Citation Nr: 0418252
Decision Date: 07/09/04 Archive Date: 07/21/04
DOCKET NO. 99-08 894A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to restoration of service connection for
histiocytic type malignant lymphoma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K.S. Hughes, Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to August
1972.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a July 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey, severing service connection for
histiocytic type malignant lymphoma.
In connection with this appeal, the veteran testified at a
Travel Board hearing before the undersigned Acting Veterans
Law Judge in December 2003. A transcript of that hearing is
associated with the claims file.
FINDINGS OF FACT
1. The veteran was awarded service connection for
histiocytic type malignant lymphoma in a January 1995 rating
decision.
2. At the time of the initial award of service connection
for histiocytic type malignant lymphoma, the record contained
medical evidence confirming a diagnosis of histiocytic type
malignant lymphoma shortly after discharge, the veteran’s
plausible allegations of in-service herbicide exposure, and
corroboration of the veteran’s service in Thailand and his
maintenance work on B-57 aircraft.
3. The January 1995 award of service connection for
histiocytic type malignant lymphoma was not clearly and
unmistakably erroneous.
CONCLUSION OF LAW
The criteria for severance of service connection for
histiocytic type malignant lymphoma were not met.
38 U.S.C.A. § 5109A(b) (West 2002); 38 C.F.R. § 3.105(d)
(2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), which has
since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002). 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. The Board has considered
this new legislation with regard to the issue on appeal and
finds that, given the favorable action taken herein, no
further notification or assistance pertinent to the issue on
appeal is required.
The veteran challenges the propriety of the RO’s severance of
service connection for histiocytic type malignant lymphoma.
Once service connection has been granted, it can be severed
only upon the Secretary’s showing that the rating decision
granting service connection was “clearly and unmistakably
erroneous,” and only after certain procedural safeguards
have been met. 38 C.F.R. § 3.105(d); Graves v. Brown, 6 Vet.
App. 166, 170-71 (1994).
The United States Court of Appeals for Veterans Claims
(Court) has held that 38 C.F.R. § 3.105(d) places the same
burden of proof on the VA when it seeks to sever service
connection as 38 C.F.R. § 3.105(a) places upon a claimant
seeking to have an unfavorable previous determination
overturned. Baughman v. Derwinski, 1 Vet. App. 563, 566
(1991). Clear and unmistakable error is defined the same
under 38 C.F.R. § 3.105(d) as it is under 38 C.F.R.
§ 3.105(a). See Venturella v. Gober, 10 Vet. App. 340, 342
(1997).
The veteran claims that he was exposed to Agent Orange at
Ubon, Thailand, where he worked on airplanes which were used
for spraying herbicides in Vietnam. Specifically, he states
that he worked on Hayes Dispensers which were coated with a
substance, which was foreign to him, and which he now
believes was Agent Orange. The veteran essentially
reaffirmed his contentions during his December 2003 Travel
Board hearing.
The veteran’s service personnel records reflect that he had
one year, three months, and two days of foreign and/or sea
service. These records further show that he served as a
weapons mechanic at Ubon Airfield, Thailand.
Private treatment records show that the veteran complained of
a mass at the right axillary region in November 1974. A
December 1974 cytology and tissue examination report reflects
a microscopic diagnosis of changes in lymph nodes consistent
with diagnosis of lympho histiocytic type of malignant
lymphoma. Subsequent medical records, including a May 1990
report of VA examination for Agent Orange, show treatment for
recurrent skin lesions.
The rating decision that granted service connection for
histiocytic type malignant lymphoma in 1995 listed the
evidence used for the determination as the service
administrative records, a May 1994 VA examination report, and
private medical records. The rating decision notes that,
although the veteran did not serve in Vietnam, he presented a
plausible explanation as to how he could have come in contact
with Agent Orange and, given the fact that he had histiocytic
type malignant lymphoma diagnosed in 1974, all reasonable
doubt was resolved in his favor and service connection was
granted and a schedular evaluation of 30 percent was
assigned.
Thereafter, in February 1995, the RO requested verification
from the United States Army and Joint Services Environmental
Support Group (ESG) as to the storage, handling, or use of
Agent Orange at Ubon Airfield.
In May 1995, the ESG responded that herbicides were not
stored or sprayed near United States personnel in Thailand
and that it was unable to confirm that the veteran worked on
equipment that contained Agent Orange.
In August 1995, the RO requested an advisory opinion from the
Veterans Benefits Administration, Compensation and Pension
Service, as to whether the January 1995 rating decision was
clearly and unmistakably erroneous in granting service
connection for histiocytic type malignant lymphoma.
The Director of Compensation and Pension Service subsequently
replied that action to sever service connection may not be
initiated unless it can be clearly established that the
veteran was never exposed to herbicide agents during his
military service. The RO was further advised that the burden
of establishing this fact rests with VA.
In an October 1997 rating decision, the RO proposed to sever
service connection for histiocytic type malignant lymphoma.
The veteran was advised of the proposed severance in an
October 1997 letter.
The veteran responded to the notification of the proposed
severance in October 1997, stating that he was assigned to
replace and inspect Hayes Dispensers while on duty in
Thailand. He said that the dispensers came from Vietnam and
“were coated with an oily petrol type substance” which he
believed was Agent Orange. In addition, the veteran provided
a copy of a performance report, dated in March 1971, which
notes that he performed inspections and replacement of items
on all assigned Hayes Dispensers.
In a July 1998 rating decision, the RO severed service
connection for histiocytic type malignant lymphoma on the
basis that “the preponderance of the evidence is
unfavorable” and “the rule regarding benefit of reasonable
doubt does not apply.” The veteran disagreed with the July
1998 rating decision and initiated this appeal.
In a September 1999 letter to the Director, Compensation and
Pension Service, the veteran’s accredited representative
argued that it had not been shown by VA that there was no
conceivable way to maintain service connection and, thus, the
severance of service connection was premature. Specifically,
the veteran’s representative argued that the veteran’s claim
of herbicide exposure as a result of contact with aircraft
equipped with Hayes Dispensers had not been resolved.
In March 2000, the RO was instructed by the Director,
Compensation and Pension Service, to contact the United
States Armed Services Center for Unit Records Research
(USASCURR) (formerly ESG) and request information about the
possible contamination of the Hayes Dispensers which the
veteran came into contact with during his tour in Thailand.
In October 2001, USASCURR responded that it was unable to
confirm or locate documentation indicating that Ranch Hand
aircraft (used to spray herbicides over South Vietnam)
originated from Ubon Air Force Base in Thailand. However,
USASCURR further stated that the “Hayes Company” developed
the spray equipment used in the Ranch Hand defoliation
program. The issue of “possible contamination” of the
Hayes Dispensers with which the veteran came into contact was
not addressed.
In a June 2003 Supplemental Statement of the Case, the RO
again declined to restore service connection on the basis
that “the evidence does not establish that the veteran was
exposed to Agent Orange while in service” and the “the
preponderance of the evidence is against his claim, and there
is no doubt to be resolved.”
The RO has simply applied the wrong legal standard. As noted
previously, 38 C.F.R. § 3.105(d) mandates that there be clear
and unmistakable error in the prior rating decision in order
to sever service connection, and the burden is on VA to
produce evidence of such error. While the RO stated “it
has not been verified that the veteran handled, used, stored,
or was in any way exposed to Agent Orange, or that he came
into contact with equipment that may have been exposed to
Agent Orange, during his service in Thailand” that statement
is not correct. In fact, the veteran did come into contact
with equipment that may have been exposed to Agent Orange,
the Hayes Dispensers.
It is not disputed that the veteran served in Ubon, Thailand,
and worked on the Hayes Dispenser weapons system on B57
aircraft. It is not disputed that the Hayes Dispenser
weapons system and B57 aircraft were used in the Operation
Ranch Hand defoliation program. It is not disputed that the
defoliation program continued during the time period the
veteran worked on the Hayes Dispenser weapons system. It is
not disputed that the veteran developed a lympho histiocytic
type of malignant lymphoma shortly after his discharge from
active service.
On the other hand, it could not be verified that B-57G
aircraft were used to spray herbicides during 1970 and 1971,
and it could not be confirmed that Ranch Hand aircraft flew
missions out of Ubon, Thailand.
The RO essentially used a lack of information concerning
herbicide exposure as the evidence to sever service
connection. This had the effect of placing the burden of
proof on the veteran, impermissible under 38 C.F.R.
§ 3.105(d), and insufficient to justify a finding of clear
and unmistakable error in the grant of service connection.
While, in hindsight, the decision to grant service connection
for histiocytic type malignant lymphoma in 1995 may certainly
be second-guessed, it may not be overturned based on the
evidence of record. Accordingly, service connection for
histiocytic type malignant lymphoma is restored. 38 U.S.C.A.
§ 5109A(b); 38 C.F.R. § 3.105(d).
ORDER
The appeal is granted, and service connection for histiocytic
type malignant lymphoma is restored.
____________________________________________
RONALD W. SCHOLZ
Acting Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
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2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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