Citation Nr: 1229115 Decision Date: 08/24/12 Archive Date: 08/30/12 DOCKET NO. 09-13 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for diabetes mellitus type II, as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from January 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2011, the Veteran presented testimony relevant to his appeal before the undersigned Veterans Law Judge at a Board hearing held at the RO. A transcript of the hearing is associated with the record. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Board finds that there is sufficient evidence of exposure to herbicide agents while serving in Thailand during the Vietnam era. 2. The Veteran has a current diagnosis of diabetes mellitus type II. 3. Under VA law, diabetes mellitus type II is on the presumptive list of diseases associated with herbicide exposure. CONCLUSION OF LAW Giving the benefit of the doubt to the Veteran, diabetes mellitus type II was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In view of the favorable disposition below, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claim are rendered moot. II. Pertinent Law, Facts, and Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. It is noted, however, that although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to a herbicide agent during active service, presumptive service connection is warranted for several medical conditions, including Type II diabetes. 38 C.F.R. § 3.309(e) (2011). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. In this case, the Veteran asserts that he was exposed to herbicide agents while he was stationed at the Korat Royal Thai Air Force Base (RTAFB) in Thailand from 1974 to 1975. He maintains that although his Military Occupational Specialty (MOS) was as an information specialist/ radio and television broadcasting specialist, he also had other duties which included perimeter guard duty. The Veteran states that he had to guard planes along the perimeter. He contends that in-service herbicide exposure led him to develop diabetes mellitus type II. The Veteran seeks entitlement to service-connected disability compensation benefits on these bases. At the outset, there is ample evidence of record showing that the Veteran is currently diagnosed with diabetes mellitus type II. VA Medical Center (VAMC) outpatient treatment records, dated from November 2003 to October 2007, show intermittent treatment for the Veteran's diabetes mellitus type II. Under VA law, diabetes mellitus type II is on the presumptive list of diseases associated with herbicide exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2011). Thus, clearly there is a medically proven link between herbicide exposure and diabetes mellitus type II. Therefore, resolution of the issue on appeal turns on whether the Veteran is determined to have been exposed to herbicide agents in service. Initially, the Board notes that the Veteran was not stationed in the Republic of Vietnam at any time during his active service. Although the Veteran has alleged temporary duty in Vietnam (see March 2011 Travel Board hearing transcript and VA Form 21-4138, Statement in Support of Claim, dated in October 2006), there is insufficient evidence of such visitation in the record to find that he has qualifying Vietnam service for the purposes of presumptive service connection under 38 C.F.R. § 3.309(e). See January 2007 response from the National Personnel Records Center (NPRC) in which the NPRC reported that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. Thus, the Board will consider whether the evidence of record shows that the Veteran was exposed to herbicide agents during his period of service in Thailand, as he contends. The Veteran's DD Form 214, Report of Separation From Active Duty, shows that he served in the United States Air Force from January 1974 to May 1977. His MOS was as an information specialist/ radio and television broadcasting specialist. In addition, although the exact dates of the Veteran's service in Thailand are not known, his service treatment records specifically show that in December 1975 and February 1976, the Veteran received treatment at the Korat RTAFB in Thailand. Thus, clearly the Veteran's service records show that he was stationed in Thailand from at least December 1975 to February 1976. However, there is no specific mention of exposure to herbicide agents in his service records. The Board notes that in a letter from Major General C. of the United States Air Force, Director, Legislative Liaison, dated in December 2008, he stated that the archivists of the Air Force Historical Research Agency at the Maxwell Air Force Base in Alabama, researched their files and found a portion of the Korat RTAFB newspaper, the "Sawadee Flyer," that listed the Veteran as the editor of the December 1975 issue, proving his presence at that base at that time. The Board finds that this is additional evidence which confirms that the Veteran was stationed at Korat RTAFB during service. However, it does not confirm exposure to herbicides during service. The record reflects that the RO asked the NPRC for any documents showing the Veteran's exposure to herbicide agents. However, it responded that there was no record of exposure to herbicides for the Veteran. In response to an inquiry by the RO regarding the DoD's (Department of Defense) inventory of herbicide operations in Thailand, the VA Compensation and Pension (C&P) Policy Staff submitted a statement in December 2008. In the statement, the C&P stated that they had reviewed a listing of herbicide use and test sites outside of Vietnam provided by the DoD. Regarding Thailand service, the DoD list showed extensive testing of herbicides was conducted in Thailand from 1964 to 1965. The only specific location identified was the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand, which was not where the Veteran was stationed. In addition, there was no record of tactical herbicide storage in Thailand. The C&P also noted that no aerial spraying of herbicides occurred in Thailand. According to the C&P, the Veteran may have been referring to some small-scale brush or weed clearing activity around his base, but there was no record of such activity with DoD and no way to know the chemical content of any such non-tactical herbicide use. Thus, the C&P indicated that they could not provide any evidence to support the Veteran's claim. Accordingly, in light of the above, despite the evidentiary development performed by the RO, there is no explicit evidence showing that the Veteran was exposed to herbicide agents while stationed in Thailand. However, as pointed out by the Veteran's representative at the March 2011 Board hearing, VA's C&P Service has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, which the Board notes was subsequent to the December 2008 C&P statement discussed above, the C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era DoD document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DoD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Korat. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. At the March 2011 Board hearing before the undersigned, the Veteran testified that he was stationed at the Korat RTAFB in Thailand. He reported that although his MOS was an information specialist/ radio and television broadcasting specialist, he also had other duties which included perimeter guard duty. Upon consideration of the Veteran's hearing testimony, and the evidence of record, the Board finds the duties described by the Veteran at the hearing to be consistent with the circumstances and conditions of his service. While there is no evidence to confirm the Veteran's report of having performed perimeter guard duty included in the record, it is reasonable to assume that he was assigned duties in addition to his MOS, including performing perimeter guard duty. The Board further finds the Veteran's hearing testimony stating that he was on or near the perimeter of the base to be credible in this regard. Thus, despite the fact that there is no clear evidence of herbicide exposure due to the Veteran's Thailand service shown in the record, the Veteran presented credible hearing testimony before the undersigned stating that his duties required him to be on the perimeter of the base. Therefore, it appears that the Veteran likely performed his duties or otherwise served near the air base perimeter at Korat RTAFB. In view of the information set forth by C&P in the May 2010 bulletin and resolving all reasonable doubt in the Veteran's favor, the Board finds that he was exposed to herbicide agents while he was stationed in Thailand during the Vietnam era. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. In consideration of the foregoing, the Board finds that the Veteran has diabetes mellitus type II that is attributable to his active military service. Thus, service connection is warranted for diabetes mellitus. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for diabetes mellitus type II is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs