Citation Nr: 1319036 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-12 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease, status post acute myocardial infarction and stent placement, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1966 to February 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in June 2010 and a transcript of the hearing is associated with the record. The Veteran also requested a Travel Board hearing; he failed (without giving cause) to report for such hearing scheduled on March 10, 2013. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). FINDINGS OF FACT 1. The evidence of record shows that the Veteran has current diagnoses of diabetes mellitus type II and coronary artery disease. 2. Resolving the benefit of the doubt in favor of the Veteran, the Veteran was exposed to herbicide agents during active military service. The evidence therefore links the Veteran's diabetes mellitus and coronary artery disease to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. Type II diabetes mellitus is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Coronary artery disease is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants the appellant's claim, there is no reason to belabor the impact of the VCAA on these matters, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including diabetes mellitus) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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(d)(6)(iii). Service in the Republic of Vietnam 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. Id. 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) are met, even though 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: chloracne or other acneform diseases consistent with chloracne, Type II diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. For the purposes of section 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a regulatory established presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a claimant must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis In consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for type II diabetes mellitus and coronary artery disease. The medical evidence shows that the Veteran has been diagnosed with type II diabetes mellitus since 1987 and coronary artery disease since 1998. The Veteran has contended that his diabetes is related to his period of active service based on his alleged exposure to herbicides. He contends that his coronary artery disease is related to his diabetes. For the purposes of the decision herein, the Board has found that the Veteran is entitled to the presumption of service connection due to herbicides exposure, and therefore, the other bases and arguments for service connection will not be discussed. The Veteran has stated that he was exposed to herbicides during his service in Thailand. The personnel records show that the Veteran was stationed in Thailand from July 1967 to July 1968 at Ubon Royal Thai Air Force Base. He was assigned to the 8th Field Maintenance Squadron. He stated that his day to day duties placed him on or near the perimeters of the Ubon Thailand military base. He stated that he personally sprayed around the barracks with Agent Orange to prevent grass growth and sprayed between runways and taxiways. The Veteran additionally stated that while in Thailand, he was on the flight line where he was exposed to and handled material and equipment that had been "in country," and indicated that he flew into Vietnam on several occasions. The claims file includes a copy of the Compensation and Pension Service (C&P) Memorandum for the record. The memorandum notes that a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense (DoD) was reviewed. The list contained 71 sites within the U.S. and in foreign countries where tactical herbicides were stored. It was noted that the DoD list indicated that limited testing of tactical herbicides was conducted in Thailand from April to September 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. It was noted that tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. In addition, there were no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand in 1964, and RANCH HAND that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. It was noted that there was a great likelihood of exposure to commercial pesticides, including herbicides for those who had regular contact with the base perimeter. A VA C&P Service Bulletin is also associated with the record. This Bulletin highlights new procedures for claims based on herbicide exposure in Thailand and Korea. The Bulletin notes that the C&P Service has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as noted in the Project CHECO Southeast Asia Report: Base Defense in Thailand. According to the Bulletin, the DoD has provided information that commercial herbicides, rather than tactical herbicides, were used within the confines of Thai bases to control weeds; these commercial herbicides do not fall under VA's regulations governing presumptive service connection for certain diseases. However, the Bulletin notes that there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or were a commercial variant of much greater strength and with characteristics of tactical herbicides. Therefore, the C&P Service now has determined that a special consideration of herbicide exposure on the facts found or direct basis should be extended to Veterans whose duties placed them on or near the perimeters of Thai military bases. This permits presumptive service connection of the diseases associated with herbicide exposure, such as diabetes and coronary artery disease. The Ubon base, where the Veteran was stationed, is specifically mentioned in the Bulletin as one of the places were U.S. troops were stationed in Thailand during the period between February 1961 and May 1975. The C&P Bulletin noted above cannot definitely rule out that the DoD used tactical herbicides at Ubon at the time the Veteran was stationed there. The Veteran has testified and continually stated that he worked right near the perimeters of the base, which was located right near the air strip, and additionally flew into Vietnam on several occasions. Further, his personnel records show the Veteran worked in a maintenance squadron, consistent with his statements of duties including spraying pesticides to kill grass growth along the perimeters of the base and along the air strip. The Board finds that the evidence has demonstrated that a portion of the Veteran's service was located in close proximity to the base perimeter, which the bulletin particularly notes as service "for which herbicide exposure should be acknowledged[.]" Additionally, the record contains no evidence that would lead the Board to question the Veteran's credibility, or his claims to serving near the perimeters of the base as noted. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistent with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Therefore, based on the record as a whole, the Board finds that, resolving any doubt in the Veteran's favor, the Veteran was exposed to herbicides while serving in Ubon. Since the Veteran was exposed to tactical herbicides at the Ubon base in Thailand, he is entitled to service connection for his claimed type II diabetes mellitus and coronary artery disease on a presumptive basis. The Board reiterates that service connection is only warranted on this presumptive basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e) as listed above. As previously noted, the evidence shows that the Veteran was diagnosed with diabetes and coronary artery disease (or ischemic heart disease as defined by section 3.309). As the Veteran's diagnosed disabilities are among the diseases recognized under 38 C.F.R. § 3.309(e) associated with exposure to certain herbicide agents, presumptive service connection on the basis of herbicide exposure for type II diabetes mellitus and coronary artery disease is granted. ORDER Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for coronary artery disease is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs