Citation Nr: 1124167 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-38 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, Type II, including as due to exposure to herbicides. ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. With resolution of the doubt in favor of the Veteran, the Veteran was physically present on the beaches of Vietnam. 2. The Veteran is presumed to have been exposed to herbicides while serving in Vietnam. 3. Resolving all reasonable doubt in the Veteran's favor, the competent evidence shows that the Veteran has diabetes mellitus attributable to herbicide exposure. CONCLUSION OF LAW The criteria for grant of service connection for diabetes mellitus, Type II, have been approximated. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). The Board has considered this legislation, but finds that, given the favorable action taken below; no discussion of the VCAA at this point is required. Merits of the Claim The Veteran filed a claim of service connection for diabetes mellitus, Type II. He alleges that he has diabetes mellitus as a result of his active duty service. He claims that although he was stationed on the USS Okinawa off the shores of Vietnam, he was exposed to herbicides when he visited the beaches of Vietnam. With resolution of the doubt in favor of the Veteran, service connection is warranted for diabetes mellitus, secondary to herbicide exposure in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110. Service connection may 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). Certain diseases, including diabetes mellitus, may be presumed incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. See 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 beginning on January 9, 1962, and ending on 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. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she 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(f). Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, 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 and 38 C.F.R. § 3.307(d) are also satisfied: Type 2 diabetes. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In this case, the Veteran was diagnosed with diabetes mellitus in 2008. His DD 214 shows that he worked in air transportation aboard the USS Okinawa. The Veteran's service records do not show service on the landmass of Vietnam. Despite the official records, the Veteran contends that he visited China Beach in Vietnam during his period of service. In support of his claim, the Veteran attached photographs of himself on the beach of Vietnam and submitted a statement from a fellow serviceman indicating that he went ashore. Although the Veteran's service medical records do not show that he was treated for diabetes mellitus, nor do his service personnel records show that he was stationed in Vietnam, the Veteran's evidence in the form of lay statements and photographs support his contention that he visited ashore in Vietnam. As a result, this evidence supports that although the Veteran was not stationed in Vietnam, he did visit to China Beach, Vietnam. Therefore, since his period of service involved visitation to Vietnam, he is presumed to have been exposed to herbicides, and since diabetes mellitus is a presumptive disorder, resolving all reasonable doubt in the Veteran's favor, service connection is warranted for diabetes mellitus, secondary to herbicides exposure. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for diabetes mellitus, Type II, is granted. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs