Citation Nr: 1001344 Decision Date: 01/08/10 Archive Date: 01/15/10 DOCKET NO. 06-17 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to Agent Orange. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the U.S. Navy from June 1965 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2006, the Veteran appeared at a hearing before a Decision Review Officer. In June 2007, he appeared at hearing before the undersigned Veterans Law Judge. Transcripts of the hearings are in the Veteran's file. FINDING OF FACT There is competent and credible evidence that in 1966 the Veteran set foot in Vietnam, where he was presumed to have been exposed to Agent Orange, and diabetes mellitus, type 2, was diagnosed in 2004. CONCLUSION OF LAW Diabetes mellitus, type 2, is presumed to have been incurred during service based on exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Because of the favorable outcome of the decision, no further discussion of VCAA compliance is needed. REASONS AND BASES FOR FINDING AND CONCLUSION Facts The service personnel records show that the Veteran served on active duty from June 1965 to June 1969. His duty assignments included service on the USS Bryce Canyon. His military occupational specialty was an electrician. The records do not show that the Veteran served in Vietnam or that he was given emergency leave. The service treatment records are negative for diabetes mellitus, type 2. After service, VA records document a diagnosis of diabetes mellitus, type 2, in 2004. On VA examination in April 2004, the Veteran stated that he had been in Vietnam for eight hours. In August 2004, he stated that he was in Vietnam in 1966. In February 2006, the Veteran testified that he had a stop over in Vietnam in 1966 on a flight for emergency leave to the United States arranged by a chaplain. He stated that the plane landed in Vietnam, where he got off and he walked around and bought some cigarettes before re-boarded the plane to Travis Air Force Base. He stated that while in Vietnam he had taken some photographs, but he had not found them. In June 2007, the Veteran testified that while aboard ship he got a letter from his mother who was having problems at home and he got emergency leave to return home and his flight landed in Vietnam, where he got off the plane. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303. A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including a herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a) (3); 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military service, diabetes mellitus, type 2, will be presumed to have been incurred in service, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a) (2); 38 C.F.R. §§ 3.307(a) (6), 3.309(e). Analysis The record shows that the Veteran has diabetes mellitus, type 2, which is a disease subject to presumptive service connection for a veteran who served in Vietnam during the Vietnam conflict and was exposed to Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The remaining question is whether the Veteran was actually in Vietnam to trigger the presumption of service connection under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309. Although there is no official record that the Veteran was in Vietnam in 1966 on a stop over flight, the Veteran is competent to describe the events that he had experienced, that is, he was on emergency leave to return to the United States and his flight back landed in Vietnam, where he got off the plane. The Board finds the Veteran's testimony credible. The Board therefore finds that there is competent and credible evidence that the Veteran set foot in Vietnam in 1966 and he was exposed to Agent Orange, triggering the presumption of service connection for diabetes mellitus, type 2, due to exposure to Agent Orange under 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the Veteran is credible and ultimately competent, the lack of contemporaneous evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). Finding no evidence to the contrary, and resolving reasonable doubt in the Veteran's favor, service connection for diabetes mellitus, type 2, is established under 38 U.S.C.A. § 1116. ORDER Service connection for diabetes mellitus, type 2, is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs