Citation Nr: 1311312 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-05 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for diabetes mellitus, to include as a result of exposure to herbicides in the Republic of Vietnam. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from October 1971 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran was afforded a Central Office hearing in February 2012. A transcript is associated with the claims file. The entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed in this case. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran has a current diagnosis of diabetes mellitus, type II. 2. The evidence of record supports a finding that the Veteran's duties as a radioman assigned to USS America required him to set foot on land inside of the Republic of Vietnam while on temporary duty in 1972 and 1973. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may be granted for any disease diagnosed after discharge, 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 generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in service if they become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If a Veteran served in the Republic of Vietnam during the Vietnam era, he or she 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)(iii). 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 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin's disease; ischemic heart disease; 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure. See Haas at 1193-1194; see also VAOPGCPREC 7-93 (holding that 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); see also VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Id. Post-service VA clinical records establish that the Veteran has been in ongoing consultations with health care providers regarding the control of his diabetes, and there is no doubt that he carries a diagnosis of type II diabetes mellitus. Indeed, a December 2008 summary of health problems includes a specific diagnosis of type II diabetes. At issue, then, in this case, is whether the Veteran had actual service on the ground or inland waterways of Vietnam so as to qualify for the presumption of service connection for his diabetes. The Veteran's service personnel records indicate that he had a rate of Radioman, and that he served aboard USS America during his naval service. The ship, an aircraft carrier, had confirmed service in the Gulf of Tonkin for several periods between the summer of 1972 and the winter of 1973. The Veteran contends that he left America via helicopter on approximately three occasions for temporary duty assignments onshore in Vietnam. Specifically, he stated during his personal hearing that he worked with Patrol Board River (PBR) crews in the Mekong Delta, and that he aided Marines in the operation of a Military Amateur Radio Station (MARS). He indicated that the onshore units did not have assigned radiomen, and that as his radio expertise was needed, and that as the carrier had a surplus of parts, he was tasked to support these crews. The Veteran submitted a letter from his former commanding officer, and this retired Chief Warrant Officer (CWO4) stated that the Veteran, while assigned to his section aboard America, was tasked to aid with the operation of the MARS system at DaNang (i.e. the Veteran was sent onshore into Vietnam). In additional support of his contentions, the Veteran submitted a letter from his sister-in-law. She indicated that the Veteran spoke to her on the phone from the MARS station in Vietnam (MARS was designed as a morale aid, in that it allowed for servicemen stationed in Vietnam to contact loved ones in the United States). The service department could not verify that the Veteran was dispatched ashore; however, records received from the Joint Services Records and Research Center (JSRRC) stated that while helicopter and/or boat departures might be recorded on deck logs, there would be no indication of who/what was aboard the aircraft unless it was a high ranking officer. The JSRRC also confirmed that America did not anchor or transit inland waterways during her tour in the Gulf of Tonkin; however, as the Veteran stated that he was airlifted by helicopter, and as, per the JSRRC, transcribed helicopter movements (e.g. deck logs) would not include a passenger listing, this information is not detrimental to the Veteran's claim, but does not support the claim as well. At his hearing, the Veteran provided specific information as to why he was needed ashore, and to what his specific tasks were in providing radio support to Navy and Marine Corps units that did not have an attached radioman. Given the Veteran's rate and experience as a noncommissioned officer, it is not unsurprising that his radio expertise could certainly have been needed ashore. Moreover, it is reasonable to conclude that USS America, being a large aircraft carrier that acted as flagship of its own battle group, would certainly be the main ship called upon for providing any needed support to naval operations in Vietnam while she maintained a presence in the Gulf of Tonkin (i.e. the ship, with a large crew and complex operating environment, would have the necessary personnel and supplies to aid lesser-equipped naval units). Given this, and especially in light of the testimony provided by the Veteran's former commander and his sister-in-law, the Board concludes that the assertion of service in Vietnam is credible, and that it is consistent with the type of duties associated with the Veteran's rate and duty station. Beyond the above, the Veteran's testimony before the Board seemed highly credible. Simply put, the credible evidence of record supports the Veteran's contentions that he served onshore and in the inland waterways of Vietnam for short periods between 1972 and 1973. As this is the case, and as the Veteran has a current diagnosis of type II diabetes mellitus, he is entitled to service connection. 38 C.F.R. §§ 3.307, 3.309. The claim is granted. ORDER Entitlement to service connection for diabetes mellitus, to include as a result of exposure to herbicides in the Republic of Vietnam, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs