Citation Nr: 0806141 Decision Date: 02/22/08 Archive Date: 03/03/08 DOCKET NO. 06-30 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, including as due to herbicide exposure. 2. Entitlement to service connection for a respiratory disorder, including as due to herbicide exposure, and/or mustard gas/lewisite exposure. 3. Entitlement to service connection for a heart disorder, including as due to herbicide exposure, and/or mustard gas/lewisite exposure. 4. Entitlement to service connection for hypertension, including as due to herbicide exposure, and/or mustard gas/lewisite exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The appellant served on active duty from December 1973 to December 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Muskogee, Oklahoma, VA Regional Office (RO). In connection with his appeal, the appellant testified before the undersigned Veterans Law Judge in Washington, D.C., via videoconference in January 2008. A transcript of the hearing has been associated with the claims file. A VA Form 21-4138, executed in January 2008, reflects that the appellant waived initial agency of original jurisdiction (AOJ) consideration of additional evidence submitted at the hearing. The issues of entitlement to service connection for a respiratory disorder, a heart disorder, and hypertension are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The appellant was exposed to Agent Orange while stationed on Johnston Island from June 1975 to July 1976. 2. The competent evidence establishes a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW Diabetes mellitus type II is presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 1116 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the appellant claim for diabetes mellitus is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Criteria Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy (defined as 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), 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). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Notwithstanding the provisions of §§ 3.307, 3.309, the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant asserts that he incurred diabetes mellitus type II due to herbicide exposure in service. Diabetes mellitus type II is a presumptive disease listed at 38 C.F.R. § 3.309(e). The Board notes that the appellant has limited his claim of exposure to herbicides to exposure on Johnston Island, obviating the need for a discussion of exposure elsewhere, to include the Republic of Vietnam. The service records document that the appellant was stationed on Johnston Island from June 1975 to July 1976. In support of his claim, the appellant submitted a letter from the Department of the Army, dated in May 1975, welcoming him to his assignment to the 267th Chemical Company on Johnston Island. An orientation packet notes that the mission of the 267th Chemical Company, noted to also be known as "Red Hat," was to provide for the storage, maintenance, security, issuance, and surveillance of chemical munitions. In a July 2005 statement in support of the claim, the appellant stated that upon arriving on Johnston Island, he was provided with a gas mask, and that on his way to his guard post every day, he passed by oxidizing drums of Agent Orange. In correspondence received from a fellow service member in July 2005, the individual noted that during his service on Johnston Island from July 1975 to August 1976, he observed hundreds of barrels of Agent Orange that were stored in 50-gallon drums in an open air compound in close proximity to the post and barracks. It was noted that the barrels appeared to have been "oxidized" as a result of exposure to the salt water surrounding the island, and that on two or three occasions, alerts of possible wind shifts were issued nearly causing the island to be evacuated during monsoon season. In the September 2006 VA Form 9, the appellant stated that his sleeping quarters were located in close proximity to the area in which many barrels of Agent Orange were stored, that he worked as a security guard at the chemical company patrolling storage areas by foot, and that he observed barrels of Agent Orange leaking. Transcript at 4-8 (2008). The appellant provided sworn testimony to the effect that his company commander told him that the barrels contained Agent Orange. Id. at 13. Also submitted in support of the claim, are several articles printed from the internet, to include one entitled Johnston Atoll, with information noted to have been compiled from United States government publications. One article notes that after WW II, Johnston Island had been the site of the Johnston Atoll Chemical Agent Disposal System (JACADS). It was noted that after 1962, radioactive debris and soils were placed in a 25-acre landfill on the Island, along with residue from Agent Orange containers returned from Vietnam after the war. Another article notes that the island had been contaminated by Agent Orange. Regarding the alleged exposure on Johnston Island, Congressman Lane Evans, the Ranking Democratic Member on the House Committee on Veterans' Affairs, sought establishment of a presumption of herbicide exposure for all veterans who served on Johnston Island in the North Pacific between 1971 and 1977. In a November 19, 2004 letter, former VA Secretary Anthony Principi advised Congressman Evans that the presumption of exposure was not warranted for veterans who served on Johnston Island. That determination was based on an analysis that indicated that the government's storage of herbicides on Johnston Island did not raise the same identification concerns as presented in Vietnam. Rather, Secretary Principi stated that the storage of herbicides on Johnston Island was more closely associated with the storage of herbicides at military installations in the United States and the spraying that occurred along the Korean DMZ in the late 1960s. Secretary Principi added that very few veterans who served on Johnston Island had duties that involved the direct handling of herbicides. Accordingly, for veterans who served on Johnston Island in the North Pacific between 1971 and 1977, exposure to herbicides must be verified through evidence developed during the adjudication of the claim; a presumption of herbicide exposure has not been established by VA. In the present case, the Board finds that there is sufficient verification that the appellant was exposed to Agent Orange while stationed on Johnston Island. As noted above, the service records show that the appellant was stationed on Johnston Island from June 1975 to July 1976. The evidence in this case, to include the articles and buddy statement submitted by the appellant, coupled with the appellant's credible testimony and other evidence of record, tends to establish the presence of Agent Orange on Johnston Island. The fact that the appellant was stationed on Johnston Island where Agent Orange herbicide was present would strongly suggest that he was, in fact, exposed to such herbicides. The fact and circumstances of the present case are similar to the facts and circumstances in Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) and Suozzi v. Brown, 10 Vet. App. 307 (1997). In Pentecost and Suozzi, the Court provided specific guidance for the adjudication of post traumatic stress disorder claims when the claimed stressor is exposure to enemy fire. See Pentecost, supra; Suozzi, supra. In Suozzi v. Brown, 10 Vet. App. 307 (1997), the Court held that by requiring corroboration of every detail, including the veteran's personal participation, VA had defined "corroboration" too narrowly. Id. at 311. In Suozzi, the Court found that a radio log, which showed that the claimant's company had come under attack, was new and material evidence to warrant reopening a claim of service connection for post traumatic stress disorder, despite the fact that the radio log did not identify the veteran's participation. The Court further stressed that the evidence favorably corroborated the veteran's alleged in-service stressor. Id. Moreover, in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court reaffirmed its holding in Suozzi. In that case, the Court stated that the veteran's unit records constituted independent descriptions of rocket attacks that were experienced by the veteran's unit when he was stationed in Vietnam, which, when viewed in the light most favorable to the veteran, objectively corroborated his claim of having experienced rocket attacks. The Court reiterated that, although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. In doing so, the Court underscored that it had made clear in Suozzi that corroboration of every detail of a claimed stressor is not required, and that the claimant's presence with his unit at the time that the attacks occurred corroborated his statement that he experienced such attacks personally, and thus, his unit records were clearly credible evidence that the rocket attacks that he alleges occurred did, in fact, occur. Id. at 128-129. These cases, taken together, stand for the proposition that if a veteran may be placed in the vicinity of a documented incident, it is not necessary that his exact location be pinpointed. The Court has expressly held that a veteran need not prove "every detail" of an alleged stressor under such circumstances. In both of those cases, the existence of the claimed events was confirmed by official sources, as was the involvement of the veteran's unit; only the veteran's individual involvement was questioned. The Court has held that corroboration of every detail of a claimed stressor, including the appellant's personal participation, is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124 (2002). In the present case, while the appellant has not established that he was personally exposed to the herbicide agents, there is sufficient evidence to imply that the appellant was at least in the vicinity of the Agent Orange herbicide. The evidence of record establishes that the appellant was on Johnston Island and that there were at least residuals of Agent Orange on Johnston Island and/or Agent Orange was stored on the island. Applying the reasoning of Pentecost and Suozzi, supra, the Board finds that this evidence tends to establish that the appellant was exposed to herbicide agents while serving on Johnston Island. Thus, having resolved doubt in favor of the appellant, the Board concludes that there is sufficient verification that the appellant was exposed to herbicide agents on Johnston Island. If a veteran was exposed to a herbicide agent during active military, naval, or air service, diabetes mellitus type II shall be service-connected if there is competent evidence that the diabetes mellitus type II became manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). There is competent evidence that the diabetes mellitus type II manifested to a degree of 10 percent or more after service. VA treatment records, dated in February 2001, show a diagnosis of diabetes mellitus, type II, with an onset in January 2001 and treatment for such thereafter. In conclusion, the Board finds that there is sufficient evidence which verifies that the appellant was exposed to Agent Orange while stationed on Johnston Island and there is competent evidence of diabetes mellitus type II manifested to a compensable degree after service. Therefore, the Board finds that the evidence is in favor of the claim. Consequently, the benefits sought on appeal are granted. ORDER Service connection for diabetes mellitus type II is granted. REMAND The appellant claims entitlement to service connection for a lung disorder that allegedly developed secondary to his exposure to nerve gas while serving on Johnston Island from June 1975 to July 1976. A May 1975 letter to the appellant from his Commander notes that the primary mission on Johnston Island consisted of maintaining a forty-one acre chemical munitions storage area, called Red Hat, having forty-three storage structures containing about 13,000 tons of munitions. At the hearing, he testified that while serving on Johnston Island, his duties included guarding an enclosure in which nerve gas was stored. Transcript at 13. He noted that in order to determine if there was a leak, a rabbit would be placed in the enclosure before each unit entered the enclosure, and if there was a leak, the rabbit would either die or it would have some other observable physiological reaction. Id. at 14. The appellant's service personnel records confirm that he served on Johnston Island as a military policeman, with duties involving the storage of chemical weapons. The question thus becomes whether the appellant has a lung disorder that relates to these operations. The Board notes that at service entrance in December 1973, and on examination in August 1975 at the Johnston Island hospital, the heart, and chest and lungs were normal. A chest x-ray examination in August 1975 was normal. In September 1976, complaints were noted to include wheezing. An October 1976 treatment record reflects complaints of recurrent edema of subcutaneous tissue on the hand and feet for approximately six months. The examiner noted that the appellant had been to Johnston Island. The impressions included angroedema and rule out an inhalation deficiency. The November 1976 separation examination report shows that the heart, and chest and lungs were normal. A private record of treatment, dated in February 1998, shows impressions consistent with bronchitis of the right peribronchial area, and acute bronchitis, contusion of the right chest wall, and left anterior vesicular block - abnormal echocardiogram (EKG). The impression of an August 2004 chest x-ray examination was no active lung disease. The cardiac silhouette was noted to be normal in size, and mediastinal and hilar shadows were unremarkable. COPD was noted. The bones were noted to appear intact and no significant change since the previous examination on December 18, 2001 was noted. The Board notes that the December 18, 2001 VA x-ray examination report has not been associated with the claims file. The Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). In cases involving alleged exposure to nerve gas, specifically, nitrogen, sulfur mustard, and Lewisite, service connection may be presumed if the veteran experienced: (1) Full body exposure; (2) to the specified vesicant agent; (3) during active military service; and (4) the subsequent development of certain specified conditions, including bronchitis and chronic obstructive pulmonary disease. 38 C.F.R. § 3.316 (2007). VA's duty to assist includes providing the claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. In this case, such an examination is necessary. Lastly, the Board notes that the AOJ issued a supplemental statement of the case in August 2007 based on the appellant's submission of additional evidence. Under the Reasons and Bases portion pertaining to issues 2 & 3, the AOJ stated that service connection for diabetes mellitus was denied. Issues 2 & 3, however, as listed on the title page of the supplemental of the statement of the case and as reflected in the headings of issues 2 & 3, pertain to service connection for a heart disorder and hypertension, respectively. Further development is necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the service department and any other appropriate authority for the purpose of obtaining additional information on the operation of Red Hat on Johnston Island. The AOJ should specifically ask the service department to identify the types of nerve gas, including, if appropriate, sulfur mustard, nitrogen, Lewisite, and/or nitrogen mustard, stored at Johnston Island between June 1975 and July 1976. The AOJ should make a determination as to whether the appellant had exposure to any of the above and if so, identify the type of exposure, e.g., full body exposure. 2. The AOJ should attempt to associate the December 18, 2001 x-ray examination report with the claims file. 3. The AOJ should schedule the appellant for a VA examination with a physician who specializes in respiratory disorders to determine the nature and etiology of any respiratory disorder identified. The claims file should be made available for review and the examiner's attention should be directed to this remand. All necessary tests should be conducted. The AOJ should request that the examiner provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any identified respiratory/lung disorder is related to service, including exposure to nerve gas and/or any in-service manifestations, such as wheezing. A complete rationale should accompany all opinions provided. 4. In light of the above, the AOJ should readjudicate the claims. If any of the benefits sought on appeal remain denied, a supplemental statement of the case should be issued, with reference to the relevant disorders, to include a heart disorder and hypertension, under the appropriate headings. The appellant should be afforded a reasonable period of time in which to respond to any supplemental statement of the case issued. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs