Citation Nr: 1024284 Decision Date: 06/29/10 Archive Date: 07/08/10 DOCKET NO. 06-09 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Brooks McDaniel, Agent WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, denying the Veteran's claim for service connection for diabetes mellitus, to include as due to herbicide exposure. In February 2005, the Veteran sought reconsideration of such claim based on his submission of additional evidence, and the RO confirmed and continued the earlier denial by its rating decision of June 2005. The RO has otherwise developed the claim at hand on a de novo basis, without regard to the finality of any prior determination and the Board herein follows suit. This matter was most recently before the Board in December 2009, when it was remanded to the RO to afford the Veteran a requested hearing. The record reflects that the Veteran was afforded a videoconference hearing before the Board in March 2010, a transcript of which is of record. The Board notes that the United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), which reversed a decision of the Board that denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagreed with the Court's decision in Haas and appealed this case to the United States Court of Appeals for the Federal Circuit (Federal Circuit). On May 8, 2008, the Federal Circuit issued its decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), wherein it reversed the Court, holding that the Veterans Court had erred in rejecting VA's interpretation of § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. The Federal Circuit issued mandate in Hass effective October 16, 2008. Previously, however, the Secretary of VA imposed a stay at the Board on the adjudication of claims affected by Haas. Subsequently, the Court temporarily stayed the adjudication of cases before the Board and RO potentially affected by Haas. See Ribaudo v. Nicholson, 21 Vet. App. 16 (2007) (per curiam). The specific claims affected by the stay included those based on herbicide exposure in which the only evidence of exposure was receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam, such as in this case. The Court later dissolved the temporary stay, but granted the Secretary's motion to stay such cases, in part. See Ribaudo, 21 Vet. App. at 137. Following entry of the Federal Circuit's mandate in Haas, the appellant filed a petition for a writ of certiorari to the U.S. Supreme Court, which was denied on January 21, 2009. See Haas v. Peake, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08- 525). As the Ribaudo stay of Haas-related cases is no longer in effect, and in light of the U.S. Supreme Court's denial of certiorari, VA's Office of General Counsel has advised that the Board may resume adjudication of the previously stayed cases. By Chairman's Memorandum 01-09-03, dated January 22, 2009, the stay was lifted and further consideration of this appeal may now be undertaken. FINDINGS OF FACT 1. The Veteran set foot in the Republic of Vietnam during active service. 2. The Veteran has been diagnosed with diabetes mellitus. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favore, diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2009). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. In this case, because the Board finds is granting service connection for diabetes mellitus, there is no need to further discuss VA's compliance with VCAA duties to notify and assist because additional notice or development could not further substantiate the claim. Service Connection for Diabetes Mellitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. 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 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Where a veteran served 90 days or more during a period of war, or during peacetime after December 31, 1946, and a chronic disease, such as diabetes mellitus, becomes manifest to a degree of 10 percent or more within one year from the date of termination of 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; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, 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. 38 C.F.R. § 3.307(a)(6)(iii). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). Service connection may be granted on a presumptive basis for certain disorders, inclusive of diabetes mellitus, if manifested to a compensable degree anytime after service in a veteran exposed to an "herbicide agent" as defined in 38 C.F.R. § 3.307(a)(6). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, a veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e) during the presumptive period if applicable. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom; Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); see Brock v. Brown, 10 Vet. App. 155, 160-61 (1997) (specific applicability in Agent Orange cases). Thus, presumption is not the sole method for showing causation. It is the Veteran's primary contention that he has diabetes mellitus that is the result of in-service herbicide exposure. He reports having served aboard the USS BIDDLE, and that one or more trips to Vietnam were made for the purpose of facilitating dental treatment. Service treatment records are negative for evidence of diabetes mellitus, as are those reports of medical treatment compiled for years following discharge from service in September 1968. The existence of diabetes mellitus is first identified by clinical data in or about 2000, when the Veteran was being evaluated by a private, treating physician. Inasmuch as there exists a presumption of service connection for diabetes mellitus and a presumption of herbicide exposure for duty or visitation in the Republic of Vietnam during a certain period, this case turns on whether the presumption of herbicide exposure applies in this case, and, if not, whether there is a showing of actual exposure to herbicide. The presumption is not triggered without evidence that the Veteran served in the Republic of Vietnam with that entailing duty or visitation in Vietnam. In this case, the Board finds that the weight of the evidence is at least in relative equipoise on the question of whether the Veteran set foot in the Republic of Vietnam during service. While there are no official records of such, the Veteran credibly sets forth a chronology in which he was aboard the USS BIDDLE in the Gulf of Tonkin in Vietnam waters and was transported, along with other persons and mailbags, in early May 1968 by helicopter to Da Nang, where he switched helicopters and was then taken to an aircraft carrier in order to receive needed dental care. Testimony is offered that he had a chipped tooth in April 1968 that was painful and which was not responsive to pain medications, and, as a result, he was transported to an aircraft carrier for an overnight stay involving evaluation of the affected tooth and fabrication of a partial denture. On the return trip from the carrier to Da Nang and then to the BIDDLE, the Veteran recalled that the helicopter was diverted to detect any sign of a pilot from a downed aircraft in or near the water or adjacent coastline. On two other, separate occasions in March and June 1968, the USS BIDDLE was reported to have anchored in Da Nang harbor for the purpose of conducting briefings or for other reasons, and he cites copies of official deck logs in order to verify this. Service treatment records offer some corroboration of the Veteran's account regarding in-service dental treatment for a chipped tooth. Such records indicate that he was seen on three occasions in April and early May 1968 aboard the USS BIDDLE for a broken, front upper tooth that had become painful. When last seen on May 2, 1968, he was noted to be in far more pain and it was set forth that a transfer to a carrier would be necessary for him to be evaluated and treated by a dentist. The Veteran's Department of Defense Form 214N, Report of Transfer or Discharge, indicates that the Veteran was awarded the Vietnam Service Medal and the National Defense Service Medal. Service personnel records of the Veteran further document that he served aboard the USS BIDDLE from March 1967 to September 1968 and other information obtained by the RO shows that the USS BIDDLE was in the waters of Vietnam from May 1 to May 8, 1968. In reply to the RO's request for confirmatory data as to the Veteran's whereabouts, the U.S. Army and Joint Services Records Research Center in reviewing the ship's logs and command history reported in April 2009 that the USS BIDDLE had conducted helicopter operations in the North Gulf of Tonkin and PIRAZ (Positive Identification Radar Advisory Zone) Station, Gulf of Tonkin, on May 1, 2, 3, 5, 6, and 7, 1968. Deck logs documented the names of passengers on several of the flights, who were Flag Officers and VIPs, but did not demonstrate that the Veteran was aboard. Other flights did not, however, document whether any passengers were aboard, and the deck logs failed to indicate the origin points or final destinations of the May 1968 flights. The USS BIDDLE was noted to have been relieved on the PIRAZ station on May 7, 1968. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran set foot on Vietnam soil during service, and he is thus presumed to have been exposed to toxic herbicides, including Agent Orange, during service. Inasmuch as the evidence documents current disabilit of diabetes mellitus, a grant of service connection therefor on the basis of presumed in-service herbicide exposure is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus as due to in-service due to herbicide exposure is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs