Citation Nr: 1323905 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-02 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as a result of in-service exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Associate Counsel INTRODUCTION The Veteran had active service from June 1965 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2011, the Veteran was afforded a hearing before a Veterans Law Judge who is now retired. Another videoconference hearing was held before the undersigned Acting Veterans Law Judge in April 2013. This issue was remanded by the Board in August 2011 and September 2012. Additional evidence was also received for the file in June 2013. Although unaccompanied by a waiver, the Board has seen fit to review the evidence. As the claim is being granted consideration of such evidence is not prejudicial in this case. FINDINGS OF FACT 1. The Veteran's military duties included visitation to the Republic of Vietnam in November 1968, and he is therefore presumed to have been exposed to herbicides in service. 2. The medical evidence establishes that the Veteran has diabetes mellitus, type II, which is presumed to be related to Agent Orange exposure during the period of active service. CONCLUSION OF LAW Diabetes mellitus, type II, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) 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, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the disposition is fully favorable to the Veteran. As such, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. Service Connection Service connection may be granted on a direct basis for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 2002). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2012), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The specified diseases which have been listed therein include diabetes mellitus, type II. 38 C.F.R. § 3.307(a)(6), 3.309(e). Moreover, the diseases listed at 38 C.F.R. § 3.309(e), including diabetes mellitus, type II, shall have become manifest to a degree of 10 percent or more at any time after service, with certain exceptions inapplicable in this case. 38 C.F.R. § 3.307(a)(6)(ii). Thus, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). See Brock v. Brown, 10 Vet. App. at 162. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the 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 preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran asserts that his diabetes mellitus is a result of a one day (overnight) trip to Vietnam. Specifically, he claims that in November 1968, while stationed in the Philippines with the First Mobile Communications Group (MCG), he flew from Clark Air Force Base to the Republic of Vietnam. Service records show the Veteran served in the Philippines from May 26, 1968 to August 15, 1969. Records also indicate that from November 1968 through August 1969 he was assigned to the 1st MCG. Reports from the Joint Services Records Research Center (JSRRC) noted history submitted by the 1st MCG revealed that in November 1968, four personnel were sent to Long Binh to provide maintenance assistance, but that the history did not list the names of the personnel deployed. However, according to the Veteran he did not go to Vietnam as part of a maintenance team. Rather, he contends that he went to Long Binh to deliver parts. The Veteran's AF Form 7 indicates he was on temporary duty to "SEA" from November 24, 1968, to November 25, 1968. The Veteran claims that "SEA" stands for Southeast Asia, and the Board agrees. However, Southeast Asia includes Vietnam, Thailand, Laos, and Cambodia. Historical information in the claims file, however, suggests that TDY to SEA for 24-25 November 1968 would likely have been to Vietnam because it was during that period when the Vietnam bases were recovering from the major 1968 Tet Offensive during which destruction of US equipment occurred, possibly necessitating replacement parts. The Veteran has consistently claimed that his pay records for the month of November 1968 would show that his pay that month, including his reenlistment bonus, were non-taxable as a result of him being in a combat zone. However, all necessary actions have been undertaken to retrieve these records without success. The Defense Finance and Accounting System (DFAS) has indicated that the record boxes that would contain those records are missing. Consequently, a Formal Finding of Unavailability of pay records was made in May 2008, and the Veteran was sent a letter advising him of this and the actions taken by the RO in attempting to retrieve his pay records. Based on official military historical records, the Veteran's testimony, and service records which have been obtained, the Board finds that reasonable doubt has been presented on the issue of whether or not the Veteran was in-country in Vietnam. Giving the benefit of the doubt to the Veteran in that regard, the Board concludes, for purposes of adjudication of the appealed issue, that the Veteran was on the ground in Vietnam for at least one day during all of his military service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1991). There is no affirmative evidence demonstrating he was not exposed to herbicides during such visitation. Thus, the Veteran is presumed to have had exposure to Agent Orange during his visitation under VA regulations. The Veteran further contends that he is entitled to service connection for diabetes mellitus, type II, on a presumptive basis based on his exposure to Agent Orange during his brief interval in-country in Vietnam. The Veteran's service treatment records are negative for diabetes or findings of elevated blood glucose . VA treatment records include diagnoses and treatment of diabetes mellitus. Numerous VA treatment records reflect diagnoses of diabetes mellitus, Type II or unspecified. A September 2004 treatment report reflects that the Veteran had diabetes for the previous 20 years. The medical evidence of record also indicates that the Veteran's diabetes is categorized as insulin-dependent. According to a November 2006 VA report, the Veteran was noted to have diabetes mellitus, type 2, because he was diagnosed at the age of 40 in 1986 and he does not meet the definition for type 1 diabetes. Given that the Veteran has a diagnosis of type II diabetes mellitus, and service in Vietnam with exposure to Agent Orange, affording the Veteran the benefit of all doubt, the Board finds that the Veteran is thus entitled to a presumption of Agent Orange exposure in service based on one day of service on the ground in Vietnam, and is thereby entitled to a presumption of service connection for diabetes mellitus, type II, based on that Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The claim for entitlement to service connection is granted. ORDER Service connection for diabetes mellitus, type II, is granted. ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs