Citation Nr: 0629770 Decision Date: 09/20/06 Archive Date: 09/26/06 DOCKET NO. 04-15 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 1. Whether the severance of service connection for the veteran's diabetes mellitus, effective as of November 1, 2003, was proper. 2. Whether the severance of service connection for the veteran's arteriosclerotic heart disease, effective as of November 1, 2003, was proper. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. N. Hyland, Associate Counsel INTRODUCTION The veteran had active duty from March 1965 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a Board hearing at the RO in June 2006. The Board notes that at his June 2006 hearing, the veteran raised the issues of entitlement to service connection for prostate cancer and entitlement to a total evaluation based on individual unemployability (TDIU) due to service-connected disabilities. In light of the medical evidence of record of a current diagnosis of prostate cancer and with consideration of the recent U.S. Court of Appeals for Veterans Claims decision in Haas v. Nicholson, No. 04-491 (U.S. Vet. App. Aug. 16, 2006), which allows for presumption of exposure to herbicides in certain situations when the claimant served in the waters off the coast of Vietnam and received the Vietnam Service Medal, a claim of service connection for prostate cancer is raised by the record and it is referred to the RO for any indicated development followed by adjudication. The Board also refers the claim for a TDIU to the RO for appropriate action. FINDINGS OF FACT 1. The evidence of record does not establish that the award of service connection for the veteran's diabetes mellitus was clearly and unmistakably erroneous. 2. The evidence of record does not establish that the award of service connection for the veteran's arteriosclerotic heart disease was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of service connection for the veteran's diabetes mellitus was improper. 38 C.F.R. §§ 3.105(d), 326(a) (2006). 2. The severance of service connection for the veteran's arteriosclerotic heart disease was improper. 38 C.F.R. §§ 3.105(d), 3.326(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2006). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. 38 C.F.R. § 3.159(a)(5) (2006). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2006). As discussed in more detail below, sufficient evidence is of record to grant this appeal. Therefore, no further development is needed. II. Analysis The veteran's service personnel records indicate that he served in Vietnam on a Navy ship and received the Vietnam Service Medal with Bronze Star. The National Personnel Records Center (NPRC) notes that the veteran was attached to a Navy unit that could have been assigned to ship or shore and that for Department of Defense purposes, his unit was credited with Vietnam service from May 4, 1969 to May 14, 1969. The NPRC noted that there is no conclusive proof of his physical presence in Vietnam during his service period. Treatment reports contain evidence of a current diagnosis of diabetes mellitus type II and arteriosclerotic heart disease as secondary to diabetes mellitus. On February 19, 2002, the RO granted service connection for diabetes mellitus and arteriosclerotic heart disease based on the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 for veterans who served in Vietnam and were exposed to herbicides. In May 2003, the VA proposed to sever service connection for the veteran's diabetes mellitus and secondary arteriosclerotic heart disease because there was no "conclusive evidence" showing that the veteran served on land in Vietnam. In August 2003, the VA implemented the proposed severance of service connection for the veteran's diabetes mellitus and arteriosclerotic heart disease effective as of November 1, 2003. The provisions of 38 C.F.R. § 3.105 (2005) direct, in pertinent part, that: subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) 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. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. In order to sever a grant of service connection, the VA must demonstrate that the grant was clearly and unmistakably erroneous and that the VA has followed the applicable procedural safeguards. The evidentiary standard for clear and unmistakable error (CUE) has been analyzed in a number of the Court's opinions. Most of these address the appeals of claimants seeking a finding of CUE in a past denial of benefits. However, the Court has held that the standard is equally applicable to VA where the issue is severance of service connection based on CUE. Once service connection has been granted, section 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof. Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned."). There is a three-part test to determine whether a prior decision is the product of CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Wilson v. West, 11 Vet. App. 383, 386 (1998). The Court has clarified that although the same standards applied in a determination of CUE in a final decision are applied to a determination whether a decision granting service connection was the product of CUE for the purpose of severing service connection, § 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. In fact, § 3.105(d) specifically states that "[a] change in diagnosis may be accepted as a basis for severance," clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). The applicable statutory law and implementing regulations at the time of the RO's February 2002 rating decision stated that service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). Where a veteran was exposed to an herbicide agent during active military, naval, or air service, and diabetes mellitus, type II, becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6) (2005) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2005). At the time of the February 2002 RO rating decision, the regulations stated that a veteran who, during active military, naval, or air service, 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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(a)(6)(iii) (2005). The VA Adjudication Procedure Manual M21-1, Part III, § 4.08(k)(1)-(2), up until February 27, 2002, stated that "In the absence of contradictory evidence, 'service in Vietnam' will be conceded if the records shows [sic] that the veteran received the Vietnam Service Medal." In this case, the veteran filed his original claims for service connection in February 2001, before the law regarding Vietnam service for the purpose of raising a presumption of exposure was changed. The RO proposed to sever service connection in May 2003 and the actual severance was effective from August 2003, after the change in M21-1 that required that the veteran must have set foot in Vietnam for the presumption of herbicide exposure to apply. As explained in more detail below, there are two reasons why the severance at issue was improper. In a recent decision, Haas v. Nicholson, No. 04-491 (U.S. Vet. App. Aug. 16, 2006), the Court of Appeals for Veterans Claims (Court) held that, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" will, in the absence of contradictory evidence, be presumed based upon the veteran's receipt of a Vietnam Service Medal (VSM), without any additional proof required that a veteran who served in waters offshore actually set foot on land in the Republic of Vietnam. In other words, exposure to herbicides will be presumed based on the receipt of a VSM. Examples of contradictory evidence include evidence that the VSM was received for service in a neighboring country or at a location that reasonably precluded exposure to Agent Orange. In reaching this holding, the Court found that the authorizing statute, 38 U.S.C. § 1116(f), is not clear on its face concerning the meaning of the phrase "service in the Republic of Vietnam." Further, the statute does not by its terms limit application of the presumption of service connection for herbicide exposure to those who set foot on the soil of the Republic of Vietnam. Because the statute is ambiguous, the Secretary may promulgate regulations to resolve that ambiguity so long as the regulations reasonably interpret both the language of the statute and the intent of Congress in enacting the legislation. However, the regulations promulgated by the Secretary, 38 C.F.R. § 3.307(a)(6)(iii) and 38 C.F.R. § 3.313(a), are ambiguous regarding whether service on land in Vietnam is required in order for the presumption of exposure to apply. As a consequence, the Secretary has merely replaced statutory ambiguity with regulatory ambiguity, and therefore the regulations are not entitled to Chevron deference. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)(when the relevant statute is ambiguous, the agency's interpretation will generally be sustained as long as it reflects a permissible construction of the statute). The Court found that, not only are the regulations ambiguous when read together, but they also are inconsistent with prior and longstanding agency views as to what constitutes "service in the Republic of Vietnam" for application of the presumption of exposure to herbicides, as well as contrary to the legislative history of section 1116(f). As previously provided in VA Adjudication Procedure Manual M21-1, Part III, 4.08(k)(1)-(2) (Nov. 1991), "In the absence of contradictory evidence, 'service in Vietnam' will be conceded if the records shows [sic] that the veteran received the Vietnam Service Medal." This provision apparently remained in effect throughout the promulgation of current 38 C.F.R. § 3.307(a)(6)(iii). Further, because this M21-1 provision does not merely clarify or explain an existing rule or statute, but instead "prescribes what action must be taken in the initial levels of adjudication," the rule is substantive, not procedural, and has the force and effect of law. While action was taken by VA in February 2002 to rescind and amend this version of the M21-1 (as amended in July 1995-M21-1, Part III, 4.24(g)(1)-(2)), this action was ineffective and is set aside because VA did not comply with the notice and comment requirements of the Administrative Procedures Act (APA) regarding the promulgation and rescission of substantive rules. See M21-1, Part III, 4.24(e)(1)-(2). Consequently, the M21-1 provision in effect prior to the February 2002 rescission remains binding on VA. (Emphasis added.) In this case, the record clearly shows that the veteran served on a Navy vessel in the waters offshore from Vietnam and received a Vietnam Service Medal. While the record does not clearly show if the veteran was ever physically present in Vietnam, the RO granted service connection for diabetes mellitus, type 2, and secondary heart disease presumably on the basis of the veteran's receipt of the Vietnam Service Medal. The RO did not inquire as to the veteran's physical presence in Vietnam. The record, in its entirety, is ambiguous as to whether or not the veteran was physically present in Vietnam. The veteran has not made a statement regarding whether or not he was physically present in Vietnam during the time he served on the Navy ship and the NPRC has stated that the veteran was attached to a Navy unit that "could have been" assigned to ship or shore. In order to sever a grant of service connection, the burden of proof is on the government to show that the grant of service connection was clearly and unmistakably erroneous. In the case at hand, before Haas, supra, the grant of service connection could be severed only if the government demonstrated, clearly and unmistakably, that the veteran was not physically present in Vietnam at any time during his tour of duty on the Navy ship off the shores of Vietnam. However, the government has not met this standard. At best, the record is unclear as to the veteran's physical presence in Vietnam. Although the record does not conclusively show that the veteran was physically present in Vietnam, it also does not conclusively show that the veteran was not physically present in Vietnam. As such, the government has not met its burden of proof in showing that the grant of service connection for diabetes mellitus and secondary arteriosclerotic heart disease was clearly and unmistakably erroneous. In the absence of such a finding, the Board concludes that the severance of service connection for the veteran's diabetes mellitus and secondary heart disease, effective as of November 1, 2003, was improper. Moreover, in view of Haas, supra, the M21-1 provision in effect prior to the February 2002 rescission remains binding on VA. Thus, the veteran's receipt of the VCM was sufficient to show the requisite Vietnam service, which in turn entitled him to a presumption of exposure to herbicides during that time. 38 C.F.R. § 3.307(a)(6)(iii); VA Adjudication Procedure Manual M21-1, Part III, § 4.08(k)(1)-(2) (in effect prior to February 2002); Haas, supra. In view of the foregoing, the Board finds that the RO's severance of service connection for Type II diabetes mellitus and arteriosclerotic heart disease as secondary to diabetes, effective November 1, 2003, was improper. ORDER The severance of service connection for diabetes mellitus, effective November 1, 2003, was improper; accordingly, restoration of service connection for diabetes mellitus is granted. The severance of service connection for arteriosclerotic heart disease as secondary to diabetes mellitus, type 2, was improper; accordingly, restoration of service connection for diabetes mellitus is granted. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs