Citation Nr: 1208024 Decision Date: 03/02/12 Archive Date: 03/16/12 DOCKET NO. 09-37 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal, Combat Infantryman Badge, Air Medal, and Bronze Star Medal with Oak Leaf Cluster and "V" Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during active duty, and is presumed to have been exposed to herbicides. 2. The Veteran has been shown to have diabetes mellitus, type II, which is presumed to be related to in-service herbicide exposure. 3. In December 2011 prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal of the issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is requested. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). 2. The criteria for withdrawal of a Substantive Appeal by the appellant of the issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, there are statutory presumptions and VA regulations implementing them, that are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). In the case of a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, 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). The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne if manifest to a degree of 10 percent within one year of date of last exposure, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The Board acknowledges that the Veteran's claimed type II diabetes mellitus is one of the diseases for which the presumption applies. "Service in the Republic of Vietnam," includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). VA's General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of Vietnam. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961 and ending on May 7, 1975 in the case of a Veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. Additionally, the Board notes, as established in a United States Court of Appeals for Veterans Claims (Court) opinion, that in order to be entitled to presumptive service connection for certain diseases associated with herbicide exposure, it must be established that the Veteran actually served in-country. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure under 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii)). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. Service treatment records and the Veteran's DD 214 reveal that the Veteran served in the Republic of Vietnam. As such, the Veteran is presumed to have been exposed to herbicides. Service treatment records do not reveal any complaint, diagnosis, or treatment for any diabetes mellitus, type II. Post service treatment records reveal that the Veteran was treated with insulin and was noted to have a history of acidosis in February 2005. In March 2005 the Veteran was again noted to have been treated with insulin. In April 2005 and May 2005 the Veteran was diagnosed with glucose intolerance. In September 2005 the Veteran was noted to have elevated glucose. The Veteran was found to have elevated and increasing finger stick blood sugars (FSBS) in July 2007. In November 2007 the Veteran was assessed with non-insulin dependent diabetes mellitus (NIDDM). The Veteran was started on dietary modifications and metformin was noted to have been considered. In June 2008 the Veteran's claims file was reviewed by a VA Compensation and Pension (C&P) examiner. The examiner noted that the Veteran did not meet the criteria for type II diabetes but rather met the criteria for glucose intolerance. In a statement dated in January 2009, a physician reported that the Veteran's diabetes mellitus required insulin and restricted diet, or oral hypoglycemic agent and restricted diet. The physician noted that the Veteran had no complications that were directly related to his diabetes. In May 2009 the Veteran was afforded a VA C&P diabetes examination. After examination and detailed listing of blood test results, the examiner diagnosed the Veteran with impaired glucose tolerance and no diabetes. The examiner stated that the Veteran's laboratory test results do not meet the requirements for a diagnosis of diabetes mellitus and that the Veteran does not have kidney disease as a result of diabetes mellitus. The examiner noted that a diagnosis of diabetes is determined by having two fasting glucose readings of greater than 126. The examiner diagnosed the Veteran with impaired glucose tolerance and no abnormal kidney function. In September 2009 a VA examiner noted that after speaking with the Veteran's primary care physician it was agreed that the Veteran was prediabetic and there is no evidence of renal dysfunction. In March 2009 and October 2009 the Veteran was noted to be prescribed metformin. In October 2009 the Veteran was again noted to have NIDDM among his active problems. In a VA treatment note dated in December 2011 the Veteran was noted to have the active problem of NIDDM and was indicated to be prescribed metformin for diabetes. The Board finds that service connection for diabetes mellitus, type II, is warranted. The Veteran's service treatment records and DD 214 reveal that he served in the Republic of Vietnam. As such, the Veteran is presumed to have been exposed to herbicides. The post service treatment records reveal that the evidence is at least in equipoise regarding whether the Veteran has been diagnosed with diabetes mellitus. Although VA examiners have rendered the opinion that the Veteran's blood sugar test results do not meet the criteria for a diagnosis of diabetes mellitus, the Veteran has been diagnosed with NIDDM and has been noted to be treated with metformin for diabetes mellitus. The Board notes that NIDDM refers to type II diabetes mellitus. Dorland Illustrated Medical Dictionary 513 (31st ed. 2007). Affording the Veteran the benefit of the doubt, the Board finds that the evidence reveals that the Veteran has been diagnosed with diabetes mellitus, type II. As the Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam and diabetes mellitus, type II, is a disability for which there is a presumption of service connection based on exposure to herbicides, service connection for diabetes mellitus, type II, is granted. III. Withdrawal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a statement received in December 2011, the appellant, through his authorized representative, has withdrawn the appeal of the issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, and, hence, there remain no allegations of errors of fact or law for appellate consideration in regard to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, and it is dismissed. ORDER Service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is granted. The issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is dismissed. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs