Citation Nr: 1004383 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 05-22 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Whether the severance of service connection for Type II diabetes mellitus (with associated complications including hypertension, early diabetic renal disease, non- proliferative diabetic retinopathy, and tinea pedis of the feet) effective January 1, 2005, was proper. 2. Whether the severance of service connection for erectile dysfunction, to include special monthly compensation on account of loss of use of creative organ, secondary to diabetes mellitus effective January 1, 2005, was proper. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD M. Zawadzki, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to April 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, in which the RO severed service connection for Type II diabetes with associated complications and erectile dysfunction, to include special monthly compensation on account of loss of use of creative organ, effective January 1, 2005. In November 2007, the Board remanded these claims for further development. That development has been completed. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. The evidence of record does not establish that the award of service connection for Type II diabetes mellitus, with associated complications, was clearly and unmistakably erroneous. 3. The evidence of record does not establish that the award of service connection for erectile dysfunction, to include special monthly compensation on account of loss of use of creative organ, was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of the award of service connection for Type II diabetes mellitus, with associated complications, was improper. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.105(d), 3.307, 3.309 (2009). 2. The severance of the award of service connection for erectile dysfunction, to include special monthly compensation on account of loss of use of creative organ, was improper. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.105(d), 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim. Given the favorable disposition of the claims on appeal, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. Law and Regulations 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. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006). The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 38 C.F.R. § 3.310(b) (2009). Once service connection has been granted, it can be severed only upon VA's showing that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d); see also Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Clear and unmistakable error (CUE) is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 310, 313 (1992). The error must be undebatable and of the sort that, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. When VA seeks to sever service connection, the provisions of 38 C.F.R. § 3.105(d) impose the same burden of proof that is placed on a claimant who, pursuant to 38 C.F.R. § 3.105(a), seeks to have an unfavorable decision overturned, except that in making the determination of whether severance of service connection is proper, the review of the record is not limited to evidence that was before the RO at the time the original adjudication was made. See 38 C.F.R. § 3.105(d); Baughmann v. Derwinski, 1 Vet. App. 563, 566 (1991); Stallworth, 20 Vet. App. at 488; Daniels, 10 Vet. App. at 480. Accordingly, to determine whether CUE was present in a prior decision, either the correct facts, as they were known at the time, must not have been before the adjudicator (i.e., more than a simple disagreement of how the facts were applied) or the statutory and regulatory provisions extant at the time must have been incorrectly applied. Factual Background and Analysis In January 2002, the Veteran's representative filed an informal claim for service connection for diabetes secondary to the Veteran's service in Vietnam. The Veteran filed his formal claim for service connection in May 2002. In his claim, he asserted that he had Type II diabetes due to exposure to Agent Orange or another herbicide. He added that he was exposed to herbicides in Vietnam. He reported that he served in Vietnam from May 28, 1972 to "May 17, 1971." The Veteran's Form DD 214 reflects that he served in Vietnam from May 28, 1972, to July 11, 1972. His military service awards include the Vietnam Service Medal. His military occupational specialty was an electrician. An August 2002 VA diabetes mellitus examination included diagnoses of adult-onset diabetes mellitus in an Agent Orange-exposed Veteran; nonproliferative diabetic retinopathy; tinea pedis of the feet, directly related to diabetes; early diabetic renal disease; and erectile dysfunction. In the examination report, the examiner opined that erectile dysfunction was directly related to the Veteran's long-standing diabetes. The examiner also noted that the Veteran had no vascular problems, but did suffer from hypertension. Based on the fact that his Form DD 214 reflected service in Vietnam, and the findings on VA examination, in an October 2002 rating decision, the RO granted service connection for Type II diabetes mellitus with associated complications, specifically, hypertension, early diabetic renal disease, nonproliferative retinopathy, and tinea pedis of the feet associated with herbicide exposure, based on presumed herbicide exposure. The RO also granted service connection for erectile dysfunction, secondary to diabetes, and awarded SMC based on loss of use of a creative organ. The Veteran's service personnel records were associated with the claims file in March 2003, in conjunction with a claim for service connection for posttraumatic stress disorder (PTSD). These service personnel records reflect that the Veteran departed San Francisco on April 26, 1972, and arrived in Tokyo, Japan, on April 27, 1972. The Veteran departed Yokota Air Force Base, Japan, on May 1, 1972, and arrived in Iwakuni, Japan, the following day. He then departed Iwakuni on May 27, 1972, and arrived in Nam Phong, Thailand on May 28, 1972. The Veteran participated in combat support operations with Task Force Delta, Nam Phong, Thailand, from May 28, 1972 to July 11, 1972. These records reflect that the Veteran was assigned to Marine Air Base Squadron-15, Marine Aircraft Group-15 from May 2, 1972 to July 31, 1972. He was assigned to Marine Air Base Squadron- 15, Marine Aircraft Group-15, 1st Marine Aircraft Wing from January 31, 1972 to April 22, 1973. His primary duty was electrician. In June 2004, the RO asked the National Personnel Records Center (NPRC) to furnish the Veteran's dates of service in Vietnam. In a July 2004 response, the NPRC indicated that it was unable to determine whether or not the Veteran had in-country service in Vietnam, but was sending copies of information from the Veteran's file to assist in making a determination. The documents furnished by NPRC included a copy of the DD 214, and copies of some of the service personnel records associated with the claims file in March 2003. In a July 2004 rating decision, the RO proposed to sever service connection for Type II diabetes mellitus, with associated conditions, and erectile dysfunction, to include SMC, based on a finding that the record did not document actual service in Vietnam. In the October 2004 rating decision, the RO severed service connection, as proposed in July 2004. In his November 2004 notice of disagreement, the Veteran argued that he was Medevaced to Japan in 1973, with a stopover in Vietnam. He submitted a copy of his report of hospitalization in Japan in January and February 1973, and a copy of his January 1973 Travel Order to Japan for medical treatment. This order states that, upon completion of medical treatment, the Veteran was to return to Nam Phong, Thailand. In correspondence received in October 2005, the Veteran's representative specified that the Medevac flight to Japan had a stopover in Tan Son Nhut, Vietnam. In his October 2005 VA Form 646 (Statement of Accredited Representative in Appealed Case), the Veteran's representative stated that the Veteran had indicated that he was sent into Vietnam on more than one occasion to retrieve military equipment. In November 2007, the Appeals Management Center (AMC), requested that the NPRC furnish the entire personnel file and verify the Veteran's claimed service in Vietnam, to include any evidence that he stopped in Vietnam during a Medevac flight in January or February 1973. The request indicated that the Marine Corps Liaison should specifically be contacted for assistance in verification of the Veteran's Vietnam service. The NPRC was also asked to search for any DD Form 1351 (or its predecessor) or TRAVCHARAPPN JASMRO CITE: 0173-278-3 to attempt to verify the dates and stops during the Medevac flight from Nam Phong, Thailand to the U.S. Naval Hospital in Yokosuka, Japan, on or about January 28, 1973. In a January 2008 response, the NPRC indicated that it was unable to determine whether or not the Veteran served in the Republic of Vietnam, but it was furnishing copies of pertinent documents or information to assist in making a determination. These records include a June 1972 letter from the Veteran's wife regarding allotment checks, in which she stated that the Veteran was stationed with the First Marine Division in Thailand. In January 2009, the AMC contacted the Marine Corps History Division and asked that office to verify the Veteran's claimed service in Vietnam, to include any evidence that he stopped in Vietnam during a Medevac flight to Yokosuka, Japan, in January or February 1973. A copy of the January 1973 travel order was enclosed. The Marine Corps responded later that month, indicating that Command Chronologies covering the Vietnam Era had been permanently transferred to the National Archives, and that the same files were available through Virtual VA. The AMC subsequently printed and associated with the claims file Command Chronologies for Marine Air Base Squadron-15 (MABS-15) from January to July 1972. In addition, in September 2009, the AMC asked the National Archives to verify whether the Veteran set foot in Vietnam or its inland waters at any point from May 2, 1972 to April 23, 1973, to include a stopover during his Medevac flight to Japan. In a response dated later that month, the National Archives indicated that its holding of Marine Corps unit records for the period of the Vietnam War consisted almost entirely of command chronologies and, because the AMC had apparently already unsuccessfully searched the chronology, it had no other relevant records, and could not provide any assistance. The command chronologies for the Marine Air Base Squadron 15 (MABS-15), Marine Aircraft Group 15, reflect that, on May 28, 1972, an advance party from MABS-15 deployed to a classified area. During the period from June 5-15, 1972 the entire MABS-15 deployed to a classified area, with the exception of a small number of personnel remaining in the Rear, and a combat support element from MABS that was located in DaNang, Vietnam. During July 1972, the Veteran's unit continued in support of combat operations and the buildup at Nam Phong Air Base in Thailand. The Command Chronology for Task Force Delta, for the period from January through June 1972, reflects that this unit was located in Iwakuni, Japan, from January 1-June 6, 1972, and was located at Nam Phong Air Base, in Thailand, from June 7-30, 1972. From April 8-June 24, 1972, MABS-15 supplied personnel and equipment in support of combat operations to DaNang, Vietnam. The sequential listing of significant events indicates that, on April 25, 1972, a portion of MABS-15 deployed to DaNang, in support of MAG-15. On May 26, an advance party deployed to Nam Phong, in support of MAG-15. Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that the severance of service connection for Type II diabetes mellitus, with associated conditions, was improper. Initially, the Board notes that the RO complied with its notification obligations under 38 C.F.R. § 3.105(d). In this regard, the RO proposed to sever service connection for Type II diabetes mellitus and erectile dysfunction in the July 2004 rating decision. The Veteran was advised of the proposed severance by a July 27, 2004 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 RO then issued the October 2004 rating decision, severing service connection for Type II diabetes mellitus and erectile dysfunction, effective January 1, 2005, 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). In short, the RO satisfied the procedural requirements of 38 C.F.R. § 3.105(d). Accordingly, the remaining issue is whether the severance itself was proper in accordance with the applicable law and regulations. As mentioned above, the evidence must establish that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d). In other words, the evidence must be undebatable that the Veteran did not meet the criteria for an award of service connection. This is a much higher burden of proof than that which is necessary for simply denying a veteran's claim for service connection. In the latter case, all that is essentially required is that the evidence show that it is less likely than not that the veteran meets the service connection criteria (i.e. that the preponderance of the evidence is against the service connection claim). See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In the instant case, it is clearly established that the Veteran has Type II diabetes mellitus, with associated conditions including hypertension, early diabetic renal disease, non-proliferative diabetic retinopathy, and tinea pedis of the feet, and erectile dysfunction secondary to Type II diabetes mellitus. Thus, as his claim for service connection is based on herbicide exposure, the only remaining question is whether he actually served in Vietnam, and, as such, herbicide exposure may be presumed. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. In this regard, while the Form DD 214 reflects that the Veteran served in Vietnam from May to July1972, service personnel records associated with the claims file subsequent to the October 2002 rating decision reflect that the Veteran served in Thailand during that period. The claims file does not contain any actual documentation that the Veteran served in Vietnam. In this regard, service treatment records do not reflect any service in Vietnam, and service personnel records confirm only that the Veteran participated in combat support operations with Task Force Delta, Nam Phong, Thailand, from May 28, 1972 to July 11, 1972. While the Veteran has asserted that his Medevac flight from Thailand to Japan, in January 1973 stopped in Vietnam, where he disembarked the plane, requests to the NPRC, Marine Corps, and National Archives did not yield any verification of his reported stop Vietnam. Nevertheless, in the absence of any evidence which disproves the Veteran's assertion that his service included visitation to Vietnam, or renders such assertion non-credible, the Board cannot find that it is undebatable that the Veteran's service did not include visitation to Vietnam. Accordingly, as it is shown that the Veteran has diabetes, and as there is not clear and unmistakable evidence that the Veteran did not have service in Vietnam, severance of service connection for Type II diabetes mellitus is not warranted. 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309. After a careful review of the evidence, the Board finds that the high evidentiary burden of showing clear and unmistakable error in the grant of service connection for Type II diabetes mellitus, with associated conditions, has not been met in this case. In short, while the record contains no definitive evidence showing that the Veteran performed active service in the Republic of Vietnam, there is no clear and unmistakable evidence showing that he did not have such service. The Board also recognizes that the claims file includes responses from the NPRC indicating that it was unable to determine whether the Veteran had in-country service in the Republic of Vietnam. While these responses are further evidence that the nature of the Veteran's service could not be confirmed, they are not sufficient to overcome the burden of showing by clear and unmistakable evidence that the Veteran did not have the requisite service. The Board further notes that based on the fact that service connection has been restored for Type II diabetes mellitus, the evidence of record does not clearly and unmistakably support the severance of service connection for erectile dysfunction, to include special monthly compensation on account of loss of use of creative organ, secondary to diabetes. Therefore, severance was improper, and service connection for erectile dysfunction, to include special monthly compensation on account of loss of use of creative organ, secondary to diabetes mellitus, must also be restored. ORDER Severance of service connection for Type II diabetes mellitus (with associated complications including hypertension, early diabetic renal disease, non- proliferative diabetic retinopathy, and tinea pedis of the feet), as of January 1, 2005, was improper, and service connection is restored. Severance of service connection for erectile dysfunction, to include special monthly compensation on account of loss of use of creative organ, secondary to diabetes mellitus, as of January 1, 2005, was improper, and service connection is restored. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs