Citation Nr: 1304887 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-46 421 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969. He was awarded the Vietnam Campaign Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 RO decision. The Veteran presented sworn testimony in support of his appeal during a June 2012 videoconference hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. The Veteran was exposed to herbicides during the course of his Vietnam service. 2. The Veteran has diabetes mellitus. CONCLUSION OF LAW Service connection is warranted for diabetes mellitus. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his diabetes, which was initially diagnosed in 2004, was caused by exposure to herbicides such as Agent Orange to which he was exposed during his Vietnam service. He specifically asserts that he served on ships that were in brown water, including harbors and tributaries, and that his ship sailed through clouds of herbicide. He also asserts that his small ship refueled river boats and helicopters, and patrolled around islands, coves, bays, and rivers. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. § 1110. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. 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. Regulations pertaining to Agent Orange exposure, which includes all herbicides used in Vietnam, provide that if a veteran served on active duty in Vietnam during the Vietnam era, the veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including diabetes mellitus, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of 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; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In support of his claim, the Veteran has submitted copies of photographs showing himself standing in front of a smaller ship in Vietnam. He has submitted copies of photographs and other information from his Navy yearbook, along with lengthy and detailed descriptions of his personal experiences in Vietnam. He asserts that his ship patrolled the upper, narrow end of Nha Trang Harbor, and that the water was so shallow the ship's sonar could not function, and the water's depth was checked by lowering a rope to the bottom. During the June 2012 hearing on appeal, he testified that his ship was responsible for providing the rocket flares to light nighttime battles, and that he went ashore for several hours to an enlisted men's club on an Army base. The critical question in this case is whether the Veteran did, in fact, go ashore for several hours to an enlist men's club on an Army base in Vietnam during his service in the Vietnam War, which would allow the Veteran the presumption that his diabetes is the result of his exposure to herbicides. In this regard, the Veteran underwent detailed questioning on this issue at his hearing by the undersigned. The Veteran's testimony is found highly credible and consistent with his service: His ship was stationed near the shores of Vietnam for a significant period of time (he has provided photographic evidence of this fact and detailed log records) and it is reasonable to assume that, at some point, limited shore leave may have been granted. The Veteran's recollections are found highly credible. That the Veteran has a current disability involving diabetes mellitus is established in his VA treatment records. As service connection for diabetes may be presumed under law in the case of a Vietnam Veteran who was exposed to herbicides, the element remaining to be established is actual exposure to herbicides. Governing precedent requires that for purposes of applying the presumption of exposure to herbicides the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In this case, the Board finds the Veteran's testimony and his written statements to be credible. His description of his activities during service is consistent with the information in his service personnel records and with the historical research information obtained by the Joint Services Center for Unit Records and Research. The photographs and information from the Veteran's Navy yearbook are helpful to his claim, as well. Thus, the veteran's hearing testimony is deemed helpful to the Board and credible insofar as it comports with the other evidence of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is the responsibility of the Board to find facts and to evaluate the evidence in so doing. The United States Court of Appeals for the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In sum, the evidence supports the Veteran's claim for service connection for diabetes mellitus, as presumed under law to have been caused by exposure to herbicides. The benefit sought is therefore granted. ORDER Service connection for diabetes mellitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs