Citation Nr: 0907327	
Decision Date: 02/27/09    Archive Date: 03/05/09

DOCKET NO.  04-33 075	)	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, type II, as due to herbicide exposure, effective 
July 1, 2003, was proper.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESSES AT HEARING ON APPEAL

Veteran and his wife


ATTORNEY FOR THE BOARD

H. A. Hoeft, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1962 to 
September 1966.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an April 2003 rating decision by the 
Department of Veterans Affairs (VA) St. Petersburg, Florida, 
Regional Office (RO).  In that decision, the RO severed 
service connection for diabetes mellitus, type II.  

The Board observes that the primary issue for consideration 
here is whether the severance of service connection for type 
II diabetes, as due to herbicide exposure, was proper.  
However, the facts of this case tangentially relate to the 
recent holding in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 
2008).  

In particular, claims for presumptive service connection 
based on exposure to Agent Orange, in which the only evidence 
of such exposure is the receipt of the Vietnam Service Medal 
or service on a vessel in the waters off the shore of 
Vietnam, were delayed pending final determination of 
appellate actions in the case of Haas v. Peake.  In its May 
2008 decision, the United States Court of Appeals for the 
Federal Circuit found that VA reasonably interpreted 38 
U.S.C. § 1116(a)(1)(A) and 38 C.F.R. § 3.307(a)(6)(iii) as 
requiring the physical presence of a veteran within the land 
borders of Vietnam (including inland waterways) during 
service, and that the receipt of the Vietnam Service Medal 
alone, does not establish service in Vietnam.  The United 
States Supreme Court, declined to review the case, and the 
decision of the Federal Circuit in Haas v. Peake is now 
final.  See Chairman's Memorandum No. 01-09-04 (January 22, 
2009).  The Board is now free to adjudicate the claim at 
issue in the present case.  




FINDINGS OF FACT

1.  The Veteran served in the waters offshore Vietnam. 

2.  A rating decision dated in December 2001 granted service 
connection for diabetes mellitus, type II, on a presumptive 
basis as a result of exposure to herbicides.

3.  A rating decision dated in April 2004 severed service 
connection for diabetes mellitus, type II, based on clear and 
unmistakable error in the December 2001 grant of such 
benefits.  

4.  The evidence of record, in conjunction with a reasonable 
reading of the applicable regulations and relevant General 
Counsel Opinions, does not establish that the award of 
service connection for diabetes mellitus was clearly and 
unmistakably erroneous.  


CONCLUSION OF LAW

The severance of the award of service connection for diabetes 
mellitus, type II, as due to herbicide exposure, was 
improper.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 
(West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.307, 3.309, 
3.313(a) (2008); VAOPGCPREC 27-97, VAOPGCPREC 7-93.




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

On November 9, 2000, the Veterans Claims Assistance Act of 
2000 (VCAA) was enacted.  The VCAA has since been codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126.  
This change in the law is applicable to all claims filed on 
or after the date of enactment of the VCAA, or filed before 
the date of enactment and not yet final as of that date.  
Given the favorable action taken, no discussion of the VCAA 
is required.

Procedural History and Facts

In December 2001, the RO granted service connection for 
diabetes mellitus due to presumed exposure to herbicides 
based on service in the Republic of Vietnam.  In September 
2002, a rating decision proposed severance of service 
connection for such disability.  The RO determined that, upon 
review of the record, it had improperly conceded herbicide 
exposure.  In particular, the RO acknowledged that the 
Veteran served aboard a naval ship that was in the "official 
waters" of Vietnam; however, it determined such service did 
not constitute "service in the Republic of Vietnam," as 
required under 38 C.F.R. § 3.307(a)(6)(iii).  

The Veteran was given notice of the proposed severance and he 
requested a hearing.  In March 2003, the hearing was held, 
service connection was severed in accordance with 38 C.F.R. § 
3.105(d), more than 60 days after the notice of proposed 
severance, and the Veteran was notified of the severance, 
which was effective from July 1, 2003.  The Veteran appealed 
this action.  

It is the Veteran's contention that VA has failed to meet its 
burden of showing clear and unmistakable error as to the 
initial grant of service connection.  In particular, he 
asserts that he served aboard the U.S.S. Basilone, a small 
gearing class destroyer, from March 1966 to July 1966; in May 
1966, the ship traveled up the Saigon River to provide 
gunfire support at which time it became grounded on a 
sandbar; it was positioned within 2 miles of shore.  Based on 
the foregoing, the Veteran believes his service in the 
territorial and inland waterways of Vietnam entitles him to 
presumptive service connection for type II diabetes due to 
herbicide exposure, and that the severance based solely on 
the RO's interpretation of "in-country" service as used in 
§ 3.307(a)(6)(iii), is erroneous.  

The service records confirm that the Veteran served aboard 
the U.S.S. Bastilone (DD-824, Destroyer) from March 1966 to 
July 1966.  By history, the U.S.S. Bastilone spent time in 
the official waters of the Republic of Vietnam in 1966; such 
service was conceded by the RO in the September 2002 and 
April 2003 rating decisions.  The Veteran's Form DD-214 
reflects that his military occupational specialty (MOS) was 
an airplane mechanic ("DASH" technician); he was awarded 
the National Defense Service Medal.

In March 2003, the Veteran gave sworn testimony before a 
hearing officer at the RO.  He stated that he was first 
stationed on the U.S.S. Bastilone in December 1965, and that 
they embarked on an "around the world cruise," spending 
most of their time off the coasts of Vietnam, Hong Kong, and 
Thailand.  The ship, as confirmed by its history, was a 
smaller destroyer escort.  He stated that he spent most of 
his time on the flight deck, as he was in charge of the two 
helicopters onboard.  The Board notes that such testimony 
regarding on-ship duties is consistent with his MOS.  The 
Veteran again testified that while in Vietnam, the ship 
travelled up the Saigon River and became temporarily stuck on 
a sandbar for three to four days. 

In addition to the above testimony, the Veteran also 
submitted an internet article citing a history of the U.S.S. 
Bastilone, as well as two "buddy statements" corroborating 
the Veteran's testimony regarding the Saigon River.  As the 
Board finds the Veteran's testimony to be consistent and 
credible, these corroborating "buddy statements" assist in 
establishing that the Veteran was briefly stationed in the 
waters offshore the Republic of Vietnam. 



Severance of Service Connection 

VA has specific regulatory provisions governing severing 
service connection awards.  The provisions of 38 C.F.R. § 
3.105(d) direct, in pertinent part, that:

Subject to the limitations contained in §§ 3.114 and 3.957, 
service connection will be severed only where evidence 
establishes that it is clearly and unmistakably erroneous 
(the burden of proof being upon the Government).  (Where 
service connection is severed because of a change in or 
interpretation of a law or Department of Veterans Affairs 
issue, the provisions of § 3.114 are for application.)  

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 therefore 
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.

In order to sever a grant of service connection, the VA must 
demonstrate that the grant was clearly and unmistakably 
erroneous and that the VA has followed the applicable 
procedural safeguards.

The evidentiary standard for clear and unmistakable error 
(CUE) has been analyzed in a number of opinions by the United 
States Court of Appeals for Veterans Claims (Court).  Most of 
these address the appeals of claimants seeking a finding of 
CUE in a past denial of benefits.  However, the Court has 
held that the standard is equally applicable to VA where the 
issue is severance of service connection based on CUE.  Once 
service connection has been granted, section 3.105(d) 
provides that it may be withdrawn only after VA has complied 
with specific procedures and the Secretary meets his high 
burden of proof.  Baughman v. Derwinski, 1 Vet. App. 563, 566 
(1991) ("In effect, § 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.")

There is a three-part test to determine whether a prior 
decision is the product of CUE: (1) "[e]ither the correct 
facts, as they were known at the time, were not before the 
adjudicator (i.e., more than a simple disagreement as to how 
the facts were weighed or evaluated) or the statutory or 
regulatory provisions extant at the time were incorrectly 
applied," (2) the error must be "undebatable" and of the sort 
"which, had it not been made, would have manifestly changed 
the outcome at the time it was made," and (3) a determination 
that there was CUE must be based on the record and law that 
existed at the time of the prior adjudication in question.  
Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell 
v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).  
Wilson v. West, 11 Vet. App. 383, 386 (1998).

Although the same standards applied in a determination of CUE 
in a final decision are applied to a determination whether a 
decision granting service connection was the product of CUE 
for the purpose of severing service connection, 38 C.F.R. § 
3.105(d) does not limit the reviewable evidence to that which 
was before the RO in making its initial service connection 
award. See Daniels v. Gober, 10 Vet. App. 474, 480 (1998).

Analysis:

In the present case, the RO severed service connection for 
diabetes mellitus because the Veteran's service was limited 
to the waters offshore Vietnam, and it did not involve 
"actual duty or visitation in the Republic of Vietnam," as 
used in 38 C.F.R. § 3.307(a)(6)(iii).  However, based on the 
discussion below, the Board does not find that these facts 
alone render the initial grant of service connection 
"clearly and unmistakably" erroneous.  

In particular, 38 C.F.R. § 3.313 provides that service in 
Vietnam includes service in the waters offshore, or service 
in other locations if the conditions of service involved duty 
or visitation in Vietnam.  As the Supreme Court has 
instructed, "[t]he starting point in interpreting a statute 
is its language, for 'if the intent of Congress is clear, 
that is the end of the matter.'" Good Samaritan Hosp. v. 
Shalala, 508 U.S. 402, 409 (1993) (alteration omitted) 
(quoting Chevron U.S.A. Inc. v. National Resources Defense 
Council, Inc., 467 U.S. 837, 842 (1984)).  Similarly, 
regulations must be interpreted at face value.  Here, we note 
the comma in 38 C.F.R. § 3.313 is significant and cannot be 
ignored.  Reading the regulation with its comma, we see that 
service in Vietnam includes service in the waters offshore.  
Since the record clearly establishes that the Veteran served 
in the official waters offshore of Vietnam, no further 
discussion or interpretation is necessary.  Quite simply, the 
Veteran is entitled to service connection for his Type II 
diabetes mellitus.  Further, the fact that the regulation can 
been reasonably construed to include service in offshore 
waters, casts serious doubt upon the RO's basis for severing 
service connection; in this regard, VA has failed to meet the 
"clearly and unmistakably" erroneous threshold. 

Indeed, with the comma in its established place, the second 
part of the sentence becomes the phrase "or service in other 
locations if the conditions of service involved duty or 
visitation in Vietnam."  Read this way, it is clear that the 
regulation provides an alternative to service in the waters 
off Vietnam.  Apparently, the RO read the regulation 
differently, perhaps reading in a comma later in the 
sentence, so as to require "duty or visitation in Vietnam" of 
both service in the waters offshore and service in other 
locations.  Such a construction lacks purpose.  The phrase 
"the waters offshore," is a very clear location and does not 
need to be modified by the requirement of "duty or visitation 
in Vietnam."  On the other hand, the phrase "service in other 
locations" could be anywhere in the world unless modified by 
the requirement for "duty or visitation in Vietnam." Thus, 
the requirement for "duty or visitation in Vietnam" clearly 
applies to "service in other locations" and does not apply to 
service in the waters offshore.

38 C.F.R. § 3.307(a)(6)(iii) uses a similar sentence, without 
a comma.  The lack of a comma does not change the meaning of 
the sentence, it merely makes the sentence less clear.  
However, the regulations on herbicides must be interpreted in 
a manner in which they will agree.  Interpreting the 
provisions of 38 C.F.R. § 3.307 in agreement with § 3.313, 
the Board concludes that § 3.307 defines service in the 
Republic of Vietnam to include both (1) service in the waters 
offshore; and (2) service in other locations if the 
conditions of service involved duty or visitation in the 
Republic of Vietnam.  (Emphasis added). That is, if a 
claimant served in other locations, he must have had service 
which involved duty or visitation in the Republic of Vietnam 
to be considered to have served in the Republic of Vietnam.  
Service in the waters offshore of Vietnam is sufficient of 
itself to qualify as service in the Republic of Vietnam for 
the purpose of the herbicide presumptions.

The VA General Counsel has also addressed 38 C.F.R. § 3.313.  
In VAOPGCPREC 27-97 (July 23, 1997), the General Counsel 
discussed the regulation with respect to service in the 
Republic of Vietnam for purposes of the definition of the 
Vietnam era under 38 U.S.C. § 101(29)(A).  It was held that 
service on a deep-water naval vessel in waters off the shore 
of the Republic of Vietnam does not constitute service in the 
Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A), 
as added by section 505 of the Veterans' Benefits 
Improvements Act of 1996, in the case of a veteran who served 
in the Republic of Vietnam during that period.  In explaining 
the holding, the General Counsel emphasized that 38 C.F.R. § 
3.313 was not for the purpose of expanding the definition of 
wartime service for pension benefits, but was for the purpose 
of including service members for coverage under the 
presumptions for exposure to herbicides.  That explanation 
would indicate that purpose of § 3.313 was to expand the 
herbicide presumptions to include those who served in the 
waters offshore.

In VAOPGCPREC 7-93 (August 12, 1993) the VA General Counsel 
found that flying in airspace high over Vietnam was not 
"Service in Vietnam" under 38 C.F.R. § 3.313.  The discussion 
pointed out that the studies on which the presumptions were 
based were conducted on veterans with service in three 
groups: "Blue Water" (ocean-going vessels), "Brown Water" 
(smaller vessels patrolling near shore or along rivers), and 
"on Shore."  It went on to say that those who flew over 
Vietnam, without landing, were not considered.  The 
discussion clearly indicates that the regulation was intended 
to include "Blue Water" and "Brown Water" personnel serving 
offshore under the herbicide presumptions.  Even assuming, 
arguendo, that the Veteran did not embark up the Saigon 
River, the record very clearly establishes time spent in the 
waters offshore Vietnam, or "Blue Water."  The Board notes 
that it is not inconceivable that the Veteran's smaller 
destroyer vessel could have navigated in "Brown Water" as 
well.  

In sum, after reviewing the applicable laws, regulations, and 
General Counsel Opinions, the Board finds that the Veteran's 
service meets the requirements to presume that his Type II 
diabetes mellitus was incurred in service.  In so finding, 
the Board further concludes that the evidence of record does 
not establish that the award of service connection was 
clearly and unmistakably erroneous.  In the absence of such a 
finding, severance of the award of service connection for 
diabetes mellitus as due to herbicide exposure, effective 
July 1, 2003, was improper.  The appeal is granted.  


ORDER

Severance of service connection for type II diabetes, as due 
to herbicide exposure, as of July 1, 2003, was improper, and 
the appeal is granted.  



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs