Citation Nr: 0734812 Decision Date: 11/05/07 Archive Date: 11/19/07 DOCKET NO. 06-18 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for type 2 diabetes mellitus, claimed as secondary to herbicide exposure in service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from February 1952 to February 1956, and from October 1962 to November 1962. The veteran also had reserve service over many years. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision by the Boston, Massachusetts Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for type 2 diabetes mellitus. FINDINGS OF FACT 1. The veteran was exposed to an herbicide agent during active reserve service, when he cleaned a C-123 airplane that had been used to spray herbicides in Vietnam. 2. After service, the veteran was diagnosed with type 2 diabetes mellitus. CONCLUSION OF LAW The veteran's type 2 diabetes mellitus is presumed to be service connected. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The veteran's physician reported that the veteran has been diagnosed with type 2 diabetes mellitus since 1992. The veteran does not claim that he was diagnosed with diabetes during active service. He contends that his diabetes developed as a result of exposure during service to Agent Orange or other herbicides. Under certain circumstances, service connection for specific diseases may be presumed if a veteran was exposed during service to certain herbicides, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). If a veteran was exposed to Agent Orange or another herbicide agent, service connection for certain conditions listed under 38 C.F.R. § 3.309(e), including type 2 diabetes mellitus, will be presumed if the condition becomes manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to 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 service. 38 C.F.R. § 3.307(a)(6)(iii). In this case, the veteran did not serve in Vietnam. He reports that he was exposed to an herbicide during reserve service in the United States in the early 1970s, through working on an airplane that was used to spray herbicides in Vietnam. The circumstances of the veteran's service do not raise a presumption that he was exposed to an herbicide. His claim of herbicide exposure will be considered based on the assembled evidence. In a March 2004 claim for VA benefits, a July 2004 VA medical examination, and in testimony under oath at a September 2007 Travel Board hearing before the undersigned Acting Veterans Law Judge, the veteran described the circumstances of his exposure to an herbicide. He reported that, after his active service in the United States Air Force (USAF), he served for many years in the Air Force Reserve as an Air Reserve Technician (ART). He stated that during this service in 1972, at Hanscom Air Force Base (AFB) in Massachusetts, the base received a particular C-123 airplane, with the serial number 56-4362. He and others were assigned to clean out the airplane. Under the floorboards of the airplane there was a big container of a substance. The supervising officer said that the substance was defoliant. The substance had also spilled around and dried in the inside of the aircraft, including in the ribs and spars. The veteran and the others worked cleaning the inside of the aircraft over a period of weeks. The veteran wore some protective equipment such as goggles and rubber gloves, but he was not provided a mask. The veteran reported that the same airplane was later transferred to the Air Force Museum. In March 2004, Mr. J. A. V. wrote that he had served as an ART at Hanscom Field from 1966 to 1973. Mr. V. stated that in 1972 and 1973 he was on a crew that was assigned to decontaminate a C-123, serial number 56-4362. He reported that the veteran was one of the other technicians assigned to that task. He related that the floor boards were removed, and they scrubbed areas that were saturated with Agent Orange. He stated that the process went on for weeks. The veteran submitted a printed out page from the website of the National Museum of the United States Air Force, at Wright-Patterson AFB in Ohio. The page describes a C-123 that is on display at the museum. The serial number of the airplane is 56-4362, and the photograph of the airplane shows the numbers 64362 on the tail. The page indicates that the airplane entered service in 1957, and served in Vietnam in 1961 to 1972, flying low level defoliant and insecticide spray missions. The airplane was flown to the museum in 1980. The claims file contains statements of service reports dated in 1967 and 1976 that list the veteran's dates of active service from 1952 to 1975. During those years, the veteran had periods of active reserve service ranging from one to seventeen days. In 1972 and 1973, he had twelve periods of one to six days, and one of seventeen days. The claims file also contains a service aerospace vehicle history/posting report. That report shows that the C-123 serial number 56004362 was in Vietnam in January 1972, and was at Hanscom AFB in December 1972, and again in May 1973. Mr. V. corroborated the veteran's account of cleaning a defoliant out of a particular C-123 during reserve service at Hanscom. The service and museum records document the veteran's reserve service in 1972 and 1973, the presence of that C-123 at Hanscom in 1972 and 1973, the use of that C-123 in spraying defoliant in Vietnam, and service of that airplane in Vietnam in 1972. Overall, the evidence reasonably supports the veteran's account of herbicide exposure. The Board will concede that the veteran was exposed to an herbicide during service. The Board accepts that the veteran was exposed to an herbicide during service. The veteran was diagnosed with type 2 diabetes after service. The Board presumes that the veteran's diabetes is service connected, and grants his claim. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Therefore, the Board need not provide further notification or assistance to the veteran. The Board also does not need to discuss further VA's compliance with the laws and regulations involving notification and the development of evidence. ORDER Entitlement to service connection for type 2 diabetes mellitus is granted. ____________________________________________ M. E. LARKIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs