Citation Nr: 1321802	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  11-33 984	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Hudson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from June 1958 to May 1960, February 1964 to July 1968 and January 1970 to October 1973.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  Jurisdiction of the claim was subsequently transferred to the RO in Reno, Nevada.  

In March 2012, the Veteran testified at a Travel Board hearing before the undersigned.  A transcript of the hearing is associated with the claims file.  At that time, the Veteran submitted additional evidence in support of his contention that he was exposed to herbicides while in service with a waiver of RO jurisdiction. 

In November 2012, the Board remanded the case to the RO for additional evidentiary development.  As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal.  See Stegall v. West, 11 Vet. App. 268 (1998).  The RO continued the denial of the claim as reflected in the March 2013 and April 2013 supplemental statements of the case and returned this matter to the Board for further appellate consideration.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).





FINDINGS OF FACT

1.  The Veteran served in Thailand at the Royal Thai Air Force Base at U-Tapao in 1967 and operated from the southern perimeter of the Base.

2.  The Veteran was exposed to herbicides during his service in Thailand during the Vietnam era.

3.  The Veteran has a current diagnosis of diabetes mellitus type II.


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus type II, presumptively due to herbicide exposure, have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Compliance with Prior Board Remand

The Board observes that this case was previously remanded in November 2012 to obtain further evidentiary development regarding the Veteran's claims of herbicide exposure during his service in Thailand.  Specifically, the Board directed the RO to follow the appropriate verification procedures as set forth in the VA Adjudication Manual.  See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q).  The RO placed a copy of the memorandum regarding herbicide use in Thailand during the Vietnam era in the Veteran's file, obtained the Veteran's dates of service in Thailand when he claimed herbicide exposure, and received a formal finding from the United States Joint Services Records Research Center (JSRRC).   Thus, it appears there was substantial compliance with the prior remand order and the Board may continue with its determination.  Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

II.  VA's Duties to Notify and Assist

VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial.

III.	  Service Connection

The Veteran contends he has diabetes mellitus type II that is related to his military service, specifically his exposure to herbicides in Thailand and Vietnam during the Vietnam era. 

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following:  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Further, VA regulations provide that certain diseases associated with exposure to herbicide agents, including diabetes mellitus type II, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  See 38 C.F.R. § 3.309(e) (2012).  

Based on a review of the evidence of record, the Board finds that service connection for diabetes mellitus type II is warranted.

As an initial matter, November 2001 VA treatment records reflect a diagnosis of new onset diabetes mellitus.  See Reno VA Medical Center (VAMC), Primary Care Resident Note, November 2001.  The Veteran continues to receive treatment for his diabetes mellitus condition.  See Veteran's Hearing Transcript, pg. 9, March 2012.  Thus, the pertinent question is whether the Veteran was, in fact, exposed to herbicides during service.

One of the Veteran's contentions is that he was exposed to herbicides while serving in Thailand during the Vietnam War.   The Veteran stated that he had a temporary duty assignment at the Royal Thai Air Force Base in U-Tapao, Thailand, where he served as a Navy pilot from July 1967 to December 1967.  See Veteran's Letters, February 2007 and January 2013; see also, Veteran's Hearing Transcript, pgs. 8, 12, March 2012.  The Veteran's service in Thailand during the Vietnam era was confirmed by the JSRRC in a March 2013 memorandum.  

During his March 2012 hearing, the Veteran testified that upon arrival at the Royal Thai Air Force Base in U-Tapao there were very few facilities and he lived in a tent.  See Veteran's Hearing Transcript, pgs. 8-9, March 2012.  He also testified that his operational area at the base was at the southern end, "right at the perimeter," approximately a three-minute walk to the beach.  Id. at 12.  In a January 2013 letter, the Veteran stated that his location on the Royal Thai Air Force Base in U-Tapao was as the southern end, very near the boundary of the Base and the Gulf of Siam.  Additionally, he claimed that the southern end of the Royal Thai Air Force Base in U-Tapao was bordered by a band of trees that interfered with air operations and was sprayed with herbicides while he was stationed there.

Consistent with Fast Letter 09-20, the RO has placed in the claims file a Memorandum for the record regarding herbicide use in Thailand during the Vietnam Era.  See Fast Letter 09-20 (May 6, 2009).  This Memorandum notes that, while the Thailand CHECO Report did not report the use of tactical herbicides on allied bases in Thailand, it did indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters.  Therefore, if a veteran's military occupational specialty (MOS) or unit was one which regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides.  

VA has adopted specific procedures to determine whether a veteran was exposed to herbicides in Thailand during the Vietnam era.  VA's Adjudication Procedures Manual, M21-1MR, directs that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain military bases in Thailand, including the Royal Thai Air Force Base at U-Tapao.  See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q).

Although there is no record of assignment to perimeter duty, the Board finds the Veteran's consistent assertions regarding time spent near the perimeter of the Royal Thai Air Force Base in U-Tapao to be credible.  Therefore, in view of the aforementioned guidance from the M21-1 MR, the Board finds that the Veteran was exposed to herbicide agents while he was stationed at the Royal Thai Air Force Base in U-Tapao during the Vietnam era.  See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q).

As previously noted, the post-service medical evidence shows that the Veteran has diabetes mellitus type II, which is listed as a disease associated with exposure to herbicide agents.  See 38 C.F.R. § 3.309(e).  There is no affirmative evidence showing that the Veteran's diabetes was not caused by herbicide exposure. 

The evidence of a current diagnosis of diabetes, coupled with the Veteran's in-service herbicide exposure, satisfies the presumptive service-connection criteria of 38 C.F.R. § 3.309(e).  Therefore, the Board concludes that service connection for diabetes mellitus type II is warranted.  


ORDER

Service connection is granted for diabetes mellitus type II.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


 
Department of Veterans Affairs