Citation Nr: 0327244 Decision Date: 10/10/03 Archive Date: 10/20/03 DOCKET NO. 02-09 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus as secondary to herbicide exposure. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Osborne, Counsel INTRODUCTION The veteran had active military service from August 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision by the RO which denied service connection for diabetes mellitus as secondary to herbicide exposure. FINDINGS OF FACT The veteran served off the shore of Vietnam and subsequently developed adult onset diabetes mellitus. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred during the veteran's active duty in the Republic of Vietnam. 38 U.S.C.A. §§ 1110 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) The VCAA is applicable to the present claim. This law and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West Supp. 2001); 38 C.F.R. §§ 3.102, 3.159(c)-(d) (2002). The law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West Supp. 2001); 38 C.F.R. § 3.159(b) (2002). The record reflects that VA has made reasonable efforts to notify the veteran and his representative of the information and medical evidence necessary to substantiate his claim. The veteran and his representative were provided with a copy of the appealed January 2002 rating decision, and a July 2002 statement of the case. These documents provided notice of the law and governing regulations, as well as the reasons for the determinations made regarding his claim. By way of these documents, the veteran was also specifically informed of the cumulative evidence already having been previously provided to VA, or obtained by VA on his behalf. In a February 2001 VA letter, the veteran was informed of the provisions of the VCAA, the evidence he was responsible for submitting and what evidence VA would obtain in an effort to substantiate his claim. See Quartuccio v. Prinicipi, 16 Vet. App. 183 (2002). Moreover, throughout this appeal process, VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file consists of the veteran's service records, postservice medical records, including VA and private examinations, and assertions made by the veteran in support of his claim. Under the circumstances in this case, the veteran has received the notice and assistance contemplated by law, and adjudication of the claim of service connection for diabetes mellitus poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Background The veteran's service medical records show no complaint, finding or diagnosis of diabetes mellitus. The national personnel record center submitted a report in September 2001 which stated that the veteran served in the Vietnam area from January 1968 to May 1968. The veteran's VA DD 214 Form shows that he served in the Navy aboard the USS HULL and that he received the Meritorious Unit Commendation Ribbon. The veteran submitted a report from the Chief of Naval Operation which stated that the Meritorious Unit Commendation Ribbon was being awarded to those who served from February 1 to July 6, 1968 aboard the USS HULL. It was reported that the USS HULL fired over 25,000 rounds of ammunition in support of various commands and activities in the Republic of Vietnam, often operating at high speeds in close proximity to friendly forces. It was also reported that USS Hull lay well within gun range of hostile shore batteries. She provided continuous support to friendly troops ashore while quickly taking hostile shore batteries under counter battery fire. Postservice medical records from 1998 to 2001 reveals that the veteran was treated for diabetes mellitus. An October 2001 VA examination reports shows that the veteran was diagnosed as having diabetes mellitus at the age of 46. He had no ketoacidosis or hypoglycemic reactions and no restriction of activity. He had blurred vision and he also had numbness in the right little toe. A diagnosis of diabetes mellitus, type II, without complications at this time was diagnosed. On a VA eye examination dated in October 2001, the veteran received a diagnosis of diabetes mellitus with no evidence of any background diabetic retinopathy at this time. In February 2002, the veteran submitted a statement in which he asserted that the USS HULL (his ship) would "hug" the coastline of Vietnam. He stated that they would be as close as 100 yards from the shore. He also reported that in June 1968, he anchored in DaNang harbor for "Operation Swift Saber". He stated that they were inside the coastline. The veteran testified before a member of the Board, sitting in Waco, Texas, in May 2003. His testimony was to the effect that he was aboard the USS HULL and that his ship was close to the shores of Vietnam. He submitted extensive evidence in support of this assertion. This evidence included a history of the USS HULL. This report stated that the USS HULL carried out shore bombardments missions against the Viet Cong base camps along the coast of Vietnam. It was also reported that the ship received artillery fire and one of the closest rounds landed 12 meters off the starboard bow. III. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110. Where a veteran served for 90 days in active wartime service, and diabetes mellitus develops to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. 38 U.S.C.A. §§ 1101, 1112; 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A disease associated with exposure to certain herbicide agents listed in § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). Any disease listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with specified exceptions. A veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The veteran was diagnosed as having diabetes mellitus, type II when he was 46 years of age which was several years after his 1968 service discharge. The evidence shows that his diabetes mellitus would be compensably disabling under 38 C.F.R. § diagnostic code 7913. The veteran is shown to have served in the waters off the shore of the Republic of Vietnam. Therefore, it may be presumed that he was exposed to Agent Orange. Since the veteran developed adult onset diabetes mellitus to the required degree of disability, and since he is presumed to have been exposed the Agent Orange, the requirements of service connection are met on a presumptive basis for this Vietnam veteran. ORDER Service connection for diabetes mellitus as secondary to herbicide exposure is granted. ____________________________________________ DEBORAH W. SINGLETON 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 JUN 2003 (RS) 4597 Page 1 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 FORM JUN 2003 (RS) 4597 Page 2