Citation Nr: 1326910	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  08-33 190	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Purdum, Counsel

INTRODUCTION

The Veteran served on active duty from June 1970 to February 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision of the Department of Veterans Affairs (VA) Regional Office in Togus, Maine, which denied service connection for a skin disorder and diabetes mellitus type II.  Jurisdiction over the appeal currently resides with the RO in Detroit, Michigan.  In September 2009, the Veteran testified at hearing before a Decision Review Officer (DRO), and in August 2011, he testified at a video hearing before the undersigned. 

In September 2010, the Board denied service connection for a skin disorder and remanded the issue of service connection for diabetes mellitus type II for additional development.  The file has now been returned to the Board for further consideration.

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


FINDINGS OF FACT

1.  The Veteran served at the Royal Thai Air Force Base (RTAFB) in Nakhon Phanom, Thailand, during the Vietnam Era, as a telephone switching equipment repairman and had duties on the air base perimeter; exposure to toxic herbicides is thus conceded. 

2.  Diabetes mellitus type II is a disability that is presumed related to toxic herbicide exposure. 





CONCLUSION OF LAW

Diabetes mellitus type II is presumed to have been incurred in active military service.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1116, 5103A, 5107 (West 2002 & Supp. 2011); 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 Appellant

In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied, including discussion of whether the August 2011 Board hearing was conducted in compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. § 3.103(c)(2) (2012) or whether there was substantial compliance with the September 2010 Board remand, is not required.  The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran.

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. 
§ 3.303(a).  Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In order to establish service connection, the evidence must generally show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology.  The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013).  For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). 

Diabetes mellitus is listed as a chronic condition under 38 C.F.R. § 3.309(a).  Therefore, diabetes mellitus can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b).  In addition, such may be presumed to have been incurred in service if it becomes manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A.         §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. 

A layperson is competent to report on the onset and continuity 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).  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, supra. 

A Veteran shall be presumed to have been exposed to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, where the evidence can establish that the Veteran served on active duty in one of a few specific locations.  38 C.F.R. § 3.307.  Most commonly, these presumptions apply to Veterans who served on active duty in the Republic of Vietnam from January 9, 1962 to May 7, 1975.  38 U.S.C.A. § 1116.  However, exposure to such herbicides is also presumed for Veterans who served in specific specialties at certain RTAFBs during the Vietnam Era.  If a Veteran was exposed to a herbicide agent during active military, naval, or air service, diabetes mellitus type II shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) are met even if there is no record of such disease during service.  38 C.F.R. § 3.309(e).

The procedures for establishing exposure to toxic herbicides for Veterans stationed in Thailand during the Vietnam Era are set forth in the VA Adjudication Procedures Manual (M21-1MR), Part IV.ii.2.C.10.q (January 15, 2013).  Under this section, as is relevant here, exposure will be conceded for Veterans who served with the U.S. Air Force in a position which required duty on the air base perimeter (to include security police, dog handlers, etc.).  Exposure will also be conceded for any U.S. Army veteran who served with a military police (MP) unit, or with a military police occupational specialty, on the RTAFBs in U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang. 

If the evidence does not indicate that a Veteran served on a specified RTAFB in such a capacity, with duty on the air base perimeter, a "memorandum of record" will be incorporated into the claims file, which details the use of tactical herbicides in Thailand during the Vietnam era.  Based on the information contained in this memorandum, as well as any information the Veteran submits, exposure will be considered based on the evidence of record, which may require referral of the case to the Joint Services Records and Research Center (JSRRC) for additional development. 

The Veteran asserts that his diabetes mellitus type II is related to his in-service herbicide exposure while serving in Thailand during the Vietnam era.  His service treatment records are silent for complaint, treatment, or diagnosis of diabetes mellitus type II.  Private treatment records dated in October 2004 indicate that the Veteran was diagnosed with diabetes mellitus type II.  In December 2011, a VA examiner opined that the Veteran's diabetes mellitus type II, considering the information provided to the examiner as to herbicide exposure, was at least as likely as not related to such exposure.

At the time of his August 2011 Board hearing, the Veteran asserted that he worked at the RTAFB in Nakhon Phanom, Thailand, inside and outside of the communications plant; and that he had a top secret clearance which allowed him to work at Task Force Alpha.  He reported that the facility housing Task Force Alpha was in the very back of the base, at the perimeter, and he walked through woods to the back of the building often.  The Board finds that the Veteran is competent to report the circumstances of his service and there is no evidence that he is not credible in this regard.  Layno, 6 Vet. App. 465, at 470.

The Veteran's DD-214, his service separation form, and other service personnel records indicate that he had a top secret clearance, and served in Indochina, at the RTAFB in Nakhon Phanom, Thailand, beginning in April 1973.  Of note is a performance report reflecting the time period of August 1972 to August 1973, indicating that the Veteran served as a telephone switching equipment repairman, responsible for installation and maintenance of a 2000 line telephone exchange.  The performance report reveals that the Veteran was responsible for aiding in the location and correction of outside plant troubles and the testing and repair of tandem long line circuits.   

In this case, the Board finds that the requirements of M21-1MR have been met, and exposure to toxic herbicides should be conceded.  As the Veteran did not serve in a position which VA has conceded required duty on the air base perimeter, VA prepared a "memorandum of record" and sought a statement from the JSRRC.  In May 2012, the JSRRC reported that a search of available historical information revealed no documentation of spraying, testing, transporting, storage, or usage of Agent Orange at Nakhon Phanom RTAFB, or that unit members were exposed to Agent Orange.  The JSRRC also reported that the search revealed no documentation on the unit's proximity to the base perimeters or the Veterna's duty locations to the base perimeters.  

VA Adjudication Procedures Manual (M21-1MR), Part IV.ii.2.C.10.q provides for conceding exposure to herbicides at RTAFBs where there is credible evidence that the claimant was near the base perimeter.  In this case, while the JSRRC report is negative as to a history of recorded exposure to herbicides at the RTAFB, there is in this case credible evidence that the Veteran was near the base perimeter.  The JSRRC report does not address such.  Specifically, as noted above, the Veteran's performance report described his duties to include aiding in the location and correction of outside plant troubles and the testing and repair of tandem long line circuits, duties the Board finds to be consistent with work along the perimeter of the RTAFB.   
  
Thus, the Board finds that based on the Veteran's competent and credible lay statements, together with his service personnel records, all reasonable doubt should be resolved in his favor and it is at least as likely as not that he was exposed to an herbicide agent during active military service in Thailand.  M21-1MR, Part IV.ii.2.C.10.q.  Moreover, given that diabetes mellitus type II is a disease that is presumed related to toxic herbicide exposure under 38 C.F.R. § 3.307 and 3.309, service connection is warranted on this basis.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

There is thus no need to resolve whether service connection may be granted for diabetes mellitus type II on the basis of such manifest to a compensable degree within one year of separation from service, or by February 1975, or continuous diabetes mellitus type II from February 1974 to the present.  38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, at 1337-39.


ORDER

Service connection for diabetes mellitus type II, to include as secondary to herbicide exposure, is granted, subject to the laws and regulations governing monetary awards.


____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs