McCauley: The Burden in a Severance Case

McCauley v. McDonough, Opinion Number 23-1692, was decided May 20, 2024 by the Veterans Court and concerns a proposed severance of service connection.

The veteran was granted service connection for diabetes, coronary artery disease and other associated residuals.  However, the VA subsequently found CUE in the grants and sought to sever the rating.  This case presented a unique question to the Veterans Court: “if service connection was granted on one theory that was later found to be clearly and unmistakably erroneous, must the Board address alternative theories of entitlement that are raised by the claimant or reasonably raised by the record before upholding severance of service connection? As we explain, we hold that it must. This means that the severance standards of 38 C.F.R. § 3.105(d) require that the Secretary prove that service connection cannot be granted or maintained under any reasonably raised theory for severance of service connection to be proper.”  Id. at *1. 

The Court then applied this to the facts of the case and determined the Secretary did not meet his burden.  It noted the VA specifically flagged the need to address Camp Lejeune with regard to this appeal, but never did and the Board found the severance proper. 

The Court then framed the issue as: “must the Board address alternative theories of entitlement before upholding severance of service connection? In other words, what is the extent of the Secretary's burden in severance cases—must he prove only that service connection on the theory under which it was granted is erroneous, or must he also prove that service connection cannot be granted based on any theory raised by the claimant or the record?”  Id. at *4.  It also noted when service connection is severed despite the Secretary not meeting its burden, the severance is void ab initio—a legal nullity and the proper remedy is for the Court to reverse with instructions to reinstate service connection retroactive to the date of severance.  Id. at *4-5.

The Court then addressed the VA’s burden and noted

“Unlike CUE, severance is anchored in the present. As the regulation says, "service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous." 38 C.F.R. § 3.105(d) (emphasis added). This means that the Secretary must prove that it is currently clearly and unmistakably erroneous for the claimant to be service connected.  This means that the Secretary's job is not done if he only shows that the theory on which service connection was originally granted was erroneous—that would not necessarily prove that maintaining service connection is clearly erroneous. To prove that service connection is currently clearly erroneous, the Secretary needs to show that service connection cannot be granted or maintained under any theory. After all, if unresolved theories could maintain service connection, the Secretary cannot show that service connection "is clearly and unmistakably erroneous." 38 C.F.R. § 3.105(d).”

Id. at *5-6.

The Court noted the VA is not required to consider every conceivable alternative theory, but those raised by the veteran or the record.  Id. at *6.  In other words, “Tying this all together, we see that in considering whether severance of service connection is proper, the Board must address alternative theories of entitlement that are raised by the claimant or reasonably raised by the record. If the Board upholds a severance decision without doing so, it has failed to satisfy the severance standards of § 3.105(d). And this means that the severance is void ab initio.”  Id. at *6.

This is a case that fully explains the Secretary’s burden in a severance case.  What is most interesting is that the Secretary argued so hard for remand as opposed to reversal with instructions to reinstate service connection.  The VA seems to still not understand that an improper severance (or for that matter reduction) is a legal nullity—it is as if it hadn’t happened.  Also interesting is that Judge Falvey who is typically solicitous to the VA appeared to have reached his end point with the VA with this case.

Opinion by Judge Falvey and joined in by Judges Meredith and Jaquith.

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