Citation Nr: 1326721 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 08-15 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been received to reopen the claim of service connection for diabetes mellitus, type II. In an April 2012 decision, the Board reopened the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, and denied the claim on the merits. The Veteran appealed the April 2012 decision to the United States Court of Appeals for Veterans Claims (Court or CAVC) insomuch as it denied the claim for service connection for diabetes mellitus, type II, to include as due to herbicide exposure. In January 2013, the Court granted the Joint Motion for Remand and issued an order vacating and remanding the Board's April 2012 decision, only to the extent that it denied the entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. The Joint Motion for Remand did not disturb the portion of the April 2012 decision that reopened the claim for service connection for diabetes mellitus, type II, to include as due to herbicide exposure. Instead, the Joint Motion for Remand provided that the Board erred by not providing an adequate statement of reasons and bases for the determination that the record was adequately developed for the purpose of adjudicating the Veteran's claim for service connection for diabetes mellitus, type II, to include as due to herbicide exposure. Subsequent to the issuance of the January 2013 Court order granting the Joint Motion for Remand, the Veteran submitted additional evidence and argument in support for his claim for service connection, for which a waiver of initial RO consideration was provided. See June 2013 90-Day Letter Response Form. FINDINGS OF FACT 1. The Veteran was as likely as not exposed to herbicide agents while he served in Thailand during the Vietnam era. 2. The Veteran has type II diabetes mellitus that is presumed to be related to exposure to herbicide agents during active military service. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The claim of service connection for diabetes mellitus, type II, to include as due to herbicide exposure has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of type II diabetes mellitus is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(e). Type II diabetes mellitus is listed as a disease associated with exposure to herbicide agents. Id. The term "herbicide agent" is defined as 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, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). VA 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 evidenced in "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). For the reasons set forth below, the Board finds that the Veteran is entitled to service connection for type II diabetes mellitus on a presumptive basis. A review of the Veteran's post service treatment records reflect the Veteran's history of and treatment for diabetes mellitus, type II. An August 1998 VA general medical examination report noted an impression of recently discovered diabetes mellitus, by history, and the Veteran was formally assessed with diabetes mellitus, type II, in a February 2000 VA outpatient treatment record. Subsequent VA outpatient treatment records from February 2000 to December 2006 document the Veteran's ongoing treatment for the disability on appeal. Thus, the evidence establishes the existence of the claimed disability. Further, the Veteran's service personnel and treatment records reveal that he was stationed at the Korat RTAFB in Thailand, and his service personnel records document such service from September 1967 to September 1968. Therefore, the Veteran served in Thailand during the Vietnam Era and was stationed at one of the Air Force Bases known to have been exposed to herbicides. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). That notwithstanding, the Veteran's service in Thailand did not encompass being an Air Force security policeman, security patrol dog handler, member of the security police squadron, member of a military police unit, or with a military police occupational specialty. As such, the remaining element as to whether the Veteran is entitled to the presumption of herbicide exposure is whether he served along the perimeter of Korat RTAFB. The Board finds that the evidence of record is in equipoise as to whether this element has been established. In statements submitted in June 2013, the Veteran contends that his service at Korat RTAFB as an Aerospace Ground Equipment (AGE) technician frequently brought him near the base perimeter. Specifically, the Veteran's signed March 2013 statement and attached photographs and maps of Korat RTAFB demonstrate that the AGE shop was in the northeastern section of Korat and a large section of the work area was within 500 meters from the fence line. Further, the Veteran maintains that his living quarters, known as "hootches," were also very close to the perimeter, some as near as 11 meters. The Veteran further reported that the area for physical training was approximately 35 meters from the perimeter and the softball field was about 125 feet from the perimeter. Moreover, the Veteran stated that AGE personnel were occasionally assigned the responsibility to guard the perimeter area when suspect perimeter security breaches occurred. The Veteran noted that written orders for guarding the perimeter were not always created. The Veteran further reported that his work assignments, which required his physical presence on all areas of the flight line and trim pads, were in close proximity to the perimeter fence. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's statements regarding the nature and responsibilities of his service while at Korat RTAFB are credible. The Board finds that the Veteran appears to have served in an area that was in close proximity of the base perimeter. His statements indicate that he regularly had contact with the perimeter of the flight line and trim pads as an AGE technician. His living quarters and recreational spaces also were near the perimeter of the base. The Board finds that these descriptions are consistent with the duties of his military occupational specialty as an AGE technician and with the photographs and maps from Korat RTAFB. Moreover, his accounting as to the type of duties he performed within the perimeter of Korat RTAFB are deemed competent lay evidence of what the Veteran observed during his period of service in Thailand. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. There is nothing in the available service records, to include his DD Form 214 that would refute the Veteran's recollections. Therefore, based on his credible assertion of serving near the perimeter of Korat RTAFB, the evidence submitted in support of the claim, including photographs and maps of Korat RTAFB, and resolving reasonable doubt in his favor, the Veteran is presumed to have been exposed to herbicide agents. Further, as he is shown to have been exposed to herbicides, the presumption of service connection for diabetes mellitus, type II attaches. Service connection for type II diabetes mellitus is thereby warranted. ORDER Service connection for diabetes mellitus, type II, to include as due to herbicide exposure is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs