Citation Nr: 1132526 Decision Date: 09/02/11 Archive Date: 09/12/11 DOCKET NO. 08-25 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2009, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2009, the Board remanded this matter for further development. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, diabetes mellitus, type II, is etiologically related to the Veteran's period of active service. CONCLUSION OF LAW The criteria for the establishment of service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of this service connection claim for diabetes at present without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Also, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed in 38 C.F.R. § 3.309(e) 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. Specific diseases, to include Type II diabetes mellitus or adult-onset diabetes, have been found to be associated with exposure to certain herbicide agents used in the Republic of Vietnam. 38 C.F.R. § 3.309(e). As such, if a Veteran is found to have been exposed to tactical herbicides during his military service, such as the chemical defoliant commonly known as "Agent Orange," service connection of a disease associated with that exposure is warranted on a presumptive basis even though there is no record of any such disease in service. Id.; see also 38 C.F.R. § 3.307(a)(6). Service in the Republic of Vietnam is interpreted as requiring service on the land mass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). VA regulations also provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including diabetes mellitus, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when 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). Generally, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran seeks service connection for diabetes mellitus, type II. In his written submissions and oral testimony, the Veteran has contended that his diabetes is due to his exposure to herbicides from September 1972 to December 1972 while stationed at Fort McClellan, Alabama, with the Army Chemical Corps while on Advanced Infantry Training (AIT). The Veteran has also contended that he might have been exposed to herbicides later in service while a senior chemical equipment repairman while stationed in Germany. He testified that he repaired chemical equipment, including flame throwers, and transported chemicals. When the Veteran submitted his claim in September 2006, he asserted that while in service he repaired equipment returned from Vietnam that had been exposed to herbicides. The Veteran's DD 214 reflects his 9-week assignment in 1972 to Fort McClellan as a chemical equipment repairman. His service personnel records show his assignments in Germany as a senior chemical equipment repairman from September 1973 with the 78th Maintenance Company; from July 1975 with the Headquarters of the 87th Maintenance Battalion; and from January 1976 to October 1976 with the 472nd Signal Company. The factual background and medical evidence were set forth in the Board's November 2009 remand and its April 2011 request for an expert medical opinion from the Veterans Benefit Administration, and there is no reason to repeat them in this decision. In July 2011, W.D.G., M.D., an occupational physician in VA's primary care service at the Dayton VA Medical Center, prepared an expert medical opinion related to this appeal. In it, Dr. W.D.G. related that he had spoken with a staff member at the Directorate of Occupational and Environmental Medicine at the U.S. Army Public Health Command at the Aberdeen Proving Ground, who told him that it was possible for a chemical equipment repairman to have been exposed to Agent Orange while not actually serving in Vietnam. He was told that during the Vietnam War, equipment returning from Vietnam was not normally thoroughly cleaned before being redeployed back to the United States. Dr. W.D.G. concluded that the activities of cleaning equipment used in the storage, transport, use and dissemination of Agent Orange at Fort McClellan in 1972 could have exposed a chemical equipment repairman to the oily substance of Agent Orange. The possibility of any exposure to dioxin at Fort McClellan was based on the Veteran's type of unit and duties and the fact that Fort McClellan in general has been a site subjected to numerous environmental contamination complaints and investigations. Dr. W.D.G. stated that the fact that the Veteran had a serum dioxin level of 5.700 parts per trillion (PPT) is evidence of exposure, although not necessarily from a military-related exposure. However, he found it very possible that the Veteran was engaged in activities at Fort McClellan in 1972 as a chemical equipment repairman that would have put him in direct contact with Agent Orange. Because the Veteran has diabetes mellitus, type II, and it is presumed that diabetes is related to exposure to Agent Orange, Dr. W.D.G. opined that it was as least as likely as not that the Veteran's diabetes mellitus, type II, is etiologically related to his period of active service. Based upon a review of all the evidence of record, the Board finds that service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, is warranted in this case. Initially, the Board notes that since the Veteran concedes that he never served on the land within the borders of the Republic of Vietnam, he is not eligible for presumptive service connection for diabetes mellitus, type II, based on exposure to herbicides under the provisions of 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e). See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding foot-on-land rule to be permissible statutory interpretation), cert. denied, 129 S. Ct. 1002 (2009). Though this presumptive theory for service connection is not in his favor, because the Veteran never actually served within the borders of Vietnam, service connection on a direct basis is still available. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As the Veteran currently is diagnosed with diabetes mellitus, type II, the first requirement for direct service connection is met as the Veteran has been diagnosed with a current disability. Regarding the second requirement for establishing service connection on a direct basis, service treatment records, including his discharge examination, are negative for any reference to a diagnosed diabetic condition. However, the Board finds competent and credible the lay evidence presented as to the origin or onset of the Veteran's diabetic disease. Viewing the evidence most favorably in favor of the Veteran, the origin or onset of his diabetes occurred in 1972, during his first year of active duty, when he was exposed to herbicides from September 1972 to December 1972 while stationed at Fort McClellan, Alabama, with the Army Chemical Corps while on AIT. He testified that he repaired chemical equipment returned from Vietnam that had been exposed to herbicides, including flame throwers, and transported chemicals. The United States Court of Appeal for the Federal Circuit (Federal Circuit) has explicitly rejected the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Board finds that the Veteran's written and oral testimony about his exposure to herbicides in service is credible. Subjective or lay evidence can be probative for purposes of establishing service connection especially when, as here, it would be unlikely service treatment records would show contemporaneous treatment and diagnosis for diabetes immediately after exposure to Agent Orange and the lay evidence is bolstered by the VA medical expert who, in his professional expertise, apparently considered the Veteran's subjective evidence credible history. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006) (discussing that competent and credible lay evidence alone can be sufficient to establish that the symptoms of a chronic disease arose in service). In addition, the Veteran's lay evidence is bolstered by a study of Army Chemical Corps veterans found in the claims file. According to this study, the lipid-adjusted dioxin concentration of his blood sample was measured as 5.700 ppt., a level lower than that of Vietnam veterans who reported a history of spraying herbicides in Vietnam (6.705 ppt.), but higher than that of Vietnam veterans who reported no history of spraying herbicides in the military (4.010 ppt.) and of non-Vietnam veterans who reported no history of spraying herbicides in the military (4.188 ppt.). Therefore, the Board finds that the second requirement for service connection on a direct basis is also met for this claim. With respect to the third requirement, the Board notes the July 2011 opinion of the VA medical expert who said that the Veteran's diabetes was at least as likely as not caused by or related to his period of active service. In view of the Board's finding that the Veteran's lay testimony about his exposure to herbicides and the onset of his disease is credible, the Board also finds that the lay evidence of the Veteran and his Army duties as a chemical equipment repairman in service support the probity of the July 2011 VA expert's medical nexus opinion. The Board finds that this opinion is highly probative evidence in support of service connection. It was based on an accurate review of the medical record, the Veteran's service record, and a credible evaluation of the Veteran's history. The Board finds that under the circumstances of this case and upon granting the Veteran the benefit of the doubt, the July 2011 VA medical opinion, when taken together with the credible lay evidence of the Veteran concerning his exposure to herbicides in service, are sufficient to provide proof of a nexus, or relationship, between the Veteran's currently diagnosed diabetes mellitus, type II, and his period of active military service. Further inquiry could be undertaken with a view towards development of the claim. However, resolving all reasonable doubt in the Veteran's favor, the Board further finds that the third requirement for service connection on a direct basis for diabetes mellitus, type II, is met in this case. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted for the Veteran's diabetes mellitus, type II. As the Board finds that the Veteran has provided evidence of all three elements required for a grant of service connection for his claim, the claim for service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, is granted. (CONTINUED ON THE FOLLOWING PAGE) ORDER Service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs