Citation Nr: 20071609 Decision Date: 11/05/20 Archive Date: 11/05/20 DOCKET NO. 18-41 296 DATE: November 5, 2020 ORDER Restoration of the award of Dependency and Indemnity Compensation (DIC) benefits based upon service connection for the cause of the Veteran’s death is granted. The severance of service connection being improper, service connection for diabetes mellitus, type II, as due to herbicide exposure, is restored, and the appeal is granted. FINDINGS OF FACT 1. The Appellant did not receive notice of the final action of severance of DIC benefits until after the severance was implemented. 2. The RO implemented the severance of DIC benefits prior to final notification to the Appellant. 3. It is not clear and unmistakable that the cause of the Veteran’s death was not related to service. 4. It is not clear and unmistakable that the Veteran did not have in-country service in Vietnam and was not exposed to herbicides. CONCLUSIONS OF LAW 1. The severance of the award of DIC based upon service connection for the cause of the Veteran’s death was not proper; restoration of DIC based upon service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1101, 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.105(d), 3.303, 3.304, 3.312. 2. The severance of entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, was not proper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Navy from April 1969 to October 1970. The Veteran passed away in December 2013, and the Appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which determined that there was clear and unmistakable error (CUE) in a March 2015 rating decision that granted service connection for the cause of the Veteran’s death (one basis for DIC), and which severed service connection. In a January 15, 2020, decision, the Board restored the award of DIC benefits based upon service connection for the cause of the Veteran’s death. In an August 20, 2020, decision, the Board vacated the January 15, 2020, decision, as the issue of whether the severance of service connection for diabetes mellitus, type II, was proper was not also addressed. The record reflects that the August 20, 2020, Board decision was sent to the Appellant; however, it was returned as undeliverable. As the Board is granting the claims on appeal, there is no prejudice to the Appellant in proceeding with adjudication. The Board notes that the Veterans Appeals Control and Locator System (VACOLS) indicates that the Appellant’s address has been updated. Propriety of Severance of Service Connection Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). 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 therefor 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. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 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. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). In this case, by way of background, the Veteran was initially awarded service connection for diabetes mellitus by way of a February 2002 rating decision, as the RO conceded herbicide exposure. A December 2002 rating decision proposed to sever service connection for diabetes mellitus, as the RO found that there was CUE in the granting of service connection for diabetes mellitus, as it then determined that the Veteran did not have qualifying service in Vietnam which would afford the presumption of herbicide agent exposure. In January 2003, the RO provided notice to the Veteran of the proposal to sever service connection for diabetes mellitus. The Veteran did not respond to this notice. A final rating decision was issued in April 2003, in which service connection for diabetes mellitus was severed, effective July 1, 2003. Notice of this rating decision, plus his appeal rights, was sent to the Veteran under an April 2003 cover letter. The Board observes that the final date of severance was greater than the last day of the month in which a 60-day period from the date of the April 2003 notice to the Veteran of the final rating action expired. Following the April 2003 rating decision, the Veteran made several attempts to reinstate his award of entitlement to service connection for diabetes mellitus. In rating decisions dated April 2009, April 2011, and October 2013, the RO denied entitlement to service connection for diabetes mellitus. In December 2013, just prior to his death, the Veteran filed a notice of disagreement, contesting the RO’s decision to deny reopening the claim and reinstating his service connection benefits. Following the Veteran’s death, the Appellant filed a DIC claim in December 2014. In a March 2015 rating decision, the RO granted service connection for the cause of the Veteran’s death. While the RO had concluded in the April 2003 rating decision that the Veteran did not have qualifying service in Vietnam, in the March 2015 rating decision, the RO determined that the Veteran had in-country service in Vietnam; thus, it granted service connection for the cause of the Veteran’s death, as diabetes mellitus is among the disabilities that are presumed to be a result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). A rating proposing severance was issued in September 2016, and the Appellant was notified of the RO’s intent to sever service connection for the cause of the Veteran’s death by a letter dated September 13, 2016. On October 24, 2016, more than 30 days from the date of the notice, she provided written argument and requested a personal hearing regarding the issue. In the December 2016 rating decision on appeal, the RO determined that there was CUE in the March 2015 rating decision and severed service connection for the cause of the Veteran’s death, effective December 1, 2016. Notification of this severance was sent to the Appellant on January 13, 2017. 1. Whether the severance of DIC benefits based upon service connection for the cause of the Veteran’s death was proper. DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310. Service connection for the cause of a veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the veteran’s death. 38 C.F.R. § 3.312. The Board initially finds that the RO’s severance of the award of DIC based upon service connection for the cause of the Veteran’s death is void ab initio because procedural requirements of 38 C.F.R. § 3.105 were not followed. The Veteran died in December 2013, and his death certificate indicates that the immediate cause of death was liver cancer, and that a significant condition contributing to his death was diabetes mellitus. The Board finds the December 2016 rating decision that severed service connection for DIC benefits is void ab initio because provisions of 38 C.F.R. § 3.105(d) were not met. Notification of the severance determined in the December 2016 rating decision was sent to the Appellant on January 13, 2017. As such, the Appellant was not properly notified of the severance, she did not receive 60 days from notice of the final action, and the severance effective date was before the last day of the month in which the 60-day period from the date of notice to the Appellant of the final action expired. Even if the severance was not void ab initio on a procedural basis, the underlying basis for severing service connection was likewise improper. The RO granted service connection for the cause of the Veteran’s on the basis that a contributing cause of his death, diabetes mellitus, was presumptively due to Agent Orange exposure. As previously noted, the RO severed service connection after finding that there was no evidence of record showing that the Veteran had served in Vietnam. In doing so, the RO applied the wrong standard. Once service connection was granted, the question became whether it was clear and unmistakable that the cause of the Veteran’s death was not related to service. The absence of evidence cited by the RO is inadequate to meet this high burden of proof. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (addressing the clear and unmistakable evidence burden of proof in the context of a 38 U.S.C. § 1111 issue). The Board has likewise been unable to locate clear and unmistakable evidence establishing that the cause of the Veteran’s death was unrelated to service. To the contrary, the evidence shows that the Veteran had actual presence in the Republic of Vietnam during the Vietnam War and herbicide presumption is therefore presumed. The Veteran’s military personnel records show that he served on the USS Valley Forge during the times it was in the waters off of the Republic of Vietnam in 1969. A review of deck logs shows that the USS Valley Forge sailed to and made anchor in Da Nang Harbor in July 1969 and August 1969. When it anchored in July 1969, it did so in only seven fathoms (42 feet) of water. Da Nang Harbor is large, but the Board finds it significant that his ship was in 42 feet of water. The Board finds that the evidence as to whether the USS Valley Forge sailed within 12 nautical miles from the shores of the Republic of Vietnam when it anchored in Da Nang Harbor in only seven fathoms (42 feet) of water in July 1969 is at least in equipoise. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). Thus, the presumption of exposure to herbicide agents applies, and, as previously noted, diabetes mellitus is contemplated under the presumption. Based on the foregoing, the evidentiary burden of proof for severing service connection has not been met, which makes the severance of service connection improper. For these reasons, the benefit is restored. 38 U.S.C. §§ 1110, 5112(a); 38 C.F.R. §§ 3.105(d). 2. Whether the severance of service connection for diabetes mellitus, type II, as due to herbicide exposure, was proper. The Board initially finds that, on a procedural basis, the RO’s action in severing service connection for diabetes mellitus satisfied the provisions of 38 C.F.R. § 3.105(d). However, the Board finds that the underlying basis for severance of service connection was improper. As previously discussed, the Veteran was initially awarded service connection for diabetes mellitus by way of a February 2002 rating decision, as the RO conceded herbicide exposure. Then, in an April 2003 rating decision, the RO found that there was CUE in the granting of service connection for diabetes mellitus, as it then determined that the Veteran did not have qualifying service in Vietnam which would afford the presumption of herbicide agent exposure; thus, service connection for diabetes mellitus was severed, effective July 1, 2003. As such, the critical question at issue is whether it is clear and unmistakable that the Veteran did not have in-country service in Vietnam and was not exposed to herbicides. The Board concludes that the severance of service connection was improper because, as discussed in the analysis of the previous issue, there is not clear and unmistakable evidence that the Veteran did not have in-country service in Vietnam. As previously established, the evidence shows that the Veteran had actual presence in the Republic of Vietnam during the Vietnam War and herbicide presumption is therefore presumed. Please refer to the analysis of Issue 1. Thus, it is not clear and unmistakable that the Veteran did not have in-service herbicide exposure. Accordingly, the severance of service connection of diabetes mellitus, type II, was improper, service connection is restored, and the appeal is granted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.