Citation Nr: 1324284 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-19 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Service connection for diabetes mellitus, type II, was previously denied in an unappealed July 2002 rating decision. 2. Service personnel records, associated with the file in June 2006, indicate the Veteran was awarded an Armed Forces Expeditionary Medal for serving in Da Nang, Republic of Vietnam in April 1965 as a member of a Special Landing Force (SLF), Battalion Landing Team (BLT) 2-9. 3. The Veteran has a current diagnosis of diabetes mellitus, type II. CONCLUSION OF LAW 1. The criteria for establishing service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(c), 3.303, 3.307, 3.309(e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for diabetes mellitus, type II. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). However, pursuant to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the prior denial. As relevant service personnel records have been received since the July 2002 rating decision, the claim for service connection is being considered on the merits. The RO originally denied the Veteran's claim for service connection for diabetes mellitus in July 2002 on the basis that there was no evidence that the Veteran served in the Republic of Vietnam or was exposed to herbicides during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease 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). A veteran may be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Type II diabetes is among the diseases listed as presumptive to such exposure. 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(a). "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. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). Post-service private treatment records show that by January 1998 the Veteran had been diagnosed with type II diabetes mellitus. Thus, the question in this case is whether the Veteran served in the Republic of Vietnam during the relevant timeframe. The Veteran wrote on an April 2002 statement that his unit was in the waters just off of Vietnam for a month or longer at a time and that on two separate occasions he traveled up the Saigon River. A December 2005 statement from the Veteran's representative stated that the Veteran traveled up and down the Saigon River during service and that he served on ships that came within 100 yards of the Vietnam shore to pick up prisoners. The Veteran's service personnel records were associated with the claims file in June 2006. They show that in May 1965 he was awarded the Armed Forces Expeditionary Medal while a member of the 9th Marine Expeditionary Battalion in April 1965, Da Nang, Republic of Vietnam as a member of a special landing force (Battalion Landing Team 2-9). Resolving all doubt in the Veteran's favor, the Board finds the Armed Forces Expeditionary Medal documentation shows the Veteran at least as likely as not set foot in Vietnam and/or was present on an inland waterway in Vietnam. As noted above, the post-service medical records show that he has a diagnosis of type II diabetes mellitus. Therefore, the Veteran's diabetes mellitus is presumed to be due to exposure to herbicides from service in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. As such, the Board concludes that service connection for type II diabetes mellitus is warranted. ORDER Entitlement to service connection for type II diabetes mellitus is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs