Citation Nr: 1007268 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-24 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1960 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denying service connection for diabetes mellitus, type II (DM), congestive heart failure with coronary artery disease, and spinal stenosis. In February 2006, the Veteran submitted a notice of disagreement with regard to the issue of DM, and subsequently perfected his appeal for DM in June 2006. In July 2008, the Board remanded the Veteran's claim of entitlement to service connection for DM to the Huntington, West Virginia RO via the Appeals Management Center in Washington, DC, for further evidentiary development, including attempting to verify the Veteran's service at Eglin Air Force Base and obtaining Social Security Administration (SSA) records and updated VA and private treatment records. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the claims file shows that the RO obtained the Veteran's SSA records, updated VA treatment records, and updated private treatment records. Additionally, in June 2009, the United States Army and Joint Services Records Research Center (JSRRC) confirmed that the Veteran had served on Eglin Air Force Base around October 1964, and that herbicide testing had been conducted at Eglin Air Force Base during that time period. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDINGS OF FACT 1. The Veteran was exposed to an herbicide while stationed at Eglin Air Force Base in or around October 1964. 2. The competent evidence establishes a current diagnosis of diabetes mellitus, type II. CONCLUSION OF LAW Diabetes mellitus, type II, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all 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 Veteran. 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. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As discussed below, the Veteran's claim of entitlement to service connection for DM has been granted. As such, the Board finds that any error related to the VCAA on that claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for a disability, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, DM shall be service connected if it becomes manifest to a degree of 10 percent disabling or more at any time after service. See 38 C.F.R. § 3.307(a)(6) (2009). This presumption of service connection will attach, even in the absence of any evidence of DM while in service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. See also 38 C.F.R. § 3.309(e) (2009). The Veteran contends that he has DM that is the result of herbicide exposure while serving temporary duty at Eglin Air Force Base. As noted above, DM is a presumptive disease under 38 C.F.R. § 3.309(e). The Board notes initially that the Veteran has not claimed that he was exposed to herbicides at any other time during his active military service. Thus, the Board need not discuss other potential herbicide exposure, including the presumption of herbicide exposure for veterans who served in the Republic of Vietnam. The Veteran is not shown to have served incountry in Vietnam. The medical evidence of record indicates that the Veteran has been diagnosed with and treated for DM for several years. Therefore, the remaining question in determining whether the Veteran is entitled to the presumption of service connection for DM due to herbicide exposure is whether the Veteran was exposed to herbicides while serving on active duty. The Veteran's service records include morning reports documenting that the Veteran served temporary duty at Eglin Air Force Base around October 1964. Additionally, JSRRC provided evidence indicating that the U.S. Army tested various herbicides on a 2 square mile testing area at Eglin Air Force Base between 1962 and 1970. JSRRC was not able to confirm whether specific units or individuals performed duties within the test area. While correspondence from JSRRC indicated that the herbicide testing area was in a remote location, there was no indication that access to the area was restricted or that the testing area was otherwise inaccessible to military personnel. Although JSRRC was not able to specifically verify that the Veteran was exposed to herbicides, the Board finds that the evidence tends to corroborate his contentions that he was exposed to herbicides while stationed at Eglin Air Force Base. Specifically, it has been verified that the Veteran served at Eglin Air Force Base at the time that herbicides were being tested. Further there is no evidence to contradict the Veteran's allegations that he often explored the base and may have been exposed to herbicides. Affording the Veteran the full benefit of the doubt, the Board finds that he was exposed to herbicides while serving temporary duty at Eglin Air Force Base and that his current DM can be presumed to be related to herbicide exposure in service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, his claim of entitlement to service connection for DM, to include as due to herbicide exposure, is granted. ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs