Citation Nr: A21006352 Decision Date: 03/23/21 Archive Date: 03/23/21 DOCKET NO. 200131-60109 DATE: March 23, 2021 ORDER Entitlement to an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus type II on the basis for a clear and unmistakable error (CUE) is granted. FINDINGS OF FACT 1. The Veteran was exposed to C 123K aircraft at Westover AFB; he initially submitted an informal and formal claim for service connection for diabetes mellitus type II on February 24, 2014; and there is medical evidence that the Veteran manifested diabetes mellitus type II in April 2013. 2. An October 2015 rating decision granted service connection for diabetes mellitus associated with herbicide exposure effective June 19, 2015. 3. The Veteran did not file a timely appeal and did not submit new and material evidence within one year of the rating decision. Therefore, the October 2015 rating decision is final. 4. The clear and unmistakable error of law committed by the RO in the October 2015 rating decision, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the error not been made. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus type II on the basis for a clear and unmistakable error have been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107, 5109A, 5110, 7252 (2012); 38 C.F.R. §§ 3.105, 3.303, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the United States Air Force from August 1974 to July 1979 and from September 1981 to September 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that declined to revise an October 8, 2015 rating decision that granted service connection for diabetes mellitus and that assigned an effective date of June 19, 2015 on the basis of clear and unmistakable error. The Veteran expressed timely disagreement in March 2019, and the RO issued a statement of the case in December 2019. In January 2020, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), and elected the Direct Review option. Although the Veteran cited the November 2018 rating decision, the Veteran also opted into the Appeals Modernization Act procedure from the December 2019 statement of the case. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal which is the December 2019 statement of the case. 38 C.F.R. § 20.301. Clear and Unmistakable Error (CUE) Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error of fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). CUE is a collateral attack on an otherwise final rating decision by an RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A mere misinterpretation of the facts does not constitute CUE. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Assertions that the previous adjudication at issue “improperly weighed and evaluated the evidence” does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Entitlement to an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus type II on the basis for a clear and unmistakable error The Veteran contends that the RO committed a clear and unmistakable error in establishing an effective date of June 19, 2015 for the grant of service connection for diabetes mellitus type II. The Veteran contends that the effective date should not be the effective date of a regulation change that established a presumption of exposure to herbicide for veterans who worked on C-123 aircraft used for herbicide spraying in Vietnam, but rather the date of his original claim for service connection based on the regulations in effect at the time of the October 2015 decision direct service connection. This claim was received on February 24, 2014. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff’d, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. Id. On June 19, 2015, a regulation became effective allowing members of the Air Force and Air Force Reserve to be granted presumptive service connection based on exposure to herbicides for individuals who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam Era. The evidence of record shows that the Veteran was exposed to Agent Orange through regular and repeated duties flying on or maintaining contaminated former Operation Ranch Hand (ORH) C-123 aircraft used to spray Agent Orange in Vietnam. When C-123 related exposure occurs during reserve or guard service during a period of non-active duty, the effective date is June 19, 2015, the date 38 C.F.R. § 3.307 (a)(6)(v) became effective, which is what allows VA to consider C-123 related herbicide exposure as an “injury” thereby allowing service connection. The law under 38 C.F.R. § 3.307 states an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101 (24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309 (e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. When C-123 related herbicide exposure occurs during a period of active duty, regular effective date rules apply under 38 C.F.R. § 3.400, because herbicide exposure is being conceded and applied under 38 C.F.R. §§ 3.6, 3.309 (a), and 3.307 (a)(6)(iii) & (iv). In the October 2015 rating decision, the RO recognized the Veteran’s exposure to C123K aircraft while stationed at Westover Air Force Base as part of the 439th Tactical Airlift Wing and working as an aircraft maintenance specialist in the Air Force Reserves from July 18, 1979 through September 3, 1981, based on military personnel records. However, the RO erroneously failed to apply 38 C.F.R. § 3.400 (b)(2)(ii), which provides the effective date is the date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. A review of the evidence of record reflects that on February 24, 2014, the Veteran filed both a formal claim for service connection for diabetes mellitus due to Agent Orange exposure. Military personnel records added to the Veteran’s claims file in March 2014 reflect that the Veteran was assigned to 436th Original Maintenance Squad as an aircraft mechanic during his military service. An April 2013 VA examination report reflects a diagnosis of diabetes mellitus, which was confirmed in November 2013. See Capri, June 2013; Medical Treatment Record-Non-Government Facility, February 2014. Additionally, the evidence of record contained documentation, provided by the Veteran, showing contaminated C-123 located at Westover AFB being worked on by servicemembers assigned to 439th. It is undebatable, that at the time of the October 2015 rating decision, 38 C.F.R. § 3.400 (b)(2)(ii) was applicable and the regulation providing a presumption of exposure to herbicide was in effect. The correct facts, as they were known at the time, were before the RO in October 2015, the regulatory provision then extant was not applied, and the failure to correctly apply the regulation manifestly changed the outcome of the October rating decision. This is not a case of a claim for retroactive benefits but rather the direct application of regulations in effect and evidence of record at the time of the decision. The criteria for service connection was satisfied. The record had evidence of a diagnosis of diabetes in April 2013, and the regulation establishing the presumption of exposure which established an injury during Reserve duty that is presumed to have been caused by that exposure. The Board finds that the clear and unmistakable error of law committed by the RO in the October 2015 rating decision, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the error not been made and the effective date of February 24, 2014 (the date VA received the claim) would have been assigned. Therefore, the Veteran’s request for revision is granted and the October 2015 rating decision is revised to reflect an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus II associated with herbicide exposure. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.