Citation Nr: 0912803	
Decision Date: 04/06/09    Archive Date: 04/15/09

DOCKET NO.  07-20 732A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for diabetes mellitus, Type 
II to include as due to herbicide exposure. 


                                                       
REPRESENTATION

Appellant represented by:  American Legion


ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel











INTRODUCTION

The Veteran had active duty service from March 1967 to March 
1969.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2005 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA). The Chairman of the Board issued an order directing the 
Board to stay action on all claims for service connection 
based on exposure to herbicides in which the only evidence of 
exposure is the receipt of the Vietnam Service Medal or 
service in a vessel off the shore of Vietnam. See Chairman's 
Memorandum No. 01-06-24. Due to the stay, the Board could not 
adjudicate the issue of service connection for diabetes 
mellitus to include as due to herbicide exposure. On January 
22, 2009, the Chairman of the Board lifted the stay, and the 
Board will now adjudicate the claim. See Chairman's 
Memorandum No. 01-09-03. 


FINDINGS OF FACT

1. The Veteran served in the inland waters of Vietnam during 
January 1969. 

2. The Veteran is currently diagnosed with diabetes mellitus, 
Type II that is treated by diet restriction and insulin 
medication. 


CONCLUSION OF LAW

The criteria for the establishment of service connection for 
diabetes mellitus, Type II are met. 38 U.S.C.A. §§ 1110, 
5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 
 





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2008). The Board has considered this 
legislation, but finds that, given the favorable action taken 
below, no discussion of the VCAA at this point is required.

Analysis

The Veteran contends that his diabetes resulted from 
herbicide exposure during service. The Board finds that the 
evidence supports the claim, and service connection for 
diabetes is granted.

Service connection will be granted if it is shown that a 
Veteran has a disability resulting from an injury or disease 
contracted in the line of duty, or for aggravation of a 
preexisting injury or disease contracted in the line of duty 
in the active military, naval or air service. 38 U.S.C.A. § 
1110; 38 C.F.R. § 3.303. That an injury incurred in service 
alone is not enough. There must be chronic disability 
resulting from that injury. If there is no showing of a 
resulting chronic condition during service, then a showing of 
continuity of symptomatology after service is required to 
support a finding of chronicity. 38 C.F.R. § 3.303(b).

In addition, service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes that a 
disease was incurred in service. 38 C.F.R. § 3.303(d). 
Generally, to prove service connection, the record must 
contain: (1) medical evidence of a current disability, (2) 
medical evidence, or in certain circumstances, lay testimony 
of an in-service incurrence or aggravation of an injury or 
disease, and (3) medical evidence of a nexus between the 
current disability and the in-service disease or injury. Pond 
v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. 
App. 498 (1995).

Additionally, Veterans who served in Vietnam during the 
Vietnam era are presumed to have been exposed to herbicides. 
See 38 C.F.R. § 3.307(a)(6)(iii) (A Veteran who, during 
active military, naval, or air service, served 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 that 
the Veteran was not exposed to any such agent during that 
service). When a Veteran was exposed to an herbicide agent 
during active military, naval, or air service, certain 
diseases, including diabetes mellitus, Type II, 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.

Thus, service connection may be presumed by showing two 
elements. First, a Veteran must show that he served in the 
Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 
1116; 38 C.F.R. § 3.307(a)(6); Haas v. Peake, 525 F.3d 1168 
(Fed. Cir. 2008). Second, the Veteran must be diagnosed with 
one of the specific diseases associated with herbicide 
exposure listed in 38 C.F.R. § 3.309(e) within the applicable 
time period. See Brock v. Brown, 10 Vet. App. 155, 162 
(1997).

Regarding the first element, the record shows that the 
Veteran served aboard the USS Towers in Vietnam waters. Part 
of the ship's operations involved movement inside the DaNang 
Harbor. DaNang Harbor appears to be located on an interior 
river. The city of DaNang is surrounded by an interior bay, 
as opposed to having direct open sea access. The Veteran 
reported being only a few feet from the soil while aboard the 
USS Towers in the DaNang Harbor. The Board finds that the 
evidence shows service in the interior waters of Vietnam, and 
consequently, the Veteran meets the requisite Vietnam service 
for entitlement to a presumption of herbicide exposure. 
38 C.F.R. § 3.307; Haas, supra.

Turning to the second element, diabetes mellitus, Type II is 
a disease associated with herbicide exposure. 38 C.F.R. 
§§ 3.307, 3.309. If it is manifest to a degree of 10 percent 
or more based on VA disability ratings anytime after service, 
the Veteran is entitled to a presumption that it is related 
to herbicide exposure. Id. VA treatment records show that the 
Veteran has diabetes mellitus, Type II and was placed on diet 
restrictions and insulin for treatment. Thus, the Veteran's 
diabetic disability was manifest to a degree of 10 percent 
based on VA disability ratings following service. 38 C.F.R. 
§ 4.120, Diagnostic Code 7913.

The Board finds that the Veteran meets the presumptive 
provisions for service connection for diabetes mellitus, Type 
II due to herbicide exposure. 38 C.F.R. §§ 3.303, 3.307, 
3.309. Service connection for diabetes mellitus, Type II is 
granted. 


ORDER

Service connection for diabetes mellitus, Type II is granted. 



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs