Citation Nr: 1234902 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 11-25 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for type II diabetes mellitus, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant, his wife, and C.B. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2012, the Veteran, his wife, and C.B. testified before the undersigned at a hearing at the RO. However, a transcript of the proceeding could not be produced. While the Veteran requested an additional hearing before the Board in August 2012, the Board has determined that the evidence currently of record is sufficient to establish the Veteran's entitlement to the full benefit sought on appeal. Therefore, further delay of the appellate process for the purpose of affording the Veteran another Board hearing is not warranted. FINDINGS OF FACT 1. The Veteran had service in Korea from July 1968 to June 1969, which included several trips to the Demilitarized Zone (DMZ). 2. Type II diabetes mellitus was manifested to a compensable degree subsequent to the Veteran's discharge from service. CONCLUSION OF LAW Type II diabetes mellitus is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for type II diabetes mellitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2011). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain diseases associated with Agent Orange exposure, including type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), are presumed to have been incurred in service if they manifested to a compensable degree at any time after service in veterans who were exposed to Agent Orange. 38 U.S.C.A. §§ 1116(a)(1),(2); 38 C.F.R. §§ 3.307(a), 3.309(e). Veterans who served in Korea between April 1, 1968, and August 31, 1971, (in certain units near the DMZ) are presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); 76 Fed. Reg. 4245-01 (Jan. 25, 2011). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops type II diabetes, the disease shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied. 38 C.F.R. § 3.309. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background and Analysis The Veteran contends that he has type II diabetes mellitus that is related to his service in Korea. His DD Form 214 indicates that the Veteran had over ten months of foreign service, including service in Korea. His military occupational specialty was security police. He was a member of the 107th Combat Support Squadron. In an August 2009 written statement, the Veteran asserted that he made several trips to the DMZ in mid and late 1968, including several overnight stops while on supply missions. In an August 2009 written statement, C.B. indicated that he served about 50 miles north of the Veteran, who served at Kwangju Air Base during the 1968-1969 activation of Air National Guard units. He knew the Veteran to have visited the DMZ on at least three occasions and possibly more. The Veteran would stop at C.B.'s base and stay overnight in his tent while on his way to the DMZ. The Veteran spoke of Camp Casey at the DMZ, where he picked up items. In an October 2009 written statement, the Veteran asserted that, while stationed in Korea, he made several trips to many different bases in Kunsan, Taegu, Pusan, Seoul, Osan, Kimpo, and Camp Casey. In a March 2010 response, VA's Compensation and Pension Service indicated that documents searched did not show that herbicide exposure for the Veteran could be conceded, because his unit was not one of those that has been shown to have been exposed to herbicides. There was also no evidence that the Veteran's military occupational specialty as security police was on the DMZ in Korea as a matter of routine. The response also stated that, if there was objective and competent evidence that he was in the DMZ as a part of his duties, herbicide exposure could be conceded. As noted above, while the Veteran, his spouse, and C.B. testified before the undersigned at the RO, a transcript of the hearing could not be produced. Nevertheless, the undersigned took notes during the hearing, which suggest that the Veteran and C.B. provided testimony that was similar to that which had been contained in their written statements. They, along with the Veteran's representative, asserted that the Veteran made several trips to the DMZ, which was within 150 miles of his base, to pick up supplies. The undersigned finds that the testimony of the Veteran and C.B. during this hearing was credible with regard to whether the Veteran visited the DMZ during his service in Korea. Because service at the DMZ during the applicable time period is found, exposure to herbicides is conceded in this case. Several medical documents of record, beginning in 1998, show a diagnosis of type II diabetes mellitus being attributed to the Veteran. The Veteran is certainly competent to state that his service in Korea included several trips to the DMZ to pick up supplies, and the Board finds that his statements in this regard are credible. Therefore, exposure to herbicides is conceded, and the Veteran's currently diagnosed type II diabetes mellitus is presumed to be related to this exposure to herbicides. ORDER Service connection for type II diabetes mellitus, claimed as due to exposure to herbicides, is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs