Citation Nr: 0002125 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-12 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether a February 1956 Department of Veterans' Affairs (VA) regional office (RO) decision severing service connection for bronchial asthma was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from March 12, 1943 to May 27, 1943. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision by the VA RO in Buffalo, New York, which determined that there was no clear and unmistakable error in a February 1956 RO decision severing service connection for bronchial asthma. The case was previously before the Board in March 1999, at which time it was remanded to the RO to afford the veteran a Travel Board hearing. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. In a January 1944 RO decision, service connection was granted for bronchial asthma. 2. In a November 1955, the RO proposed to sever service connection for bronchial asthma; the RO notified the veteran of the proposed action on December 6, 1955, and, on finding of clear and unmistakable error in the original grant of service connection for asthma, severance was accomplished by a decision on February 8, 1956; the veteran did not appeal the February 1956 decision. 3. The January 1944 RO decision which granted service connection for bronchial asthma was undebatably erroneous as it was completely inconsistent with and unsupported by the evidence then of record, and the February 1956 RO decision which severed that service connection was not undebatably erroneous. CONCLUSIONS OF LAW The February 1956 RO decision severing service connection for bronchial asthma was not clearly and unmistakably erroneous. 38 C.F.R. §§ 3.9 (1955), 3.105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A rating decision becomes final if the veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.302 (1999). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.9 (1955). Clear and unmistakable error is the kind of error, of fact or 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, 43-44 (1993). Clear and unmistakable error in a prior adjudication exists when (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied;" (2) the error is undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) it is determined that the error was based on the record and the law that existed at the time of the prior decision. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). If clear and unmistakable error is established, the prior decision will be reversed and amended. Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service which is not the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110 (formerly § 310); 38 C.F.R. § 3.303(a). Service connection will be severed only where evidence establishes that the original grant of service connection was clearly and unmistakably erroneous, the burden of proof being upon the Government. 38 C.F.R. § 3.9 (d); also see 38 C.F.R. § 3.957 (discussing proof required when service connection has been in effect for 10 or more years and severance is undertaken after October 1968). Severance of service connection may be accomplished only after proper notification to the veteran with an opportunity to respond with additional evidence or argument. 38 C.F.R. § 3.9(d). A rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.9 (1955); see also 38 C.F.R. § 3.105 (1999). As to the propriety of the RO's severance of service connection for bronchial asthma, the Board first looks to the evidence that was on file at the time of the RO's January 1944 decision which granted service connection for bronchial asthma. Some twelve days after induction, the veteran was hospitalized for treatment of a bronchial condition. X-rays afforded at that time did not show any evidence of emphysema and he was promptly discharged from the hospital. The medical evidence available in conjunction with the original rating included attending physician certificates from Charles E. Graney, M.D. and Paul Welch, M.D. dated in November 1943. Dr. Graney's certificate was to the effect that he had treated the veteran prior to and after service and, upon entry into service, had pneumonitis followed by bronchial asthma. Dr. Graney added that the veteran's bronchial asthma recurred at fairly frequent intervals but showed marked improvement over the past three months. Dr. Welch's certificate indicated that the veteran had chronic bronchitis and asthma prior to service and that his stay in the army did not aggravate the condition. Thus, the evidence before the RO did not reasonably support a conclusion that the veteran's bronchial asthma was incurred in or aggravated by service. Notwithstanding, in the January 1944 decision, the RO granted service connection for bronchial asthma on the basis that the condition was incurred in service. There is no medical opinion of record which states that the veteran's asthma was proximately due to or the result of his service. In its proposal to sever service connection, the RO summarized the above evidence; the veteran was duly notified and provided a 60 day period to present additional evidence. He failed to respond, and the February 1956 decision severed service connection for bronchial asthma. 38 C.F.R. § 3.9. In this case, the RO properly notified the veteran of the proposed severance of service connection, and the veteran did not submit additional evidence in support of the claim. Moreover, the veteran did not appeal that decision. Thus, the decision may not be revised unless the veteran can demonstrate that the termination of constituted clear and unmistakable error. The veteran advances the argument that his bronchial asthma did not precede service and was not aggravated therein. Rather, his current argument is that his asthma originated in service as a result of exposure to a coal stove. This argument is unsupported by any medical opinion. The Board notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Notwithstanding, even if the veteran could now establish that a nexus existed between his proximity to a coal stove and the development of bronchial asthma, the Board notes that no such association was suggested by the evidence in 1944 when service connection was granted or when service connection for bronchial asthma was severed in 1956. Accordingly no basis for a finding that the RO committed clear and unmistakable error in the 1956 rating determination has been submitted. To find clear and unmistakable error, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at the time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination of clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication, Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). The January 1944 RO decision which granted service connection for bronchial asthma undebatably shows that it was completely inconsistent with and unsupported by the evidence then of record. A review of the evidence of record at the time of the February 1956 RO decision severing service connection does not show that the correct facts, as they were known at the time, were not before the adjudicator or that the law in effect at the time was incorrectly applied, and the February 1956 RO decision which severed that service connection was not undebatably erroneous. Accordingly, the appeal must be denied. ORDER The RO did not commit clear and unmistakable error in its February 1956 rating decision which severed service connection for bronchial asthma. R. F. WILLIAMS Member, Board of Veterans' Appeals