Citation Nr: 1303090	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  10-30 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Huntington, West Virginia


THE ISSUE

Entitlement to service connection for diabetes mellitus, claimed as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 


INTRODUCTION

The Veteran served on active duty from March 1966 to October 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision that denied service connection for diabetes mellitus.  The Veteran timely appealed.

In April 2012, the Veteran testified during a hearing before the undersigned at the RO.

Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file.


FINDING OF FACT

It is at least as likely as not that the conditions of the Veteran's service involved duty or visitation in the Republic of Vietnam during the Vietnam era; hence, he is presumed to have been exposed to Agent Orange in service.


CONCLUSION OF LAW

Diabetes mellitus is presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the Veteran in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim.  

II.  Analysis

Service connection is awarded for disability that is the result of a disease or injury in active service.  38 U.S.C.A. §§ 1110, 1131.

Service connection requires 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303 (2012).  

In this case, the Veteran contends that his diabetes mellitus is the result of exposure to herbicides in active service.  He stated that he served in Vietnam from October 1968 to October 1969, and was awarded both the Vietnam Service Medal and the Vietnam Campaign Medal.  He later was diagnosed with diabetes mellitus in June 2009.  The Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  

His Form DD214 shows 11 months 13 days of foreign and/or sea service, and shows receipt of both the Vietnam Service Medal and the Vietnam Campaign Medal.  The Veteran's last duty assignment in the U.S. Air Force during active service was with the "633 CAMRON PACAF," and his specialty is shown as "Recip Eng Mech."  Neither the Veteran's service personnel records nor his service treatment records are available.

VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders:  Diabetes mellitus is listed among the diseases presumed to be associated with Agent Orange exposure.  38 C.F.R. § 3.309(e).

Absent affirmative evidence to the contrary, there is now a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era.  See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii)).  Thus, a presumption of service connection arises for a Vietnam era veteran (presumed exposed to herbicides, including Agent Orange) who later develops certain disorders.

The question in this case is whether the Veteran is entitled to a presumption of exposure to Agent Orange based on service in Vietnam during the Vietnam era.

"Service in the Republic of Vietnam" (during the period beginning on January 9, 1962, and ending on May 7, 1975) 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 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a).  See also VAOPGCPREC 7-93 ("Service in Vietnam" does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace.)

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has affirmed VA's interpretation of the above language to require a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the above regulation's presumption.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  

Furthermore, when service treatment records are unavailable, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened.  See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (quoting O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (noting that the duty to assist is "particularly great in light of the unavailability of the Veteran's exit examination and full ... medical records").

Indeed, in January 2012, the Veteran submitted a copy of a letter that had been sent to him while he was in Vietnam in June 1969.  The letter was from the Department of the Army, and concerned accommodations for a week of rest and relaxation in Hawaii in July 1969.

In April 2012, the Veteran also testified that he was in Pleiku, which is in the northern part of Vietnam.  He testified that everyone assigned to the northern part first flew into Cam Rahn Bay, Vietnam; and then flew to Pleiku, Vietnam.  He testified that Pleiku was his base station, and that he arrived there in October 1968.  The Veteran testified that he stayed in Pleiku until October 1969, except for one week of rest and relaxation.  The Veteran testified that his main job was as an engine mechanic; and that he worked on old prop-type engines and C-47s and models used in World War II.  He described other gunships that were used for base protection, and BS bombers.  He testified that he was in a combat support group.  In addition, the Veteran testified that the APO address shown in the June 1969 letter was in Vietnam.

The Board finds that the evidence in support of the Veteran's claim includes the Veteran's service awards, his Form DD214, the June 1969 letter from the Department of the Army, and the Veteran's testimony.

The Board finds the Veteran's testimony credible, and supported by publications showing that the 633d Combat Support Group operated the asphalt runway at the Pleiku Airfield in Vietnam (Where We Were in Vietnam, 5-412), and by a listing of APO numbers to locations in Vietnam (96295, Pleiku AB).  Moreover, the June 1969 letter was written contemporaneous to the incident in service.  The Veteran is competent to testify as to his experiences in service.  Military personnel are competent to testify as to their observations.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  See 38 C.F.R. § 3.102. 

Accordingly, the Veteran is entitled to a presumption of exposure to Agent Orange based on service in Vietnam during the Vietnam era.  Hence, service connection is warranted for diabetes mellitus.  In reaching this decision, the Board has extended the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107.


ORDER

Service connection for diabetes mellitus is granted.




____________________________________________
MICHAEL A. PAPPAS
 Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs