Citation Nr: 0920240 Decision Date: 06/01/09 Archive Date: 06/09/09 DOCKET NO. 05-27 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Propriety of severance of service connection for diabetes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1952 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran has diabetes. 2. The probative evidence of record does not lead to the undebatable conclusion that the Veteran did not serve in Vietnam. CONCLUSION OF LAW The RO's initial grant of service connection for diabetes was not clearly and unmistakably erroneous and severance thereof was improper. 38 U.S.C.A. §§ 1110, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.105(d), 3.303, 3.304, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. II. Factual Background The Veteran's personnel records show that he was stationed in Thailand from June 1968 to June 1969 and was part of the Vietnam Air Offensive Phase II. His duty title was Inventory Management Supervisor. In an April 2002 rating decision the RO granted service connection for diabetes on the basis that the Veteran had served in Vietnam and that the medical evidence shows that he had diabetes. In a subsequent May 2002 decision the RO proposed to sever service connection for diabetes. Then, in the December 2002 rating decision the RO did sever service connection, finding that the evidence of record showed that the Veteran did not serve in Vietnam. At a May 2004 informal conference, the Veteran reported that while he was stationed in Thailand he was sent to Vietnam for temporary duty (TDY) for a few days in July 1968. He provided documents showing that he had attempted to obtain copies of his pay stubs, travel orders and orders that would show temporary duty. These documents were either destroyed or no longer available, however. The Veteran's representative indicated that the morning reports from the Veteran's unit had not been requested and that these records might indicate personnel changes and duty assignments, including the Veteran's TDY to Vietnam. In a February 2005 letter, the Center for Unit Records Research (CURR) indicated that it was unable to verify whether or not the Veteran served on TDY to Vietnam. A July 2005 communication from the National Personnel Records Center (NPRC) indicates that the NPRC did not have morning reports for 1968. In an August 2005 statement the Veteran indicated that the airport manifest to and from Bangkok to Saigon and also money exchange logs might show some record of his TDY to Vietnam. In a separate August 2005 statement the Veteran indicated that his TDY in 1968 sent him to Don Muang airbase and then to Tan San Nhut airbase, as part of his aircraft supply function. In a May 2006 letter the Defense Finance and Accounting Service indicated that they were unable to verify that the Veteran performed service in Vietnam between February 1952 and September 1972 because Master Military Pay Account Records could not be found or were missing. The agency noted that TDY travel vouchers were only maintained for 5 years and then destroyed. In a June 2006 letter the NPRC indicated that it did not find any TDY orders in the Veteran's file. It also indicated that passenger lists that might show the Veteran's trip to Vietnam were not a matter of record. A May 2007 letter from the Air Force Historical Research Agency indicated that it was not able to locate specific TDY records that stated that the Veteran was sent to TDY in Vietnam. The agency noted that this was quite normal, however, as the TDY records were not kept as permanent historical documents and were given a designated destruction date of 6 years after issue. The agency did officially state that the 8th Tactical Fighter Wing and its squadrons did operate in North and South Vietnam during July 1968 and that this was usually accomplished by TDYs. At his May 2009 Board hearing the Veteran again indicated that he went on TDY to Vietnam in July 1968. In a July 2007 letter the Air Force Personnel Center indicated that there were no documents stored there that would help establish the Veteran's presence in Vietnam in June 2007. The letter suggested that the Veteran search for a unit history on the 8th Tactical Fighter Wing or 8th Supply Squadron to see if either history might mention the Veteran by name as going on TDY to Vietnam. III. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2007). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include diabetes) to a degree of 10 percent or more at any time after service, the veteran is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. § 3.307. 3.309(e). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). 38 C.F.R. § 3.105(d) (2008). Once service connection has been granted, 38 C.F.R. § 3.105(d) provides that it can be withdrawn, but only after certain procedural safeguards have been complied with and the Secretary overcomes a high burden of proof. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In effect, this section) 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. 38 C.F.R. § 3.105(d). IV. Analysis At the outset the Board notes that before service connection may be severed, VA must meet an extremely high burden of proof. As mentioned above, the evidence must establish that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d). In other words, the evidence must be undebatable that the Veteran did not meet the criteria for an award of service connection. This is a much higher burden of proof than that which is necessary for simply denying a veteran's affirmative claim for service connection. In the latter case, all that is essentially required is that the evidence show that it is less likely than not that the Veteran meets the service connection criteria (i.e. that the preponderance of the evidence is against the service connection claim). Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In the instant case, it is clearly established that the Veteran has diabetes. Thus, as his claim for service connection is based on Agent Orange exposure, the only remaining question is whether he actually served in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. In this regard, the record does not contain any actual documentation that the Veteran served in Vietnam, with his personnel records only establishing that he was stationed in Thailand and other locations overseas. The Veteran has provided reasonable testimony that he went on TDY to Vietnam in July 1968. Consequently, in the absence of any specific evidence, which actually disproves this testimony, or renders it entirely non-credible, the Board cannot find that it is undebatable that the Veteran did not go on TDY to Vietnam in July 1968. Accordingly, as it is affirmatively shown that the Veteran has diabetes, and as there is not clear and unmistakable evidence that the Veteran did not have service in Vietnam, severance of service connection for diabetes is not warranted. 38 C.F.R. §§ 3.105(d), 3.303, 3.307, 3.309. ORDER Severance of service connection for diabetes was improper and service connected compensation for diabetes is restored. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs