Citation Nr: 0729785 Decision Date: 09/21/07 Archive Date: 10/01/07 DOCKET NO. 04-34 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for Type II Diabetes Mellitus, claimed as due to exposure to herbicides (Agent Orange). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran had active military service from December 1968 to November 1971. This appeal to the Board of Veterans' Appeals (Board) is from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In August 2006, to support his claim, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). In a statement from his representative (on VA Form 646) received about a month prior to the hearing, the veteran withdrew his appeal for service connection for post-traumatic stress disorder (PTSD). 38 C.F.R. § 20.204 (2007). So only the claim concerning his diabetes remains. FINDINGS OF FACT 1. The veteran had active military service along the demilitarized zone (DMZ) in the Republic of South Korea during July 1969. 2. Based on credible information obtained concerning the circumstances of his service in South Korea during the time mentioned, it is just as likely as not the veteran's Type II Diabetes Mellitus is the result of his exposure to herbicides while there. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, it is presumed the veteran's Type II Diabetes Mellitus was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance in developing their claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The Board is granting the veteran's diabetes mellitus claim, so any concerns about whether there has been compliance with the notice and duty to assist provisions of the VCAA are inconsequential. Cf. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary of VA not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). This is akin to the situation here inasmuch as the mere fact that the Board is granting the claim, in full, necessarily means no further notification or development of the claim is needed since the requested benefit is being granted, regardless. Governing Laws and Regulations Service connection will be granted if it is shown that the veteran has a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during service if manifested to a compensable degree within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). VA considers the dioxin in Agent Orange to be included in this regulation. A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any other condition for which the Secretary of VA has not specifically determined a presumption of service connection is warranted. Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003). The United States Court of Appeals for the Federal Circuit has held, however, that the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102; see, too, Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Analysis The relevant medical evidence of record includes a March 2004 note from the veteran's private physician confirming the veteran has diabetes, though controlled. So he has the required evidence of current disability in the way of a medical diagnosis of the condition claimed. See Hickson, supra. See also Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (Service connection presupposes a current diagnosis of the claimed disability). The veteran's service medical records, however, are completely unremarkable for indications of diabetes - either in the way of a pertinent complaint (e.g., a relevant symptom) or objective clinical finding. There also is no evidence of this condition within the required one year of his discharge from the military to warrant presuming the condition initially manifested during service under 38 C.F.R. § 3.309(a). That said, the veteran can still establish his entitlement to service connection for the diabetes by taking advantage of the other presumptive provision mentioned, 38 C.F.R. § 3.309(e) - even though he did not have service specifically in the Republic of Vietnam, as he originally indicated on his October 2003 claim, and despite the fact that he does not currently allege that he served in or around Vietnam. The principle contentions now advanced by him are that he began going on missions to forward operating areas near the DMZ shortly after arriving in Korea. He says these missions included delivering "personal things" and repairing airplanes; other records show his military occupational specialty (MOS) was indeed an airplane repairman. He also indicated in correspondence received in July 2006 that he flew various missions over the DMZ area. The veteran's Department of Defense Form 214 (DD Form 214), his other military personnel records, and lay statements all confirm he served in Korea during 1969 and 1970. His DA Form 20, in particular, indicates he served in the Republic of South Korea from July 7, 1969 to August 6, 1970. The Department of Defense has indicated that Agent Orange was used in the Republic of South Korea from April 1968 to July 1969. See, e.g., VHA Directive 2000-027 (September 5, 2000). Based on the current Department of Defense findings, the use of herbicides has only been acknowledged for specific units that served in areas along the DMZ in Korea between April 1968 and July 1969 (March 2003 fact sheet distributed by the Veterans Benefits Administration (VBA), which was posted in September 2003). The primary use of Agent Orange in the Republic of South Korea was to defoliate the fields of fire between the front line defensive positions and the south barrier fence of the DMZ. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the "civilian control line." With respect to the evidence of record, the veteran's service personnel records show he was assigned to the 59th Aviation Company. An inquiry by the RO to the Joint Services Records Research Center (JSRRC, formerly USASCRUR) returned a finding that flights from this outfit were flying and monitoring the DMZ. The 6th Platoon of this unit was recognized for serving with distinction in airlifting the Eighth US Army Quick Reaction Forces, and an aircraft from this unit was shot down in August 1969 over North Korea, so presumably having flown through the DMZ. These records also show the members of the 59th Aviation Company did have service near and potentially in the DMZ, as the veteran contends. There is no evidence contradicting the veteran's testimony -- that he served near the DMZ in July 1969 near the end of the time period covered by this special dispensation. Also, his service medical records indicate he received contemporaneous treatment from the 125th Medical Detachment in August 1969, shortly after his arrival in the Republic of South Korea. The 125th was located in Uijongbu, a town approximately 30 miles from the DMZ. So he certainly was stationed in the general vicinity. Based on this evidence, it appears with reasonable certainty that he was attached to a unit that was assigned to duties in the area of the DMZ. Therefore, it is as likely as not he served proximate to the DMZ; and resolving all reasonable doubt in his favor, service there is conceded. Consequently, the Board finds that he would have been exposed to Agent Orange in performing his duties with the 59th Aviation Company along the DMZ in July 1969. As indicated in 38 C.F.R. § 3.309(e), if the veteran was exposed to an herbicide agent (here, the dioxin in Agent Orange), then service connection for diabetes mellitus may be established on a presumptive basis - even though, as here, there is no record of this condition during service. So the veteran's Type II Diabetes Mellitus is presumed to have been caused by his exposure to herbicides while serving along the DMZ in the Republic of South Korea in July 1969. Resolving all reasonable doubt in favor of the veteran, service connection for diabetes mellitus is granted. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for diabetes mellitus is granted ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs