Citation Nr: 1330030	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  11-11 877	)	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, claimed as due to exposure in service to herbicides.



REPRESENTATION

Appellant represented by:	James G. Fausone, Esq.



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel




INTRODUCTION

The Veteran served on active duty from June 1960 to June 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.


FINDINGS OF FACT

1.  The Veteran is competently diagnosed with diabetes mellitus, Type II.

2.  The Veteran as likely as not performed perimeter security duties at Udorn Royal Thai Air Force Base during a period in which such duties presumptively exposed him to herbicides. 


CONCLUSION OF LAW

Diabetes mellitus Type II is due to or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the decision below, the Board grants the Veteran's request for service connection.  As this represents a complete grant of the benefit claimed, no discussion of VA's duty to notify and assist is necessary.

Applicable Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection may be presumed for diabetes mellitus if that disease became manifest to a compensable degree within the first year after discharge from service.  38 C.F.R. §§ 3.307, 3.309(a).  Service connection for diabetes mellitus Type II may also be presumed where the veteran was exposed to herbicides during service.  38 C.F.R. §§ 3.307, 3.309(e).  

Per a VA Public Health bulletin, Vietnam-era veterans whose service involved duties on or near the perimeters of Royal Thai Air Force Bases (RTAFBs) anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides and may qualify for VA benefits.  To receive benefits for diseases associated with herbicide exposure, such veterans must show on a factual basis that they were exposed to herbicides during their service as shown by evidence of daily work duties, performance evaluation reports or other credible evidence.

In making all determinations, the Board must fully consider the lay assertions of record.  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, and 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 v. Brown, 7 Vet. App. 498, 511 (1995).  The Board is not required to accept a veteran's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190, 192 (1991).   However, if the Board determines that a Veteran's statements are not credible, the Board must provide a reason for such finding.
 
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 (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 (Court) 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).  

When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Evidence and Analysis

The Veteran is competently diagnosed with diabetes mellitus, Type II (see VA primary care treatment note dated in July 2008; see also private medical treatment notes dated from December 2001 through May 2005).  Accordingly, the first element of service connection - medical evidence of a claimed disability - is met.

The Veteran's service personnel record establishes that he deployed to Udorn RTAFB in 1961 as part of Marine Air Base Squadron 16 (MABS-16).  His parent unit, to which he was assigned prior to duties with MABS-16 and to which he returned thereafter, was Company I, 3rd Marine Regiment, 3rd Marine Division, and his primary duty specialty in that unit was Browning automatic rifleman (BARman).  He arrived at Udorn RTAFB on July 1, 1961, and returned to Okinawa on August 24, 1961.  He accordingly was present at Udorn RTAFB during the period in which herbicides may have been used on the base perimeter, and resolution of the claim revolves around whether he performed duties on or near the base perimeter.

In denying the claim, the RO conceded that the Veteran was present at Udorn RTAFB during the period asserted but found there was no evidence that his duties were as a security policeman, security patrol dog handler, member of a security police squadron, or other military occupational specialty (MOS) that served near the air base perimeter.  See Supplemental Statement of the Case (SSOC) dated in November 2011.   

In support of his contention that he served in a security function, the Veteran submitted a document entitled Operation Millpond: U.S. Marines in Thailand, 1961 (Historical Division, United States Marine Corps, 2009).  This document states that MABS-16 included an infantry platoon from the 3rd Marine Regiment of the 3rd Marine Division (see page 7), which the Board notes was the Veteran's parent unit.  The document is silent in regard to the role performed by the infantry platoon.

The Veteran also submitted an internet article entitled U.S. Military Arrives at Udorn.  This article states that 55 Marines (one platoon) from the 3rd Marine Division performed missions as a security detail.  The article states that Udorn was a very rural area when MABS-16 arrived, with no fence around the airfield; civilians freely walked around the airfield and the local police were unable to secure the outer perimeter.

Finally, the Veteran submitted a letter dated in April 2011 stating that he performed security (guard) duty all over Udorn RTAFB, to include the base perimeter and fence.   He enclosed the names and addresses of five other veterans, including his former commander, who could confirm the Veteran's duties if asked to do so.

The Board must consider the purpose for which lay evidence is offered.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Veteran's lay evidence is offered to prove the nature of his duties in service, a subject that lay evidence is competent to address.

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza, 7 Vet. App. 498.  The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

Resolving all doubt in the Veteran's favor, the Board finds that the evidence of record credibly establishes that the Veteran as likely as not performed security duties on the perimeter of Udorn RTAFB as he asserts.  The Veteran's assertion of his duties is entirely consistent with his MOS (BARman in an infantry platoon assigned to perform security for a MABS) and with the security situation at Udorn RTAFB when his unit arrived (an essentially porous perimeter not adequately controlled by local police).  Whereas such duties were performed during his service in Udorn from July to August 1961, a period between February 28, 1961 and May 7, 1975, exposure to herbicides is conceded and service connection for diabetes mellitus Type II under the provisions of 38 C.F.R. § 3.309(e) is warranted.

Because the evidence is at least in equipoise, reasonable doubt has been resolved in the Veteran's favor.  38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 54.   

     
ORDER

Service connection for diabetes mellitus Type II is granted.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs