Citation Nr: 1302265 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-13 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 2. Entitlement to service connection for bilateral neuropathy of the lower extremities, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, he had service near the DMZ in Korea during a period in which he may be presumed to have been exposed to herbicides; he has a current diagnosis of diabetes. 2. The evidence of record indicates Veteran's current diagnosis of bilateral neuropathy of the lower extremities is secondary to his now service connected diabetes. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, service connection for diabetes as related to herbicide exposure is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303 , 3.307, 3.309 (2012). 2. Service connection is warranted for bilateral neuropathy of the lower extremities as secondary to the Veteran's now service connected diabetes. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303 , 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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). With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Furthermore, in light of the favorable disposition herein, any error in complying with such provisions would be harmless. The Veteran contends that service connection is warranted for diabetes and peripheral neuropathy. Specifically, the Veteran contends that he was exposed to herbicides while stationed in Korea, close to the DMZ, and that he made frequent trips to the DMZ, exposing him to herbicides, which he believes caused his diabetes, and that his peripheral neuropathy is secondary to this disability, and should therefore be service connected as well. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(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". Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, 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 may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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)(iv) (2012). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, 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; 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the provisions of §§ 3.307, 3.309, if a claim fails to satisfy the criteria for service connection on a presumptive basis due to herbicide exposure, this fact does not preclude an appellant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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). 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). 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Taking into account all relevant evidence, and resolving all doubt in the Veteran's favor, the Board finds that service connected is warranted for both diabetes and bilateral neuropathy of the lower extremities. The Board notes that the existence of these disabilities is not at issue in this case. The Veteran's medical treatment records clearly show that he has been diagnosed with both diabetes mellitus and peripheral neuropathy as secondary to that diabetes, and that such disorders have manifested to a compensable degree. However, the evidence of record appears to show these diagnoses occurred sometime around 1995, over 20 years after the Veteran's separation from service; the Veteran himself does not contend that these disabilities first manifested in service. Thus, service connection on a direct basis is not warranted, and the presumption of service connection for certain chronic diseases that become manifest to a degree of 10 percent or more within one year of separation does not attach. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, as noted above, the Veteran does not contend that these disabilities first manifested in service; rather, he contends that they are related to herbicide exposure in service, and should therefore be granted service connection on a presumptive basis. Reviewing the evidence of record, the Veteran's personnel records show that he was stationed in Korea, with B company of the 304th Signal battalion from October 1968 to November 1969. Further, information from the US Army and Joint Services Records Research Centers (USASCRUR) shows that his unit was located 27.9 miles from Korea. While information received from the VA Compensation and Pension Policy Staff indicates that they believe this unit is not one which may be considered as having been at or near the DMZ in Korea during the period that herbicides were used, considering the proximity of the Signal battalion to the DMZ, and considering his statements, and statements from a fellow servicemen, which indicate that the Veteran routinely travelled to the DMZ as part of his duties to establish radio relay sites, the Board will find, resolving all doubt in the Veteran's favor, that the Veteran had sufficient service in and near the DMZ such as to presume exposure to herbicides. As the Veteran is now presumed exposed to herbicides, service connection may therefore be presumptively granted for diabetes mellitus, and for peripheral neuropathy as secondary to his now service connected diabetes. ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for bilateral neuropathy of the lower extremities is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs