Stallworth v.Shinseki, 742 F.3d 980 (Feb. 10, 2014)
SEVERING SERVICE CONNECTION – 38 C.F.R. § 3.105(d)
The regulation that provides for the severance of service connection does not require medical examiners to use specific language.
Service connection may be severed “if a medical professional certifies that his or her review of all accumulated evidence indicates that the prior diagnosis is clearly erroneous.” 742 F.3d at 983 (quoting 38 C.F.R. § 3.105(d)). The veteran in this case had been service connected for a mental condition. Following multiple psychiatric hospitalizations, four VA staff physicians concluded that the veteran did not have a mental illness and was “successfully manipulating transfer to various hospitals through ‘deceptive practices.’” Id. at 981-82. The four doctors opined that service connection had been awarded in error, and VA subsequently severed service connection based on clear and unmistakable error (CUE).
Following years of adjudication, the veteran appealed to the CAVC, arguing that the Board misapplied § 3.105(d) because the report from the four VA doctors did not meet the standard required for severing service connection. The CAVC affirmed the Board’s decision, and the veteran appealed to the Federal Circuit. The veteran argued that the CAVC misinterpreted § 3.105(d) by affirming a Board decision that relied on “a medical opinion that failed to certify that ‘in light of all accumulated evidence, the diagnosis upon which service connection was predicated is clearly erroneous.” Id. at 983. The Federal Circuit distinguished this case from Andino v. Nicholson, 498 F.3d 1370 (Fed. Cir. 2007), where the Court “held that service connection could not be severed based on a medical opinion that did not consider all accumulated evidence.” Id. Unlike that case, the CAVC found no error in the Board’s determination that severance was based on a medical opinion that considered all the accumulated evidence and that certified that the prior award of service connection was clear error – even though the doctors did not recite the exact language of the regulation. The Court stated that neither the regulation nor the case law requires the use of “magic words” to sever service connection, and that any such requirement “would elevate form over substance.” Id. at 983-84.