Citation Nr: 0708979 Decision Date: 03/28/07 Archive Date: 04/09/07 DOCKET NO. 03-29 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for diabetes mellitus type II due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The veteran served on active duty from March 1969 to January 1976. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for diabetes mellitus type II due to herbicide exposure. In a September 2003 rating decision, entitlement to service connection for a renal disorder, congestive heart failure, and hypertension was denied. The veteran was notified of this decision in September 2003. A timely notice of disagreement was filed in September 2003. A statement of the case was issued in July 2006. However, the veteran did not file a timely substantive appeal. Therefore, these issues are not certified for appeal and are not before the Board for appellate consideration. See 38 C.F.R. § 20.200. FINDINGS OF FACT 1. The veteran did not serve in the Republic of the Vietnam during the Vietnam era or along the Korean demilitarized zone from April 1968 through July 1969. 2. Resolving doubt in favor of the veteran, the evidence establishes that the veteran was exposed to Agent Orange herbicides while stationed on Johnston Island from February 1972 to January 1973. 3. There is competent evidence of a current diagnosis of diabetes mellitus type II and the competent evidence establishes that the diabetes mellitus type II requires insulin and a restricted diet. CONCLUSION OF LAW Diabetes mellitus type II is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1116 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Matters: Duty to Notify and Duty to 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (the United States Court of Appeals for the Federal Circuit stated that the purpose of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) is to require that the VA provide affirmative notification to the claimant prior to the initial decision in the case as to the evidence that is needed and who shall be responsible for providing it.). The Board concludes that the veteran has been afforded appropriate notice under the VCAA. The RO provided a VCAA notice letter to the veteran in July 2002, prior to the initial adjudication of the claim. The VCAA letter notified the veteran of what information and evidence must be submitted to substantiate the claim for service connection, as well as what information and evidence must be provided by the veteran and what information and evidence would be obtained by VA. He was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence that pertains to the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Board notes that the July 2002 letter did not inform the veteran of what information and evidence must be submitted to substantiate a claim for service connection for a disease presumed to be due to herbicide exposure. However, the evidence of record shows that the veteran had actual knowledge of what information or evidence was needed to substantiate this type of claim. For instance, the veteran asserts that he was exposed to Agent Orange while stationed on Johnston Island and he submitted several articles regarding the storage of Agent Orange and other chemicals on Johnston Island. This shows that the veteran had actual knowledge that he needed to establish exposure to herbicide agents in order for the presumptive regulations to apply. The Court of Appeals for Veterans Claims (Court) in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Element (1) is not at issue. Regarding elements (2) and (3) (current existence of a disability and relationship of such disability to the veteran's service), the veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Regarding elements (4) and (5) (degree of disability and effective date), the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, as discussed in detail below, the evidence of record supports the claim for service connection, and therefore any questions as to whether the veteran was prejudiced by improper VCAA notice are rendered moot. The Board finds that all relevant evidence has been obtained with regard to the veteran's claim for service connection, and the duty to assist requirements have been satisfied. All available service medical records and service personnel records were obtained. The veteran reported that he received treatment by Dr. Y.M. for diabetes mellitus and those records were obtained. There is no identified relevant evidence that has not been accounted for. In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where 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). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is provided for specified diseases manifested to a degree of 10 percent within a specified period in 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. 38 U.S.C.A. § 1116(a). Also, the Department of Defense has indicated that the herbicide Agent Orange had been used in Korea, and Agent Orange was used from April 1968 through July 1969 along the Korean demilitarized zone (DMZ). See, e.g., VHA Directive 2000-027 (September 5, 2000). Department of Defense defoliated the fields of fire between the front line defensive positions and the south barrier fence. The size of the treated area was a strip of lane 151 miles long and up to 350 yards wide from the fence to the north of the "civilian control line." There is no indication that herbicide was sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of palletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that effects of spraying were observed as far as 200 meters down wind. Units in the area during the period of use of herbicide were as follows: 1-38 Infantry, 2- 38 Infantry, 1-23 Infantry, 2-23 Infantry, 3-23 Infantry, 3- 32 Infantry, 109th Infantry, 209th Infantry, 1-72 Armor, 2-72 Armor, 4-7th Cavalry, 1-17th Infantry, 2-17th Infantry, 1-73 Armor, and 2-10th Cavalry. See VA Internal Document, "Veteran Service Center Manager Call - Policy Staff Items," March 2003. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 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: chloracne or other acneform diseases consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset), porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Notwithstanding the provisions of §§ 3.307, 3.309, the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Discussion The veteran asserts that he incurred diabetes mellitus type II due to herbicide exposure in service. There is competent evidence of a current diagnosis of diabetes mellitus type II. See the treatment records from Dr. Y.M. and the hospital records from C. M. Hospital dated in May 2002. The May 2002 records from the C.M. hospital indicates that the veteran had a long history of diabetes mellitus type II. A December 1998 treatment record from Dr. Y.M. indicates that the veteran had non-insulin dependent diabetes. Diabetes mellitus type II is a presumptive disease listed at 38 C.F.R. § 3.309(e). The veteran asserts that he incurred diabetes mellitus due to herbicide exposure while stationed on Johnston Island. The veteran asserts that the military stored DDT and Agent Orange on Johnston Island right near the ocean and the chemicals leaked on the ground. The veteran contends that the Agent Orange leaked into trash pits where they dumped trash. He asserts that the barracks were no more than 300 yards from the leaking barrels. The veteran also states that once, when he was scuba diving, he saw cement blocks in the ocean with bubble coming out of them. The veteran indicates that he and the other divers told the base commander what they saw and he indicates that he was no longer permitted to dive on that side of the island. The veteran asserts that he was told that the military was encasing Agent Orange and DDT in cement blocks and were dumping the blocks into the ocean. The veteran also asserts that there was a typhoon that hit the island, and after the storm, he retrieved some barrels out of the ocean during clean-up and some of the barrels had Agent Orange and DDT written on them. See the veteran's statement dated in October 2005. In support of his claim, the veteran submitted several articles printed from the internet. The articles are entitled Johnston Atoll Chemical Agent Disposal System; Johnston Atoll to be Used as Site for Contaminated US Military Waste; Background Info on CW Stockpile Site and Operating Incinerator on Kalama Atoll in the Pacific; U.S. Used Deadly Sarin in Hawaii Test; and Nuke Waste Landfill Plan Assailed. The article Johnston Atoll Chemical Agent Disposal System discusses a timeline of events on Johnston Atoll and notes that in the mid 1970's, surplus Agent Orange defoliant from the Vietnam war was stored on Johnston Island. The Board notes that this article was printed from the Environmental Protection Agency website. Service records show that the veteran did not serve in Vietnam during the applicable time period as set forth in 38 U.S.C.A. § 1116, and the veteran does not assert that he does. As noted above, the veteran asserts that he was exposed to herbicides agents while stationed on Johnston Island. The service records show that the veteran was stationed on Johnston Island from February 1972 to January 1973. His military occupation at that time was aircraft mechanic. Regarding exposure to Agent Orange outside of Vietnam, VA has received from the Defense Department a listing of locations outside of Vietnam where Agent Orange was used or tested over a number of years. According to a March 2003 fact sheet distributed by the Veterans Benefits Administration (VBA), which was posted in September 2003, the Department of Defense has confirmed that Agent Orange was used along the DMZ from April 1968 through July 1969 to defoliate the fields of fire between the front line defensive positions and the south barrier fence. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. There is no indication that the herbicide was sprayed in the DMZ itself. Both the 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was being used. Field artillery, signal, and engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange. The estimated number of exposed personnel is 12, 056. The service records show that the veteran did not service along the DMZ from April 1968 through July 1969, and he does not assert that he did. Regarding alleged exposure on Johnston Island, Congressman Lane Evans, the Ranking Democratic Member on the House Committee on Veterans' Affairs, sought establishment of a presumption of herbicide exposure for all veterans who served on Johnston Island in the North Pacific between 1971 and 1977. In a November 19, 2004 letter, former VA Secretary Anthony Principi advised Congressman Evans that the presumption of exposure was not warranted for veterans who served on Johnston Island. That determination was based on an analysis that indicated that the government's storage of herbicides on Johnston Island did not raise the same identification concerns as presented in Vietnam. Rather, Secretary Principi stated that the storage of herbicides on Johnston Island was more closely associated with the storage of herbicides at military installations in the United States and the spraying that occurred along the Korean DMZ in the late 1960s. Secretary Principi added that very few veterans who served on Johnston Island had duties that involved the direct handling of herbicides. Accordingly, for veterans who served on Johnston Island in the North Pacific between 1971 and 1977, exposure to herbicides must be verified through evidence developed during the adjudication of the claim; a presumption of herbicide exposure has not been established by VA. In the present case, the Board finds that there is sufficient verification that the veteran was exposed to Agent Orange herbicides while stationed on Johnston Island. As noted above, the service records show that the veteran was stationed on Johnston Island from February 1972 to January 1973. The articles submitted by the veteran establish that Agent Orange was stored on Johnston Island and that there were and still are concerns as to how the herbicides and other chemicals on Johnston Island were stored. The fact that the veteran was stationed on Johnston Island where Agent Orange herbicide was stored would strongly suggest that he was, in fact, exposed to such herbicides. The fact and circumstances of the present case are similar to the facts and circumstances in Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) and Suozzi v. Brown, 10 Vet. App. 307 (1997). In Pentecost and Suozzi, the Court provided specific guidance for the adjudication of post traumatic stress disorder claims when the claimed stressor is exposure to enemy fire. See Pentecost, supra; Suozzi, supra. In Suozzi v. Brown, 10 Vet. App. 307 (1997), the Court held that by requiring corroboration of every detail, including the veteran's personal participation, VA had defined "corroboration" too narrowly. Id. at 311. In Suozzi, the Court found that a radio log, which showed that the claimant's company had come under attack, was new and material evidence to warrant reopening a claim of service connection for post traumatic stress disorder, despite the fact that the radio log did not identify the veteran's participation. The Court further stressed that the evidence favorably corroborated the veteran's alleged in-service stressor. Id. More over, in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court reaffirmed its holding in Suozzi. In that case, the Court stated that the veteran's unit records constituted independent descriptions of rocket attacks that were experienced by the veteran's unit when he was stationed in Vietnam, which, when viewed in the light most favorable to the veteran, objectively corroborated his claim of having experienced rocket attacks. The Court reiterated that, although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. In doing so, the Court underscored that it had made clear in Suozzi that corroboration of every detail of a claimed stressor is not required, and that the claimant's presence with his unit at the time that the attacks occurred corroborated his statement that he experienced such attacks personally, and thus his unit records were clearly credible evidence that the rocket attacks that he alleges occurred did, in fact, occur. Id. at 128-129. These cases, taken together, stand for the proposition that if a veteran may be placed in the vicinity of a documented incident, it is not necessary that his exact location be pinpointed. The Court has expressly held that a veteran need not prove "every detail" of an alleged stressor under such circumstances. In both of those cases, the existence of the claimed events was confirmed by official sources, as was the involvement of the veteran's unit; only the veteran's individual involvement was questioned. The Court has held that corroboration of every detail of a claimed stressor, including the appellant's personal participation, is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124 (2002). In the present case, while the veteran has not established that he was personally exposed to the herbicide agents, there is sufficient evidence to imply that the veteran was in the vicinity of the Agent Orange herbicide. The evidence of record establishes that the veteran was on Johnston Island and that the Agent Orange was stored on the island during that time period. Applying the reasoning of Pentecost and Suozzi, supra, the Board finds that this evidence suggests that the veteran may very well have been exposed to herbicide agents while serving on Johnston Island. Thus, having resolved doubt in favor of the veteran, the Board concludes that there is sufficient verification that the veteran was exposed to herbicide agents on Johnston Island. If a veteran was exposed to a herbicide agent during active military, naval, or air service, diabetes mellitus type II shall be service-connected if there is competent evidence that the diabetes mellitus type II became manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Under Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent disability evaluation. Diabetes mellitus manageable by restricted diet warrants a 10 percent disability evaluation. 38 CFR § 4.119, Diagnostic Code 7913 (2006). There is competent evidence that the diabetes mellitus type II manifested to a degree of 10 percent or more after service. Treatment records from Dr. Y.M. show that in January 1993, the veteran was undergoing treatment for diabetes mellitus. A January 1993 treatment record notes that the veteran was on a diabetic diet. An October 1993 treatment record indicates that the veteran was on insulin for 10 weeks. More recent medical evidence establishes that the veteran continues to be treated for diabetes mellitus and he is currently taking insulin. See the June 2002 statement by Dr. Y.M. In conclusion, the Board finds that there is sufficient evidence which verifies that the veteran was exposed to Agent Orange herbicide while stationed on Johnston Island and there is competent evidence of diabetes mellitus type II manifested to a compensable degree after service. Therefore, after resolving all doubt in favor of the veteran, the Board finds that the evidence supports the claim for service connection for diabetes mellitus type II on a presumptive basis, and the claim is granted. ORDER Entitlement to service connection for diabetes mellitus type II as due to exposure to herbicides is warranted. The appeal is granted. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs