherwise, the VA can pull a lot of crap on them.

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Superb, Berta.    Since Veterans are often worried about losing their benefits, Im gonna post the regulation they cited to show how difficult it is for VA to reduce you.  (Tho, I expect them to try.  You just need to not let them get away with violating their own regulations).  Remember, there are other regulations protecting Veterans, other than this one, 38 cfr 3.105 d:


(d) Severance of service connection. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (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. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 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.

In short, the VA has to prove CUE, AND, they must send you a proposed reduction and give you 60 days to present additional evidence.  

Edited by broncovet
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