Citation Nr: 1319600 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 12-30 654A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the severance of service connection for diabetes mellitus was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1949 to December 1953. He also had a period of active duty for training (ACDUTRA) from September 12, 1966, to September 25, 1966, which included service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that severed service connection for diabetes mellitus. In his November 2012 substantive appeal, the Veteran requested a Central Office Board hearing before a Veterans Law Judge. In March 2013, the Veteran was notified that his requested hearing was scheduled for May 7, 2013. The same month, the Veteran notified the Board that he would be unable to attend the May 2013 hearing and wished to postpone the hearing for 30 to 60 days. Thereafter, in an April 2013 written statement, the Veteran withdrew his hearing request. Accordingly, the Board will proceed with adjudication of this appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence does not show that the grant of service connection for diabetes mellitus was clearly and unmistakably erroneous. CONCLUSION OF LAW As severance of service connection for diabetes mellitus was not in accordance with law, service connection is restored effective February 1, 2011. 38 U.S.C.A. §§ 1110, 5109 (West 2002); 38 C.F.R. §§ 3.105, 3.303, 3.304, 3.306, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board restores service connection for the Veteran's diabetes mellitus, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duties to notify and assist is required. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 (Vietnam era) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that he was not exposed to any such agent during that service. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including 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). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116 (West 1991) and 38 C.F.R. § 3.303. 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). 38 C.F.R. § 3.105. A review of the record shows that in a September 2009 rating action, service connection was granted for the Veteran's diabetes mellitus on a presumptive basis as due to herbicide exposure while serving in Vietnam. Thereafter, a March 2010 rating action proposed to sever service connection on the basis that the Veteran's documented service in Vietnam occurred during a period of ACDUTRA, and therefore, he is not entitled to the presumption of service connection due to exposure to Agent Orange. In March 2010, the Veteran requested a personal hearing in conjunction with the proposed severance of service connection. A hearing was scheduled for August 2010, but the Veteran withdrew his hearing request the same month. A November 2010 rating decision severed service connection for diabetes mellitus, effective from February 1, 2011. At the time of the September 2009 rating decision, VA medical records showed that the Veteran was diagnosed with diabetes mellitus in January 2008. The record also contained service personnel records showing that, during a period of ACDUTRA from September 12, 1966, to September 25, 1966, the Veteran flew into and out of Da Nang, Vietnam while co-piloting service flights related to administrative transport. Also of record were service treatment records, which are negative for treatment or diagnosis of diabetes mellitus. Initially, based on the foregoing, the Board finds that the RO did not err when it determined that the Veteran is not entitled to presumptive service connection for diabetes mellitus. The Board notes that generally, "[i]n order to qualify for VA benefits, a claimant . . . [must be] a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed.Cir.2000). A "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2). The term "active military, naval, or air service" includes active duty, and "any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term 'Reserve' means a member of a reserve component of one of the Armed Forces. 38 U.S.C.A. § 101(26). When a claim is based on a period of ACDUTRA, in order to establish entitlement to benefits, there must be some evidence that the disability for which service connection is being sought was "'incurred or aggravated' during the relevant period of service." Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (quoting 38 U.S.C.A. § 101(24)(B); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); and McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 ("if a claim relates to period of ACDUTRA, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). The Board notes that veterans who serve on regular active duty are entitled to several presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-to assist them in substantiating their service connection claims. 38 U.S.C.A. §§ 1111, 1112, 1153 (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2012). However, where a claim is based on a period of ACDUTRA, the claimant "can never be entitled to the presumption of service connection" because "[b]y definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service." Smith, 24 Vet. App. at 47. "By contrast, for a claimant whose claim is based on a period of ACDUTRA to establish entitlement to benefits, there must be some evidence that his or her condition was "incurred or aggravated" during the relevant period of service." Id. Nevertheless, the Board finds that it was not untenable for the RO to have concluded that service connection was warranted. In this regard, at the time of the September 2009 rating decision granting service connection for diabetes mellitus, the record showed that (1) the Veteran had a current diagnosis of diabetes mellitus; (2) the Veteran served in Vietnam in September 1966, during which time VA has recognized the use of herbicides, to include Agent Orange; (3) the Secretary of Veterans Affairs had acknowledged a positive association between herbicide exposure and subsequent development of diabetes mellitus. 38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii), 3.309(e). See also National Academy of Sciences report, "Veterans and Agent Orange: Update 1996," dated March 14, 1996. In essence, the record constructively contained a current diagnosis, evidence of in-service injury, namely exposure to herbicides, and a nexus between the Veteran's current disability and his in-service injury. In this case, the RO severed service connection for diabetes mellitus essentially on the ground that presumptive service connection was not warranted for the condition, ignoring any other theory of entitlement presented by the record. Thus, after a careful review of the record, the Board finds that VA has not met the high evidentiary burden of showing clear and unmistakable error in the original grant, and thus the severance of service connection was improper. (CONTINUED ON NEXT PAGE) ORDER The severance of service connection for diabetes mellitus was improper, and restoration of service connection, effective February 1, 2011, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs