CORRECTED COVERSHEET:September 26,2007 

United States Court of Appeals for the Federal Circuit 

2006-7313 

MONSERRATE C. ANDINO, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

Respondent-Appellee. 

 Daniel D. Wedemeyer, Wedemeyer & Prangley, of West Hills, California, argued 

for claimant-appellant. On the brief was Glenn R. Bergmann, Bergmann & Moore, LLC 

of Bethesda, Maryland. 

 Dawn S, Conrad, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, and 

Deborah A. Bynum, Assistant Director. Of counsel on the brief were David J. Barrans, 

Assistant General Counsel, and Jamie L. Mueller, Attorney, United States Department 

of Veterans Affairs, of Washington, DC. 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge Lawrence B. Hagel 
United States Court of Appeals for the Federal Circuit 

2006-7313 

MONSERRATE C. ANDINO, 

 Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

____________________________ 

DECIDED: September 10, 2007 

____________________________ 

Before MAYER, RADER, and MOORE, Circuit Judges. 

MOORE, Circuit Judge. 

Monserrate C. Andino appeals an order of the Court of Appeals for Veterans 

Claims (Veterans Court) affirming a 2003 decision of the Board of Veterans’ Appeals 

(Board) that found no clear and unmistakable error (CUE) in a 1975 Board decision 

upholding a Regional Office (RO) determination severing service connection for 

schizophrenia. Andino v. Nicholson, No. 03-1865 (Vet. App. Mar. 16, 2006). Because 

the Veterans Court erroneously interpreted 38 C.F.R. § 3.105(d), the regulation 

governing severance of service connection, we vacate and remand. 

BACKGROUND 

Mr. Andino served on active duty from January 1969 to November 1970. One 

month after separation from the Army, in December of 1970, a VA physician diagnosed 

Andino with undifferentiated schizophrenic reaction. The same VA physician rendered 
the same diagnosis (schizophrenia) again in January 1971 when Andino was admitted 

to the psychiatric unit of a VA hospital. In March and then again in May 1971, 

physicians diagnosed Andino with schizophrenic reactions, undifferentiated. In an 

October 1971 rating decision, a VA RO granted 100% service connection for 

schizophrenia, undifferentiated. The rating decision noted that while a diagnosis of 

anxiety reaction had also been made after a period of hospitalization from January 13 to 

February 10, 1971, that diagnosis was “subject to reservations about a possible 

underlying schizophrenic process.” The rating decision also noted that the last hospital 

report shows schizophrenia with persistent “marked active symptoms” despite some 

improvement and “less frequent hallucinations.” 

However, in February 1973, the RO severed this service connection, finding clear 

and unmistakable error (CUE) in the decision awarding connection. It based this 

determination on an unsolicited 1972 letter from Dr. Durand at the VA hospital in San 

Juan, Puerto Rico—which stated that Andino had been “admitted twice to our Service” 

and that the prior diagnosis of schizophrenia at that hospital was “in error.” Andino 

appeals the decision severing service connection. 

DISCUSSION 

We have exclusive jurisdiction to “review and decide any challenge to the validity 

of any statute or regulation or any interpretation thereof” by the Veterans Court “and to 

interpret constitutional and statutory provisions, to the extent presented and necessary 

to a decision.” 38 U.S.C. § 7292(a), (c). The construction of a regulation is a question 

of law, reviewed de novo on appeal. Wallace v. Office of Pers. Mgmt., 283 F.3d 1360, 

1361 (Fed. Cir. 2002). 

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38 C.F.R. § 3.105 (1975) details the requirements for severance based on a 

change in diagnosis: 

(d) Severance of service connection. . . . 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. 

(Emphases added). The regulation was amended in 1961 to replace the language “not 

correct” with “clearly erroneous.” 26 Fed. Reg. 1569 (1961). 

The plain language of the regulation provides that service connection can only be 

terminated when a medical professional certifies that her review of all the evidence

indicates that the prior diagnosis is “clearly erroneous.”1

 Under the uncontested facts of 

this case, there were at least five diagnoses of schizophrenia or symptoms of an 

underlying schizophrenic process and a single diagnosis of an anxiety reaction (which 

did not preclude schizophrenia as well) before the VA when it rendered its original rating 

 1

 It is not enough that the VA conclude that it would have decided the issue 

differently had it been analyzing all the evidence to determine whether to grant service 

connection in the first instance. To be “clearly erroneous” there must be a definite and 

firm conviction that a mistake has occurred. See Easley v. Cromartie, 532 U.S. 234, 

242 (2001) (“In applying [the clear error] standard, we, like any reviewing court, will not 

reverse a lower court’s finding of fact simply because we ‘would have decided the case 

differently.’ Rather, a reviewing court must ask whether, ‘on the entire evidence,’ it is 

‘left with the definite and firm conviction that a mistake has been committed.’” (internal 

citations omitted)); Concrete Pipe & Prods. of Ca., Inc. v. Constr. Laborers Pension 

Trust for S. Ca., 508 U.S. 602, 623 (1993) (Stating that “review under the ‘clearly 

erroneous’ standard is significantly deferential, requiring a ‘definite and firm conviction 

that a mistake has been committed’”); United States v. U.S. Gypsum Co., 333 U.S. 364, 

395 (1948) (Indicating that reversal of a finding under the clearly erroneous standard is 

proper only when the reviewing court “is left with the definite and firm conviction that a 

mistake has been committed.”). 

2006-7313 3
decision. The VA considered this evidence “as a whole,” including the anxiety 

diagnosis, and granted service connection for schizophrenia in October 1971.2

 

The VA’s decision to sever service connection in 1973 was based upon Dr. 

Durand’s 1972 letter in which he concludes that “the diagnosis of schizophrenia made at 

Hato Rey Psychiatric Hospital was in error” based upon the records from the two prior 

admissions to the Hato Rey Psychiatric Hospital. Section 3.105(d) states that a change 

in diagnosis can be the basis for severance if the “medical authority certifies that, in light 

of all accumulated evidence, the diagnosis on which service connection was predicated 

is clearly erroneous.” This regulation requires that the certifying medical authority must 

make a decision based upon all of the accumulated evidence. To the extent that the 

Board has interpreted section 3.105(d) as permitting severance to be based upon a 

medical opinion that considered some but not all of the evidence that was before the VA 

when it rendered its service connection decision, that construction is erroneous.3 

In this decision we are not making credibility determinations or weighing 

evidence—all of which is beyond our jurisdiction. We will not, and can not, reverse in 

light of the fact that there were five separate diagnoses of schizophrenia and one 

diagnosis of anxiety disorder (which did not preclude schizophrenia) or because Dr. 

Durand never treated Andino or because the two hospitalizations considered by the VA 

had both already been considered by the VA at the time of the original rating granting 

 2

 Andino was again diagnosed with schizophrenia in 1974, but this 

diagnosis occurred after both the 1971 rating decision granting service connection and 

the 1973 severance decision, so it was not considered by the VA. 

3

 The Veterans Court agreed with the Board that Durand’s letter constituted 

sufficient evidence to support the VA’s severance decision under section 3.105. 

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service connection. Even with a mountain of evidence which contradicts a fact finding, 

we cannot disturb this finding on appeal. 

However, where the Board and the Veterans Court interpret section 3.105(d) as 

permitting severance on the basis of a physician letter that did not consider all the 

evidence accumulated by and considered by the VA in granting the original service 

connection, this interpretation is erroneous. 

VACATED and REMANDED