Citation Nr: 1326460	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  13-09 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for diabetes mellitus, type II.


REPRESENTATION

Appellant represented by:	Lisa A. Lee, Attorney at Law


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel



INTRODUCTION

The Veteran had active service from November 1962 to October 1966.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.


FINDINGS OF FACT

1.  Giving the benefit of the doubt to the Veteran, he was exposed to herbicide agents during his active service.

2.  The Veteran has diabetes mellitus likely to a compensable degree.


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus, type II, have been met.  38 U.S.C.A. §§ 1110, 1116, 1131, 1154(a), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.119, Diagnostic Code 7319 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2012).

Establishing service connection generally requires medical or, in certain circumstances, lay 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

Service connection will also be presumed for certain chronic diseases, including diabetes mellitus, if manifest to a compensable degree within one year after discharge from service.  See 38 C.F.R. §§ 3.307, 3.309 (2012).

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 & Supp. 2013); 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 (the Vietnam Era) 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) (2012); 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).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511.  

The service treatment records do not show any complaints, treatment or diagnoses related to diabetes mellitus, type II.

The service personnel records state that the Veteran served at Takhli Royal Thai Air Force Base in Thailand from December 1965 to October 1966.  The Veteran's military occupational specialty in the Air Force was Inventory Management Specialist.  He was awarded the Vietnam Service Medal. 

The Project CHECO Southeast Asia Report on base defense in Thailand, which was prepared in February 1973 by the Air Force, indicates that herbicide agents were used for vegetation control at air bases in Thailand during the Vietnam Era.

The Veteran wrote in a May 2008 statement that when he traveled between Travis Air Force Base, California and Thailand there was a stop in Vietnam and that he got off the airplane.  On his return from Thailand he also stopped in Vietnam and got off of the airplane.  The Veteran wrote in a February 2009 statement that his plane landed in Vietnam on the way to Thailand.

Giving the benefit of the doubt to the Veteran, the Board finds that he was exposed to herbicide agents while stationed at Takhli Royal Thai Air Force Base in Thailand.  As discussed above, the Project CHECO Southeast Asia Report states the herbicide agents were used at air bases during the time period when the Veteran was stationed in Thailand.  The Board also finds that the Veteran's reports of having a stopover in Vietnam on the way to and from Thailand are credible.  Giving the benefit of the doubt to the Veteran, the record shows that he served in Vietnam during the Vietnam Era even though the service personnel records do not indicate service within Vietnam.  

In view of the above, the Veteran's claimed diabetes mellitus, type II, shall be presumed to be service-connected even though there is no record of such disease during service if the diabetes mellitus has become manifest to a degree of 10 percent or more and there is no affirmative evidence to the contrary.  See 38 C.F.R. § 3.307(a)(6)(ii), (d)(1).

A private physician wrote in a September 2007 letter that he had treated the Veteran since May 2007 and that the Veteran had been diagnosed with diabetes mellitus, type II, earlier in the year.  Moreover, private treatment records show that the Veteran was prescribed Meformin; thus, the manifestations of his diabetes mellitus are likely to a compensable degree.  See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012).  Furthermore, there is no affirmative evidence showing that the Veteran's diabetes mellitus was not incurred in service.  

Accordingly, the Veteran's diabetes mellitus, type II, is presumed to be due to exposure to herbicides due to service at a base in Thailand where herbicides were used and 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 diabetes mellitus, type II, is warranted.


ORDER

Service connection for diabetes mellitus, type II, is granted.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs