Citation Nr: 1303547 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-14 170 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides (to include Agent Orange). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2009 rating decision in which the RO, inter alia, denied service connection for diabetes mellitus. In February 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in March 2010, and the Veteran filed a substantive appeal in April 2010. In his substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge at the RO. In June 2011, the Board remanded the matter on appeal in order to afford the Veteran a Board hearing, which was scheduled in September 2011. However, in correspondence received in August 2011 and September 2011, the Veteran withdrew his hearing request. In August 2011, the Veteran submitted additional evidence directly to the Board. In an April 2012 brief, the Veteran's representative waived initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The totally of the evidence indicates that the Veteran as likely as not served in Vietnam during the Vietnam era, and is, thus, presumed to have been exposed to herbicides (to include Agent Orange) during such service. 3. The Veteran has been diagnosed with diabetes mellitus, type II, which is a disability recognized by VA as etiologically related to herbicide exposure. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes mellitus, type II, as presumptively due to exposure to herbicides (to include Agent Orange), are met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the matter on appeal, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis The Veteran is seeking service connection for diabetes mellitus, type II. In statements of record, he has asserted that was exposed to herbicides while on temporary duty assignments in Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from 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). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6). Furthermore, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide exposure, who develops one of the identified diseases. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the record in light of the above-noted legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for diabetes mellitus, type II, is warranted. The Board observes that the Veteran served in the United States Navy. Although his DD-214 shows that he is the recipient of the Vietnam Service Medal and Vietnam Campaign Medal, that document does not appear to confirm in-country service in Vietnam. Additionally, a September 2009 response to an official Request for Information shows that the National Personnel Records Center (NPRC) found "[w]e are unable to determine whether or not this Veteran served in the Republic of Vietnam. The Veteran's service personnel records document that he was attached to the Fleet Air Reconnaissance Squadron ONE (VQ-1), located at Naval Air Station in Atsugi, Japan. The Veteran's military occupational specialty (MOS) was aviation electronic technician. The Veteran asserts that, as a member of VQ-1, he had numerous temporary duty assignments in DaNang, Vietnam. In this regard, the Veteran has submitted significant additional documentation including a Citation, which documents that, as a crew member on a fixed wing aircraft, the Veteran engaged in combat operations against the enemy in Southeast Asia from June 1970 to July 1970. The claims file also includes a Certificate of Support Combat Zone Exclusion, which certifies that the Veteran served in a combat zone during the month of June 1970. A newspaper clipping also shows that the Veteran had received the Navy Unit Commendation Medal for service performed while serving in Vietnam. Significantly, the claims file also includes a history of VQ-1that clearly documents that VQ-1 had a detachment in DaNang, Vietnam. During the course of treatment for posttraumatic stress disorder, the Veteran consistently reported that he served in Vietnam doing electronic surveillance on A-3 airplanes out of DaNang. In support, the Veteran has submitted copies of letters that he had sent to his mother while stationed overseas, which include numerous references to being in DaNang. The claims file also contains an e-mail exchange between the Veteran and another service-member, which indicates that the United States Armed Center for Unit Records Research confirmed that VQ-1 maintained a permanent detachment (DET Bravo) in DaNang, Vietnam. In sum, as asserted by the Veteran and supported by publicly-available information, during the Vietnam Conflict, VQ-1 was stationed at a number of locations throughout Southeast Asia, including DaNang, Vietnam. Moreover, the Board has no reason to question the veracity of the Veteran's assertions regarding the circumstances of his service in Vietnam. The Veteran's description of such service has been consistent throughout the course of the appeal, and appears to be consistent with other evidence of record. The claim that the Veteran was an aviation mechanic who travelled to DaNang to support aviation operations of his unit is not outside of the realm of possibility. Indeed, given the Veteran's MOS as an aviation mechanic, his expertise would likely be most valued in support of high intensity combat aviation operations in Vietnam. Moreover, the evidence of record clearly documents that the Veteran was involved in combat operations and served in a combat zone in June 1970. On this record, the Board finds that the Veteran's service at least as likely as not included forays into Vietnam ,as asserted, and thus qualifies as Vietnam service for the purposes of establishing herbicide exposure. As the Veteran as likely as not had Vietnam service during the Vietnam and is thus presumed to have been exposed to herbicides (including Agent Orange), during such service, the Board now turns to whether the Veteran has a diagnosis of diabetes mellitus, type II. Importantly, a January 2009 VA Agent Orange registry examination unequivocally found that the Veteran had type II, diabetes mellitus, which was considered to be due to exposure to Agent Orange. More recently, private treatment records dated in June 2011 document borderline diabetes mellitus type, II, and indicate that the Veteran was provided comprehensive diabetic and dietary education. Accordingly, as the Veteran currently suffers from type II diabetes mellitus, a disease recognized by VA as associated with herbicide exposure, and is presumed to have been exposed to herbicide agents in service during periods of temporary duty in the Republic of Vietnam during the Vietnam Era, the Board finds that the criteria for service connection for diabetes mellitus, type II, on a presumptive basis, are met. ORDER Service connection for diabetes mellitus, type II, as presumptively due to exposure to herbicides (to include Agent Orange), is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs