Citation Nr: 21000036 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-40 890A DATE: January 4, 2021 ORDER Severance of service for prostate cancer was improper; restoration of service connection for prostate cancer is granted. Severance of service for coronary artery disease (CAD)was improper; restoration of service connection for CAD is granted. FINDINGS OF FACT 1. The grant of service connection for prostate cancer, pursuant to an August 2013 rating decision, was not clearly and unmistakably erroneous. 2. The grant of service connection for CAD, pursuant to an August 2013 rating decision, was not clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of service connection for prostate cancer was improper; the criteria for restoration of service connection for prostate cancer have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. The severance of service connection for CAD was improper; the criteria for restoration of service connection for CAD have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the RO. The Veteran testified at a virtual hearing conducted before the undersigned Veterans Law Judge in October 2020. A transcript of the hearing is of record Severance of Service Connection 1. Whether the severance of service connection for prostate cancer was proper 2. Whether the severance of service connection for CAD was proper The RO originally granted service connection for prostate cancer and CAD in an August 2013 rating decision. The RO explained that service connection was granted on a presumptive basis based on exposure to herbicides in Korea near the demilitarized zone (DMZ). The RO issued a rating decision in April 2015 proposing to sever service connection. The RO explained that service connection had been granted on a presumptive basis based on exposure to herbicides in Korea in the DMZ, but “the service department was unable to verify any service in the DMZ.” The RO noted that Camp Casey was 13 miles from the DMZ and was not in close enough proximity to concede exposure to Agent Orange or herbicides. The RO concluded that the June 2013 formal finding was clearly in error to have conceded exposure to Agent Orange; thus, the RO determined that the August 2013 rating decision was clearly in error for granting service connection based on Agent Orange exposure. The RO issued a March 2016 rating decision severing service connection. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (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). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 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 VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. 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. 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. The first question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in April 2015, and the Veteran was notified at the latest address of record of this contemplated action and furnished detailed reasons therefor, and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The notice letter also informed the Veteran that he had the opportunity for a hearing if such a request for a hearing was received within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). In May 2015, the Veteran requested a pre-decisional hearing. He testified in a pre-decisional hearing at the RO in December 2015. The RO issued the March 2016 rating decision, which severed service connection for prostate cancer and CAD prospectively effective June 1, 2016. Notice of this rating decision, plus appeal rights, was sent to the Veteran in March 2016. The June 1, 2016, date was greater than the last day of the month in which a 60-day period from the date of the March 2016 notice expired. Thus, all due process requirements were met in the severance of service connection for prostate cancer and CAD. See 38 C.F.R. § 3.105(d). Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for prostate cancer and CAD was clearly and unmistakably erroneous. Regarding the characteristics of clear and unmistakable evidence, the word ‘unmistakable’ means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster’s New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). The Board concludes that the severance of service connection for prostate cancer and CAD was improper because the evidence is not clear and unmistakable, as the term is understood in law, that the Veteran was not exposed to herbicides during service. In relevant part, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ (i.e. demilitarized zone) in an area in which herbicides are known to have been applied during that period, 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. See 38 C.F.R. § 3.307(a)(6)(iv). In this case, the Veteran’s military personnel file documents that the Veteran served in the 7th Medical Battalion, 7th Infantry Division in Korea from January 1968 to February 1969. A response from the U. S. Army and Joint Services Records Research Center (JSRRC; formerly known as the Center for Unit Records Research (CURR)) reflects that unit history submitted by the Headquarters, Headquarters Company and Band support Command, 7th Infantry Division, the higher headquarters of the 7th Medical Battalion shows that the 7th Medical Battalion was stationed at Camp Casey, located approximately 13 miles from the DMZ. The unit history did not document the use, storage, spraying or transportation of herbicides. In addition, the unit history did not mention or document any specific duties performed by the 7th Medical Battalion along the DMZ. A June 2013 VA memorandum documents the JSRRC Coordinator’s formal finding that the Veteran’s personnel records show that he was stationed with the 7th Medical Battalion in 1968 and 1969 and that it was established through JSRRC in coordination with the National Archives and Records Administration (NARA) that the 7th Medical Battalion was stationed at Camp Casey, near the DMZ between North Korea and South Korea in 1968 and 1969. Citing 38 C.F.R. § 3.307(a)(6)(iv), the JSRRC Coordinator concluded that exposure to herbicide agents can be corroborated. An April 2015 report of VA RO formal finding documents review of the response from JSRRC and the formal finding of the VA RO JSRRC Coordinator in June 2013. Upon review of this evidence, the RO found that Camp Casey was not in a close enough proximity to the Korea DMZ to be able to concede exposure to herbicides and also that the Veteran’s personnel records did not show that he served with any unit for which the VA has recognized exposure to herbicide in Korea from April 1, 1968 to August 31, 1971. The Veteran submitted several statements from fellow service members that served with him during his period of service in Korea. A June 2004 statement reflects that the fellow service member served with the 2nd Infantry Division, Chemical Company. The service member reported that his company was responsible for the application of herbicides in the North, South, East and Western areas of Korea. He reported that the company treated areas in and around the Libby Bridge and Spoon Bill Bridge; the DMZ; the Imjin River; and various Camps around Korea, including Camp Casey. He reported that herbicides agents were applied to the perimeter as well as the area around the mess hall at Camp Casey. A September 2015 statement documents a fellow 7th Medical Battalion unit member’s recollection of going on “alerts” to desolate areas cleared of vegetation that were located north and east of Camp Casey around the Imjin River and the DMZ. The fellow unit member also recalled the concertina wire areas around the Camp Casey perimeter were void of vegetation. Based on this evidence of record, it is not clear and unmistakable that the Veteran was not exposed to herbicides while he was stationed at Camp Casey, located approximately 13 miles from the DMZ from 1968 to 1969. In this case, as the question is whether a grant of service connection later was properly severed, the standard to be employed is whether there is “clear and unmistakable evidence” of an error in the grant of service connection. As documented above, at the time of the 2013 rating decision to grant service connection, there was some evidence in favor of the claims (June 2013 VA memorandum formally finding exposure to herbicide agents is corroborated) and some evidence weighing against the claim (April 2015 formal finding that determined that Camp Casey was not in a close enough proximity to the Korea DMZ to be able to concede exposure to herbicides). (Continued on the next page)   As there is at least some favorable evidence that supported the grants of service connection in 2013, the RO’s later 2016 severance determination amounts to no more than a disagreement as to how to weigh the facts that were present at the time of the grant of service connection in 2013. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. The evidence is not clear and unmistakable that the Veteran was not exposed to herbicides during service. Accordingly, the severance of service connection for prostate cancer and CAD was improper, and restoration is warranted. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.