Citation Nr: 21032341 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-18 924A DATE: May 26, 2021 ORDER 1. Entitlement to restoration of service connection for type 2 diabetes mellitus, with diabetic retinopathy, nephropathy, and onychomycosis of both feet, is granted. 2. Entitlement to restoration of service connection for right lower extremity peripheral neuropathy is granted. 3. Restoration of service connection for left lower extremity peripheral neuropathy is granted. 4. Entitlement to service connection for coronary artery disease (CAD) is granted. FINDINGS OF FACT 1. The Veteran is reasonably shown to have been exposed to herbicide agents while serving at Udorn Royal Thai Air Force base (RTAFB) from July 1967 to July 1968, which was acknowledged in an August 2011 rating decision. 2. The grants of service connection for type 2 diabetes mellitus by an August 2011 and for right and left lower extremity peripheral neuropathy by an August 2011 rating decision were reasonably supported by facts shown and were consistent with guidance in VA manual provisions, and are not shown to have been clearly and unmistakably erroneous. 3. The Veteran has CAD which is an ischemic heart disease (IHD). CONCLUSIONS OF LAW 1. Restoration of service connection for type 2 diabetes mellitus is warranted met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.12, 3.103, 3.105, 3.303, 3.307, 3.309. 2. Restoration of service connection for right and left lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.310. 3. Service connection for CAD is warranted. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1966 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2013 (CAD) and May 2015 (severance) Department of Veterans Affairs (VA) rating decisions. In November 2014, a hearing was held before a decision review officer (DRO); a summary is in the record. In April 2021 a videoconference hearing was held before the undersigned; a transcript is in the record. SEVERANCE OF SERVICE CONNECTION The Veteran contends that the May 2015 severance of service connection was improper. He contends that the severances are erroneous as he was exposed to herbicide agents while serving at RTAFB Udorn during the Vietnam period, and accordingly, restoration of service connection for diabetes mellitus, type 2, is warranted. Upon review of the record, the Board agrees and finds that the severance of service connection was based on a difference in weighing the facts at the time, as the award of service connection was based on a finding of exposure to herbicide agents on a facts-found basis, and thus the severance was improper. Service connection will be severed only where evidence establishes that the grant was clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that there was CUE in the award of service connection. 1. Due Process 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). The initial 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 originally granted service connection for type 2 diabetes mellitus and bilateral lower extremity peripheral neuropathy, in an August 2011 rating decision. In April 2012, the Veteran filed a claim of service connection for a heart disorder, also as due to exposure to herbicide agents. In developing such claim, the RO determined that the Veteran was not in fact exposed to herbicide agents during service. Thus, in September 2014, the RO proposed to sever service connection for type 2 diabetes mellitus and bilateral lower extremity peripheral neuropathy. The RO stated that the decision to grant service connection was clearly and unmistakably erroneous because it conceded herbicide agent exposure based on the Veteran's service at Udorn RTAFB, with the evidence not clearly showing him placed on the perimeter of the base regularly, or with no evidence otherwise showing exposure to herbicide agents. The RO noted the previous concession of herbicide agent exposure was based merely on service at Udorn RTAFB, and the Veteran did not have a military occupation specialty (MOS) that placed him on the perimeter, and the evidence did not otherwise show he was near the perimeter of the air base. A May 2015 rating decision severed service connection. The RO reiterated the July 2017 rating decision that had proposed to sever service connection, and noted that the Veteran provided evidence that depicted Udorn RTAFB, and explained his duties while there, at a predetermination hearing. Nonetheless, the RO concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposal to sever rating decision in September 2014, and the Veteran was notified at his 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 in a September 2014 notice letter. He was afforded a predetermination hearing and opportunity to provide evidence to support his claim. The May 2015 rating decision which severed service connection did so prospectively, effective August 1, 2015. The period for which service connection for diabetes mellitus had been awarded began on June 7, 2010, and ended August 1, 2015, a period of less than ten years (thus, service connection was not "protected". 38 C.F.R. § 3.957. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in May 2015. The August 1, 2015, date was later than the last day of the month in which a 60-day period from the date of the May 2015 notice expired. Thus, all due process requirements were met in the severance of service connection for diabetes mellitus, type 2, and bilateral lower extremity peripheral neuropathy. See 38 C.F.R. § 3.105(d). 2. Whether there was CUE in the Award of Service Connection The remaining question before the Board is whether the grant of service connection for type 2 diabetes mellitus and bilateral lower extremity peripheral neuropathy, was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because the finding of exposure to herbicide agents on a facts-found basis in the instant case was not a clear and unmistakable error. 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) (internal citations omitted). A clear and unmistakable error is one about which reasonable minds could not differ. See 38 C.F.R. § 3.105(a)(1)(i). In most respects, the CUE standard for severing service connection under 38 C.F.R. § 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). 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 v. Nicholson, 20 Vet. App. 482, 488 (2006). Propriety of the May 2015 severance of service connection for type 2 diabetes mellitus and peripheral neuropathy of both lower extremities. The Veteran does not contend, nor does the evidence show, that his type 2 diabetes mellitus had its onset in service. His only contention is that his type 2 diabetes mellitus was caused by exposure to herbicide agents during service. His type 2 diabetes mellitus was first diagnosed in 2002, as noted in a July 2011 VA examination report. The Veteran's service records show that he served at Udorn RTAFB during the Vietnam Era, from July 1967 to July 1968. Service personnel records show that his MOS was Aircraft Mechanic, reciprocating engine specialist. He has related that his duties required frequent interaction with the perimeter of the base as he would need to work on the flight line which was located next to the perimeter. Specifically, in his November 2014 hearing, he stated that he was frequently within 100 yards of the perimeter working on the flight line, and also worked in bunkers next to the perimeter, and he performed repairs on the flight line apron, which he stated was next to the wire. The Veteran's personnel records confirm he had such duties, but did not explicitly place those them on the perimeter of the base. The record also includes a picture of the flight line at Udorn RTAFB, which showed it was next to the perimeter of the base. In June 2011, VA issued a formal finding acknowledging herbicide agent exposure in the instant case. The RO relied on the Veteran's statements and his personnel records, and found that the Veteran served at Udorn RTAFB, and thus herbicide agent exposure was conceded on a facts-found basis. Based on the such finding, an August 2011 rating decision granted service connection for type 2 diabetes mellitus based on a legal presumption that it was due to the acknowledged exposure to herbicide agents at Udorn RTAFB. As pertinent to the Veteran's claim, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). For those veterans who were exposed to herbicide agents, certain diseases, to include type 2 diabetes mellitus, are presumed to be due to such exposure. 38 U.S.C. 1116(a)(2); 38 C.F.R. § 3.309(e). Such diseases, with exceptions not applicable here, shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Thus, if the Veteran showed that he was exposed to herbicide agents, type 2 diabetes mellitus would be presumed to be related to his service. While the Veteran did not have service in Vietnam (which would afford him a presumption of exposure to herbicide agents) VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain RTAFB's where herbicides may have been sprayed. After a review of the record, the Board finds that the August 2011 grant of service connection for diabetes mellitus, type 2, was not clearly and unmistakably erroneous. The August 2011 grant of service connection for type 2 diabetes mellitus was premised on then existing VA Manual guidelines which extended consideration of the 38 U.S.C. § 1116 presumptive provisions to veterans who served on the perimeters of certain RTAFB's (to include Udorn), during specified periods, and indicated that for certain MOS's (e.g., security dog-handler) service on the perimeter should be assumed, but also that determinations were otherwise to be made on a factual (specific to the case) basis. An unsigned (and unattributed) Memorandum entered in the record in December 2010 (and again in May 2014) with the proposal to sever, indicates that there was a lack of sufficient information to send to the Joint Service Records Research Center (JSRRC) for corroboration of exposure (and essentially indicates that tactical herbicides were not known to have been used on RTAFB perimeters). In March 2018, the JSRRC issued a formal finding noting that herbicide agent exposure from Udorn RTAFB could not be conceded on a facts found basis. The JSRRC also reviewed the same personnel records as above, as well as the service treatment records and additional evidence submitted by the Veteran, but concluded that herbicide agent exposure could not be conceded on a facts-found basis. Significantly, the information relied on by the August 2011 adjudicator to concede exposure to herbicide agents at Udorn was not inaccurate (nor as apparently was indicated by an unsigned notation on the finding of exposure during service at Udorn at that time based solely on being stationed at Udorn). The adjudicator conceding exposure on a factual finding basis had available for review numerous statements by the Veteran describing his duties at Udorn RTAFB which frequently placed him in close proximity to the base perimeter (which apparently were found persuasive. The Veteran is competent to describe his duties and the locations where they were performed. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The duties described were confirmed by service personnel records and performance evaluations therein. The layout of Udorn RTAFB submitted by the Veteran also shows that the flight line was near the base perimeter of the base, reinforcing the Veteran's statements. The 2011 adjudicator, finding the statements credible and probative, found that the Veteran's duties placed him frequently near the base perimeter and made a judgement decision that the Veteran was indeed exposed to herbicide agents in service. It cannot be found that reasonable minds could not differ on whether the Veteran was exposed to herbicide agents based on his MOS, job duties, and statements. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). There is no evidence which affirmatively shows the Veteran did not have duties that placed him on or near the perimeter of the base. The evidence of record adequately supports that the Veteran was regularly at or in close proximity to the perimeter of Udorn RTAFB (at a time when herbicide agents may have been used there). The Board finds that June 2011 memorandum finding of exposure of Agent orange and the August 2011 judgment decision granting service connection for diabetes mellitus and diabetic peripheral neuropathy of both lower extremities not inconsistent with, but were reasonably supported by, the factual record; therefore they were not clearly erroneous. Furthermore, that such judgement decisions could be made based on facts found is consistent with the M 21-1 (VA manual provisions for adjudicating claims based on exposure to Agent Orange while serving in Thailand provisions) cited in the June 2011 memorandum which found the Veteran was exposed to herbicide agents, and therefore consistent with then-governing VA guidelines. As the record in 2011 also showed (it is not in dispute) that the Veteran had type 2 diabetes and related bilateral lower extremity peripheral neuropathy, the grants of service connection for such disabilities in August 2011 cannot be found to have been clearly and unmistakably erroneous, but instead they were legally permissible judgment determinations. Consequently, the grants of service connection for type 2 diabetes mellitus and peripheral neuropathy of both lower extremities were not clear and unmistakably erroneous, and severance of service connection for the disabilities was improper. Restoration of service connection is warranted. SERVICE CONNECTION Entitlement to service connection for IHD. The Veteran also contends that he currently has an ischemic heart disease that is due to herbicide agent exposure from his service at Udorn RTAFB. Upon review of the record, noting the previous VA acknowledgment of herbicide agent exposure in June 2011 was not clearly and unmistakably erroneous (and remains in effect); that the Veteran has established by credible accounts and supporting evidence submitted that his duties in his MOS at Udorn brought him regularly in close proximity to the base perimeter; noting that the unsigned (and unattributed) Memorandum added to the record in record in 2014 in essence to challenge (or overturn) VA's (favorable to the Veteran) June 2011 finding that he was exposed to herbicide agents in service was essentially similar (cumulative) to a Memorandum placed in the record in 2010 (which was considered in June 2011); the Board finds that service connection for CAD (which is an ischemic heart disease) is warranted. Initially, the Board finds that the June 2011 VA Memorandum factual finding that the Veteran was exposed to herbicide agents by virtue of his duties at Udorn (which was incorporated in the August 2011 rating decision that granted service connection for type 2 diabetes mellitus and bilateral lower extremity peripheral neuropathy, for which service connection is restored above) is a favorable finding by a VA agency of original jurisdiction that remains in effect. To overturn that finding there must be clear and unmistakable evidence that it was made in error; it cannot be reversed simply by another judgment determination that considers essentially on the same evidence, and makes a contrary conclusion. As clear and unmistakable error in the August 2011 rating decision conclusion that the Veteran was exposed to herbicide agents while serving in Thailand is not shown, the August 2011 determination on that matter remains in effect, and is binding on VA. Having established that the Veteran is acknowledged by VA to have been exposed to herbicide agents in service, the Board's analysis in this matter turns to whether he has a current diagnosis of an IHD, and if so, whether it is shown to be etiologically related to his service. Significantly, IHD is included among the diseases that may be presumed to be service connected as due to exposure to herbicide agents if manifest to a degree of 10 percent or more at any time after service. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Thus, if shown, IHD would be presumed to be service-connected. It is not in dispute that the Veteran has a current diagnosis of an IHD. His diagnosis of severe, 3-vessel (thus compensable) CAD (which by regulatory definition is an IHD), has been verified by his treating cardiologist. See March 2014 Northwest Indiana Cardiovascular Physicians Letter. As noted above, he is entitled to consideration of the instant claim under the presumptive provisions of 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). There is no competent in the record (of e.g., clear intercurrent cause) that would serve to rebut the presumption. Applying those provisions, the Board finds that the Veteran's ischemic heart disease, diagnosed as CAD, may be presumed to be service connected on the basis that it is due to his exposure to herbicide agents in Vietnam during the Vietnam Era. Consequently, service connection for CAD is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.