Citation Nr: 0831082 Decision Date: 09/12/08 Archive Date: 09/22/08 DOCKET NO. 06-38 815 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for Hodgkin's disease claimed as the result of herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as the result of herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from June 1971 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the RO in Roanoke, Virginia, which denied entitlement to service connection for Hodgkin's disease and diabetes mellitus, type II. The veteran requested a personal hearing at the RO in his December 2006 substantive appeal. The veteran withdrew the request in a March 2008 submission. The veteran testified before the undersigned at an August 2008 hearing at VA Central Office. A transcript has been associated with the file. The Board may proceed. 38 C.F.R. § 20.704(d). Evidence has been received subsequent to the final consideration of the claim by the RO. The veteran, through his representative, has waived RO consideration of that evidence. The Board may consider the appeal. 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The veteran has been diagnosed with Hodgkin's disease and diabetes mellitus, type II. 2. The veteran was exposed to herbicides during active service in Okinawa, receiving contaminated equipment from Vietnam. CONCLUSIONS OF LAW The veteran's Hodgkin's disease was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). The veteran's diabetes mellitus, type II, was presumably incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he has Hodgkin's disease and diabetes mellitus, type II, as a result of exposure to herbicides during service, while working in a warehouse receiving contaminated equipment from Vietnam. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence 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, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 or 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. 38 C.F.R. § 3.309(e) (2007). The veteran's medical records reflect diagnoses of Hodgkin's disease and diabetes mellitus, type II, in 2005. Both Hodgkin's disease and diabetes mellitus, type II, appear on the list of diseases related to herbicide exposure. See id. The veteran has testified, and his service department records show, that he worked in Okinawa, Japan on the Marine Corps base as a warehouseman in 1972 and 1973. He alleges that his unit, the 3rd Service Battalion of the 3rd Marine Division, received equipment from the combat arms battalions operating in Vietnam for repair and decontamination. To that end, the veteran has submitted a report of unit activities from July 1972 to December 1972, showing that the service battalions had been cleaning jungle utilities for the rest of the division and conducting repair operations for a variety of divisional equipment. The Board notes initially that the veteran's service personnel records were not associated with the claims file. The veteran's service treatment records are now of record, and these show treatment at the 3rd Service Battalion dispensary in October 1972. The Board is satisfied that the veteran was present with the unit at the relevant time. The veteran has submitted two August 2006 statements from other servicemen who offered their knowledge of the activities of the 3rd Service Battalion. The first, from J.P., a retired Marine staff sergeant, states that, in the later stages of the Vietnam conflict, Marine units were "redeployed from Vietnam back to Okinawa along with their supplies and equipment." He further states that Marine bases operated decontamination processing units. The second statement, from J.B., indicates that Marine units deploy with assigned equipment and supplies. When moved from Vietnam to Okinawa, units brought contaminated equipment to the base. Furthermore, "[t]he on station personnel assigned to decontaminate and most importantly those personnel in Supply were subjected to various levels of contamination while receiving, inspecting and reissue of supplies [sic passim]." J.B. stated that he served two tours on Okinawa and is familiar with the Decontamination Teams procedures and conditions of the time. The Board finds that the evidence that the veteran was exposed to residual herbicides while working in the 3rd Service Battalion on Okinawa in 1972 and 1973 is at least in equipoise. The veteran has testified to his own exposure and his account of the conditions of his service has been verified by the statements of J.P. and J.B. The 3rd Service Battalion unit records indicate receipt of jungle utilities at the least. Resolving all reasonable doubt in favor of the veteran, the Board finds that the veteran was exposed to herbicides during his period of active service. In sum, the Board finds that the veteran was exposed to herbicides used in the Vietnam conflict while serving on Okinawa in 1972 and 1973. The veteran has also been diagnosed with Hodgkin's disease and diabetes mellitus, type II. The requirements of 38 C.F.R. § 3.307(a)(6) are met, and service connection for both Hodgkin's disease and diabetes mellitus, type II, is warranted. The veteran's claims have been granted, as discussed above. As such, the Board finds that any error related to the Veterans Claims Assistance Act is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for Hodgkin's disease claimed as the result of herbicide exposure is granted. Entitlement to service connection for diabetes mellitus, type II, claimed as the result of herbicide exposure is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs