                 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 respondent-
appellee. 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).




2006-7313                                   2
       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.


2006-7313                                     4
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




2006-7313                                       5
