Citation Nr: 1103631 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 09-15 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. The propriety of the severance of service connection for diabetes mellitus, type II. 2. The propriety of the severance of service connection for coronary artery disease. 3. Whether there was clear and unmistakable error in an October 2003 rating decision which granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 4. Whether there was clear and unmistakable error in an October 2003 rating decision which granted basic eligibility for Dependents' Educational Assistance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to June 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. A July 2001 rating decision granted service connection for diabetes mellitus, type II, on a presumptive basis as a result of inservice exposure to herbicides. 2. A May 2003 rating decision granted service connection for coronary artery disease, secondary to service-connected diabetes mellitus, type II. 3. An October 2003 rating decision granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU); and granted basic eligibility for Dependents' Educational Assistance. 4. At the time of the July 2001 rating decision, it was debatable, regardless of the Veteran having been awarded a Republic of Vietnam Campaign Medal or not, as to whether the Veteran was exposed to herbicides during his military service. CONCLUSIONS OF LAW 1. The criteria to sever service connection for the Veteran's diabetes mellitus, type II, were not met; and service connection is restored. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5109A, 5112 (West 2002 & Supp. 2009); 38 C.F.R. § 3.105(d) (2010). 2. The criteria to sever service connection for the Veteran's coronary artery disease were not met; and service connection is restored. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5109A, 5112 (West 2002 & Supp. 2009); 38 C.F.R. § 3.105(d) (2010). 3. The October 2003 rating decision which granted TDIU did not contain clear and unmistakable error (CUE); and entitlement to TDIU is restored. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5109A, 5112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104, 3.105 (2010). 4. The October 2003 rating decision which granted basic eligibility for Dependents' Educational Assistance did not contain CUE; and entitlement to basic eligibility for Dependents' Educational Assistance is restored. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5109A, 5112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104, 3.105 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant of the information or evidence necessary to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b). In cases involving the severance of service connection, which is an action initiated by the RO as opposed to the Veteran, there are particular notification and assistance procedures that VA must perform. 38 C.F.R. § 3.105(d). In the decision below, the Board has restored service connection for diabetes mellitus, type II, and coronary artery disease. The Board has also restored the Veteran's entitlement to TDIU and basic eligibility for Dependents' Educational Assistance. Accordingly, regardless of whether VA successfully met its notification and assistance obligations, no harm or prejudice to the Veteran has resulted. In April 2001, the Veteran submitted his original claim seeking service connection for diabetes mellitus, type II. Specifically, he alleged that he was exposed to herbicides while he was serving on temporary duty at the U-Tapao Air Force Base in Thailand. He indicated that while unloading a KC-135, it was discovered that a couple of 55 gallon drums had been leaking. He noted that a decision was made to strip out the entire insides of the plane in order to clean up the spill. After working on thoroughly cleaning out the plane for more than 35 hours, he indicated that a HAZMAT team arrived to complete this task. Finally, he reported that he was informed by a member of the HAZMAT team that the leaking drums contained herbicides. The Veteran's report of separation, Form DD 214, listed his inservice specialty as Aircraft Maintenance Specialist. Moreover, his service personnel records confirm that he did serve in Thailand. By rating decision in July 2001, presumptive service connection was established for diabetes mellitus, type II, based on the Veteran's inservice exposure to herbicides. Specifically, the RO found that the Veteran had been awarded the Republic of Vietnam Campaign Medal; and that this established the Veteran's service in Vietnam, and hence, his exposure to herbicides was conceded. See 38 C.F.R. §§ 3.307, 3.309. No reference was made to the Veteran's alleged exposure to herbicides while in Thailand. A May 2003 rating decision granted service connection for coronary artery disease, secondary to the Veteran's service- connected diabetes mellitus, type II, effective from December 2002. Thereafter, an October 2003 rating decision granted entitlement to TDIU and basic eligibility to Dependents' Educational Assistance. At the time of the October 2003 rating decision, diabetes mellitus, type II, and coronary artery disease, secondary to diabetes mellitus, type II, were the Veteran's only service-connected conditions. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous, with the burden of proof being upon the Government. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. If additional evidence is not received within that period, final rating action will be taken. 38 U.S.C.A. §§ 5109A, 5112(b)(6) (West 2002); 38 C.F.R. § 3.105(d) (2010). "Clear and unmistakable error" is defined as 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 later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed a the time of the prior adjudication in question. Grover v. West, 12 Vet. App. 109, 111-112 (1999); Russell v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, supra at 43-44. The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE claim requires that the Veteran assert more than a disagreement as to how the facts were weighed or evaluated). Although the same standards applied in a determination of CUE in a prior decision are applied to a determination of whether a decision granting service connection was the product of CUE for the purpose of severing service connection, reviewable evidence in a severance claim is not limited to that which was before the RO in making its initial service connection award. Daniels v. Gober, 10 Vet. App. 474, 480 (1997). After reviewing the evidence of record, the RO severed service connection for diabetes mellitus, type II, and consequently the remaining benefits at issue herein, based upon a change in interpretation as to the significance of the Veteran having been awarded the Republic of Vietnam Campaign Medal during service. Nevertheless, at the time of the July 2001 rating decision, the Veteran had alleged that he was exposed to herbicides while cleaning out leaking 55 gallon drums contained inside a KC-135 which had landed at U-Tapao Air Force Base in Thailand. This allegation, which was not contested by the July 2001 rating decision, renders it debatable as to whether the Veteran was exposed to herbicides during his military service, regardless of the Veteran having been awarded a Republic of Vietnam Campaign Medal or not. In reaching this conclusion, the Board notes that the Veteran is competent to give evidence about what he experienced. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In addition, his report of separation, Form DD 214, listed his inservice specialty as aircraft maintenance specialist, which adds some credibility to the Veteran's contentions herein. Smith v. Derwinski, 1 Vet. App. 235 (1990) (finding that determination of credibility is a function of the Board). Moreover, the Veteran's service personnel records establish that he was stationed in Thailand during his military service. In addition, there is no evidence of record contradicting the Veteran's claim of exposure. While there are some current records available as to where herbicides had been used over the years, there is no conclusive evidence indicating whether or not herbicides were transported to Thailand. Under these circumstances, the Board concludes that the RO's July 2001 rating decision did not involve error that would undebatably lead to a different result if such error was corrected. After reviewing the Veteran's claims file, the Board finds that the evidence of record does not rise up to the required standard for severance of service connection for diabetes mellitus, type II, and service connection for diabetes mellitus, type II, is restored. Moreover, as the remaining issues on appeal were completely contingent on this severance, the criteria for severance of service connection for coronary artery disease and discontinuance of entitlement to TDIU and basic eligibility for Dependents' Educational Assistance are not met, and these benefits must also be restored. ORDER Service connection for diabetes mellitus, type II, is restored. Service connection for coronary artery disease is restored. Entitlement to TDIU is restored. Entitlement to basic eligibility to Dependents' Educational Assistance is restored. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs