Citation Nr: 1304516 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-44 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In August 2009 the Veteran testified during a RO hearing before a Decision Review Officer (DRO). In February 2010, the Veteran testified during a Board hearing at the RO before the undersigned. Transcripts of the hearings are of record. Subsequently, in November 2011 the Board remanded this matter for additional development. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, diabetes mellitus, type II, had its onset during the Veteran's period of active service. CONCLUSION OF LAW The criteria for the establishment of service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 1131, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of this service connection claim for diabetes at present without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Also, specific diseases, to include Type II diabetes mellitus or adult-onset diabetes, have been found to be associated with exposure to certain herbicide agents used in the Republic of Vietnam. 38 C.F.R. § 3.309(e). As such, if a veteran is found to have been exposed to tactical herbicides during his military service, such as the chemical defoliant commonly known as "Agent Orange," service connection of a disease associated with that exposure is warranted on a presumptive basis even though there is no record of any such disease in service. Id.; see also 38 C.F.R. § 3.307(a)(6). Regulations state that a veteran who, during active military, naval, or air service, served in Vietnam between January 1962 and May 1975 shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). However, service "in" the Republic of Vietnam has been interpreted as requiring a veteran to have set foot on land in the Republic of Vietnam rather than mere shipboard service in offshore waters. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding foot-on-land rule to be permissible statutory interpretation), cert denied, 129 S. Ct. 1002 (2009); see also 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations also provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including diabetes mellitus, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Generally, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis In his written statements and testimony, the Veteran contends that he is entitled to presumptive service connection for diabetes because he had to leave his Navy ship off the coast of Vietnam in August 1966 and spent time on land in Vietnam at the Tan Son Nhat air base awaiting a flight back to the United States. The Veteran's service personnel records reflect that his military service included foreign and/or sea service for most of his period of active duty. His military occupational specialty was listed on his DD Form 214 (separation from service) as related to a civilian pipe-fitter. Awards included the Vietnam Service Medal. An enlisted performance record confirmed service at sea aboard the U.S.S. JAMESTOWN (AGTR-3) from October 1963 to August 1966, but does not show that the Veteran's service involved duty or visitation in Vietnam. In addition, service personnel records show that he was transferred from the U.S.S. JAMESTOWN to the U.S.S. PLEDGE (MSO-492) on August 4, 1966 for sea duty and that he reported for duty on the PLEDGE on September 11, 1966. A leave record shows that the Veteran was on leave from August 12, 1966 to September 6, 1966 and these 26 days were listed against the ship he had transferred to, or the U.S.S. PLEDGE. A photocopy of a handwritten letter from the Veteran's father to a U.S. Senator dated in March 1969 is also enclosed in his service personnel records. In that correspondence, the Veteran's father states that "[w]hen his time was up he received a honorable discharge and was flown home from Saigon." Service treatment records only include the Veteran's April 1963 enlistment examination which is negative for any complaints of, or treatment for, diabetes. There are no service treatment records for his service at sea and no discharge examination in April 1967. The Board is mindful that, in a case such as this, where some service treatment records may be lost or unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While it is unfortunate that not all of the Veteran's service treatment records may be available, this appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened obligation set forth in Cuevas and O'Hare in mind. Post-service, the earliest medical evidence that the Veteran had diabetes mellitus are January 2006 private medical records showing a diagnosis of diabetes mellitus, type II, after he was treated at a private hospital in December 2005 for nausea and dehydration and elevated blood sugar was detected. Private treatment records dated from February 2006 to August 2007 show continuing treatment for diabetes. A review of those records discloses that his private physician, Dr. J.D., provided no opinion on the etiology of the Veteran's diabetes disorder. An October 2007 report from the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly the Department of the Army Center for Unit Records Research (CURR)) stated that it had reviewed the command history for the U.S.S. JAMESTOWN (AGTR-3) for 1966, which revealed that the ship conducted operations up and down the coastal waters of the Republic of Vietnam and elsewhere in the Far East from January 1966 through August 1966. No precise location was listed for August 4, 1966, when the Veteran allegedly left the ship, but the CURR report stated that the ship left Subic Bay in the Philippines on July 15, 1966, began research operations the next day, and on August 18, 1966 departed for an import period in Malaysia from August 22, 1966 to August 28, 1966. It was also noted that command histories, deck logs, and muster rolls did not normally annotate on a routine basis the arrivals of individuals or their going ashore. In his May 2009 Notice of Disagreement, the Veteran asserted that he was in Vietnam during his last two weeks of his tour with the Navy. He stated that he was assigned to the shore support section that supplied and retrieved mail to Navy personnel who were in country or on longer tours. He stated that he departed Vietnam from Saigon. During his RO hearing in August 2009, the Veteran testified that in August 1966 he was transferred to another ship. He said that he left the U.S.S. JAMESTOWN, which was cruising off of the coast of Vietnam, by a mail boat which docked at a small deep water port in Vietnam called An Thoi. He and two other sailors who were being transferred waited there for 3 to 4 hours before they were flown with the mail to Saigon. He said that he was assigned to a barracks at Tan Son Nhat air base with no duties and had to wait one or two weeks before he flew out of Saigon on a Freedom Flight. His representative asserted that this was pretty much the standard practice by which Navy personnel would leave Vietnam, if their ship was not returning to the coastal U.S. The Veteran said that he thought his flight from Saigon landed in either New York or Boston because he went home on leave to New Hampshire. Later he flew to California and reported for duty on the U.S.S. PLEDGE. He testified that he was not exiting the service in August 1966, but reporting for duty to a ship located in California with less than a year left on his enlistment. The Veteran could not state when he actually reported for duty in California or how long he was on leave in the late summer of 1966. During his February 2010 video conference Board hearing, the Veteran's representative told the undersigned that it was reasonable that the Veteran left the U.S.S. JAMESTOWN, took the mail plane from An Hoi to Saigon, and then flew home on a Freedom Flight from Tan Son Nhat air base because the U.S.S. JAMESTOWN remained in the waters off Vietnam until 1967 and the Veteran's assignment on the U.S.S. PLEDGE, which was in California, was effective September 6, 1966. The Veteran testified that while he was stationed at Tan Son Nhat air base for two weeks he went into Saigon for rest and relaxation. He said that he was told that the area around the base in which he travelled was exposed to Agent Orange. His representative, who also served in Vietnam, said that the perimeter area of airfields in South Vietnam during the war were kept free of vegetation for security purposes. He also provided the Board with the website of the U.S.S. JAMESTOWN (www.ussjamestown.com). The Board notes that the ship's website indicates that the U.S.S. JAMESTOWN sailed in the Far East from December 1965 to mid-1967, and often operated in the Vietnam war zone. VA's efforts on remand to obtain the Veteran's pay records for the months of August and September 1966 from the Defense Finance and Accounting Service (DFAS) were unsuccessful. DFAS reported in March 2012 correspondence that an exhaustive search failed to uncovered any relevant records. Also that month, an Air Force archivist with the Air Force Historical Research Agency reported military flights to Vietnam and departures for the U.S. were on a daily basis in 1966. He said that passenger manifests were not saved, that space was at a premium at Tan Son Nhat, and that many commercial flights were available to send service members home. The Air Force archivist also commented that the Veteran's story of leaving one ship and not finishing the cruise was fairly unique and an unusual occurrence and that waiting two weeks for a flight did not coincide with known flight schedules. In December 2011 the National Personnel Records Center (NPRC) reported that the Navy did not have morning reports, and muster roll cards for August and September 1966 from the U.S.S. JAMESTOWN could not be located. However, the NPRC commented that the Veteran' service personnel records did not include any temporary duty orders or changes in the Veteran's duty assignments for August or September 1966. The Board notes that this appears to contradict the actual service personnel records found in the claims file which show a change in duty assignments from the U.S.S. JAMESTOWN in August 1966 to the U.S.S. PLEDGE in September 1966. Based upon a review of all the evidence of record, the Board finds that service connection for diabetes mellitus, type II, is warranted in this case. While no records have been secured on remand which definitely prove that the Veteran set foot on the land of Vietnam in 1966, the Board finds that his Board testimony and his testimony before the DRO in August 2009 was plausible and credible. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, 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). Further, the service personnel records noted above tend to corroborate his story that he flew home from Vietnam in August 1966 because he was being transferred from one ship sailing in the Far East to another docked in California. The Board agrees with the Veteran's representative, who suggested during the video conference Board hearing that it is reasonable and plausible that the Veteran left the U.S.S. JAMESTOWN, and then flew home on a Freedom Flight from Tan Son Nhat air base because the U.S.S. JAMESTOWN remained in the waters off Vietnam until 1967 and the Veteran's assignment on the U.S.S. PLEDGE, which was in California, was effective September 6, 1966. Objections that a two-week layover in Saigon was unique or unusual are not really pertinent to this claim. To be eligible for presumptive service connection, all the Veteran need show is his presence on the land mass of Vietnam during the relevant time period. It is immaterial whether he had to wait one hour, one day, one week, or two weeks before catching a flight back to the U.S. So while some parts of his narrative may be less credible than others after a span of more than 45 years, the Board believes that it is beyond dispute that this Veteran flew from Vietnam in August 1966 in order to comply with service orders to transfer his duty station. The Board finds that under the circumstances of this case and upon granting the Veteran the benefit of the doubt, the Veteran's credible hearing testimony, when taken together with information in his service personnel records, including transfer and leave records and a copy of his father's congressional correspondence referring to his son flying home from Saigon, are sufficient to provide proof that the Veteran stepped on the land mass of Vietnam during his tour of duty with the Navy in August 1966. Further inquiry could no doubt be undertaken with a view towards development of the claim, especially in attempting to obtain complete copies of all of the Veteran's service personnel records, including travel orders, and his service treatment records, including a copy of his discharge examination. However, resolving all reasonable doubt in the Veteran's favor, the Board further finds that the requirements are met in this case for presumptive service connection for diabetes mellitus, type II, as due to exposure to herbicides. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted for the Veteran's diabetes mellitus, type II. As the Board finds that the Veteran has provided evidence supporting a grant of presumptive service connection for his claim, the claim for service connection for diabetes mellitus, type II, is granted. ORDER Service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Carole R. Kammel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs