Citation Nr: 1331007 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 11-10 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. A hearing before the undersigned Veterans Law Judge was held at the RO in September 2011. A transcript of the hearing has been prepared and associated with the claims file. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, he likely did set foot in the Republic of Vietnam during his military service and, thus, was exposed to herbicides. 2. Competent medical evidence confirms the Veteran's diagnosed diabetes mellitus, type II. 3. Diabetes mellitus is presumptively recognized by VA as being causally related to herbicides used in the Republic of Vietnam. CONCLUSION OF LAW Diabetes mellitus, type II, is presumed to have been caused by the Veteran's in-service exposure to herbicides. 38 U.S.C.A. §§ 1101, 1131, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for entitlement to service connection for diabetes mellitus, type II, has been granted herein. As such, any deficiencies with regard to VCAA are harmless and non-prejudicial. II. Merits of the Claim 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, slip op. at 13-14 (Fed. Cir. Feb. 21, 2013) (overruling Savage v. Gover, 10 Vet. App. 488 (1997)). Here, the Board notes that the Veteran has been diagnosed with diabetes mellitus, type II, which is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). In addition to general service connection claims, in service connection claims involving herbicide agent exposure as a result of service in the Republic of Vietnam, any of the diseases listed in 38 C.F.R. § 3.309(e) may be presumed to have been incurred in-service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The diseases are: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes mellitus; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Id. Recently, 38 C.F.R. § 3.309(e) has been amended to include hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. As the Veteran's claim does not involve such disabilities, further consideration of the implementation of the amended regulation is not required. In order to gain presumptive service connection, the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, acute or subacute peripheral neuropathy, and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year after the last date on which a Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam Era. 38 C.F.R. § 3.307(a)(6)(i). In making all determinations, the Board must fully consider the lay assertions of record. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). 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). 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran presently seeks to establish service connection for diabetes mellitus, type II, on the basis that such was caused by his in-service exposure to herbicides. The Board notes that the objective medical evidence of record confirms that the Veteran has a current diagnosis of diabetes mellitus. The Veteran's service treatment records do not indicate any in-service complaints, treatment or diagnosis of diabetes mellitus, type II. The Veteran does not claim he incurred or was treated for this condition while on active duty. Rather, the Veteran claims his military service included in-land service in Vietnam, exposing him to Agent Orange herbicides. He believes because of that exposure, he developed diabetes mellitus, type II. Based on the Veteran's claim that he was exposed to Agent Orange herbicides during his military service the Board concludes the crucial question here is whether the Veteran had service in Vietnam sufficient to raise the presumption of exposure to Agent Orange. The Veteran's service personnel records reflect he served on the USS Mullinnix (DD-944) with the Navy. A Citation reflects that the Veteran was a Radio Watch Supervisor from February to July 1969 during combat operations in the Republic of Vietnam. The Veteran's personnel records, however, do not specifically confirm the Veteran ever set foot on the soil of Vietnam or in the inland waters of Vietnam. The Veteran claimed under sworn testimony before the Board that he stepped foot in Vietnam while assisting G. T., a postal clerk, drop off and pick up mail while the USS Mullinnix was docked in Da Nang Harbor. He stated that he went onshore on several occasions. The Veteran also testified that he was on land when he travelled to Camp Tenshaw, a Marine base. In January 2011, the Veteran submitted write ups and photos from the ship's cruise book which reflects that the sailors of the USS Mullinnix did, in fact, travel ashore to Vietnam. Additionally, G. T., the postal clerk the Veteran referred to at the Board hearing, submitted a statement that he was on board the USS Mullinnix in 1969. He stated that as a postal clerk he carried outgoing mail to Camp Tenshaw along with a boat officer, radiomen, storekeeper, and two Boatswains. He stated that the Veteran would have been on these trips ashore. The Board acknowledges that the Veteran's claim has been consistent and is supported with additional evidence which indicate he was onboard the USS Mullinnix off the shores of Southeast Asia. Thus, based on the totality of the evidence, i.e., the competent and credible testimony of the Veteran, the lay statement from G. T., the excerpts from the USS Mullinnix cruise book, and his service personnel records, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran set foot in Vietnam and it is presumed that he was exposed to herbicides during active service. 38 C.F.R. § 3.307(a)(6)(iii); Layno, 6 Vet. App. 465, at 469-70. There is nothing specifically in the record raising doubt of the Veteran's credibility. Accordingly, the Veteran is entitled to have his service connection claim for diabetes mellitus evaluated under the presumptive service connection provision of 38 C.F.R. § 3.307(a)(6). As such, based on the Veteran's presumed herbicide exposure, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is applicable. Service connection due to herbicide exposure is only warranted on this basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e), including diabetes mellitus, with which the Veteran has been diagnosed. This being the case, presumptive service connection for diabetes mellitus, due to herbicide exposure, is warranted. Accordingly, the Veteran's claim of entitlement to service connection for diabetes mellitus, type II, as secondary to herbicide exposure, is granted. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs