Citation Nr: 1043542 Decision Date: 11/19/10 Archive Date: 11/24/10 DOCKET NO. 07-33 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether the severance of service connection for type 2 diabetes mellitus was proper. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from January 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that severed service connection for type 2 diabetes mellitus. The Veteran subsequently relocated, and in September 2007, the claims folder was transferred to the Buffalo, New York, RO. The Veteran testified in a hearing before an RO Decision Review Officer (DRO) in August 2008. FINDINGS OF FACT The record does not contain evidence establishing that the grant of service connection for type 2 diabetes mellitus was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria to sever service connection for the Veteran's type 2 diabetes mellitus have not been met, and service connection must be restored. 38 U.S.C.A. §§ 1110, 1154(a), 5109 (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.304(d), 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is contending that the RO's severance of service connection for type 2 diabetes mellitus was improper. Initially, the Board finds that the RO complied with its notification obligations under 38 C.F.R. § 3.105(d). In particular, the RO proposed to sever service connection for type 2 diabetes mellitus in a November 2004 rating decision. The RO advised the Veteran of the proposed severance by a May 2005 letter, which also informed him that he could request a hearing within 30 days and submit evidence within 60 days of the proposed severance. The Veteran subsequently submitted further evidence in support of his claim, but he did not request a hearing. Accordingly, the RO issued the August 2006 rating decision (on appeal), severing service connection for type 2 diabetes mellitus, effective November 1, 2006, which, the Board notes, followed the last day of the month in which the 60-day period from date of notice of the rating decision expired. See 38 C.F.R. § 3.105(d). Accordingly, the remaining issue on appeal is whether the severance of service connection was proper based on the evidence of record. Once service connection has been granted, it can be severed only where the evidence establishes that the grant is clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met. Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law. Stallworth v. Nicholson, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In Stallworth, the United States Court of Appeals for Veterans Claims (Court) recognized that 38 C.F.R. 3.105(d) contemplates consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision. Id. at 488; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). In fact, the Court noted that the regulation specifically allows a change in medical diagnosis to serve as a basis for severance. Indeed, in Stallworth, the Court, quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997), reiterated, "If the Court were to conclude that . . . a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record." Id. at 488. The Stallworth Court added, "Consequently, the severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current evidence established that service connection is clearly erroneous." Id. (Emphasis in original). The Court has stated that clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth; Allen. Here, the Board finds that the evidence is not undebatable that the Veteran did not meet the criteria for an award of service connection for type 2 diabetes mellitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, to include type 2 diabetes (also known as type 2 diabetes mellitus or adult- onset diabetes), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Haas v. Peake, 525 F.3d 1168, 1191 (Fed. Cir. 2008) upheld VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring actual service on land in Vietnam. In the present case, the evidence establishes that the Veteran is diagnosed with type 2 diabetes mellitus. The RO granted service connection for the disorder based on a determination that the Veteran had service in the Republic of Vietnam during the Vietnam era. In severing service connection, the RO determined that the record did contain evidence corroborating that he actually set foot in Vietnam. The Veteran testified at an August 2008 DRO hearing that he was stationed in Japan in 1966, when he volunteered for temporary duty (TDY) to Thailand. On the flight to Thailand, one leg of the trip took him to Ton Son Nhut Air Force Base in the Republic of Vietnam, where he had to stay overnight to wait for a connecting flight. He also testified at his DRO hearing that he set foot in the Republic of Vietnam again during the return trip while changing planes at Da Nang. The Veteran's testimony, which the Board finds credible and competent, constitutes direct evidence indicating that he visited Vietnam, even if only briefly. See Dalton v. Nicholson, 21, Vet. App. 23 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The record does not contain any independent evidence specifically corroborating the Veteran's assertions. In fact, in February 2008, a U.S. Air Force Archivist wrote a detailed letter explaining that he had researched the Veteran's claim, but found nothing to confirm the details of the Veteran's account. The Board recognizes that the Archivist's February 2008 letter may weigh against the Veteran's assertions. It does not, however, confirm that the Veteran did not set foot in Vietnam. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (citing Forshey v. Principi, 284 F.3d 1335, 1363 (Fed.Cir.2002) (en banc) (Mayer, C.J., and Newman, J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence' ")). Moreover, the absence of corroborating evidence alone does not discount the credibility of the Veteran's assertions. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In any event, the Veteran's service records show that he served in Japan in 1966 with TDY to Southeast Asia from July 1966 to October 1966. This evidence is consistent with the Veteran's assertions and tends to support his claim. In light of this evidentiary record, the Board finds that the issue of whether the Veteran set foot in the Republic of Vietnam during the Vietnam era is at least debatable. For this reason, the record does not contain clear and unmistakable evidence establishing that the grant of service connection for type 2 diabetes mellitus was clearly and unmistakably erroneous. See Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. Therefore, the severance of service connection on the basis of CUE was not proper, and the claim to restore service connection for type 2 diabetes mellitus is granted. See 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309. In this decision, the Board restores service connection for the Veteran's type 2 diabetes mellitus, which constitutes a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. ORDER Severance of service connection not being proper, service connection for type 2 diabetes mellitus is restored. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs