Citation Nr: 1332107	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  10-27 742	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for Type II diabetes mellitus with associated peripheral neuropathy of the lower extremities, including as a result of exposure to dichlorodiphenyltrichloethane (DDT).


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Hancock, Counsel

INTRODUCTION

The Veteran served on active duty from November 1956 to November 1960.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. 

A hearing was held in May 2013, with the Veteran sitting at the RO at a hearing conducted by the undersigned Acting Veterans Law Judge.  A transcript of the hearing testimony (transcript) is associated within Virtual VA (an electronic data-based system).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Resolving all doubt in the Veteran's favor, his type II diabetes mellitus with peripheral neuropathy was incurred in, or caused by, his military service.


CONCLUSION OF LAW

The criteria for service connection for Type II diabetes mellitus with associated peripheral neuropathy are met.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.  

In light of the Board's favorable determination with respect to the claim for service connection, no further discussion of notice/duty to assist compliance is needed at this time.

Laws and Regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1131, 38 C.F.R. § 3.303.  Service connection may also be warranted 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).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.

Diabetes mellitus may be presumed to have been incurred during active military service if it becomes manifest to a degree of 10 percent within the first year following active service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).  In this case, there is no evidence that diabetes mellitus manifested to any degree during the first year after the Veteran completed his active duty service.

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309.

Service in Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in Vietnam.  38 C.F.R. § 3.313.  If a veteran was exposed to an herbicide agent in the Republic of Vietnam during the period beginning January 9, 1962, and ending May 7, 1975, certain diseases, including Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e), Note 2.

Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea.  Specifically, VA added a new paragraph (a)(6)(iv) to 38 C.F.R. § 3.307, which provides that a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.

Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2 ,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).

Here, the Veteran is essentially claiming that his claimed Type II diabetes mellitus with peripheral neuropathy is attributable to his being exposed to herbicides, like DDT, while serving in Okinawa, Japan.  He is clearly not contending that either his diagnosed mellitus or peripheral neuropathy was manifested during any pertinent presumptive period or that he served in Vietnam or Korea during the periods noted above.  

After a careful review of the record, the Board finds that service connection for Type II diabetes mellitus with associated peripheral neuropathy of the lower extremities is warranted.

Factual Background/Analysis

The issue before the Board is entitlement to service connection for Type II diabetes mellitus and peripheral neuropathy of the lower extremities.  The Veteran has essentially argued that this is the result of exposure to dichlorodiphenyltrichloethane (DDT).  The Veteran served on active duty from November 1956 to November 1960, with apparent service on Okinawa. 

The Veteran maintains that he was exposed to DDT while serving on active duty on Okinawa.  The Veteran's service treatment records are unavailable, and were apparently destroyed in a fire at the National Personnel Records Center in the 1970s.  The Board is mindful that, in a case such as this, where complete service records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  While it is unfortunate that the Veteran's complete service records are unavailable, the appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened duty in mind.  The Veteran's military personnel records have also been deemed to be unavailable.  Nonetheless, the record supports the Veteran's account that DDT was sprayed extensively during his period of service on Okinawa.  The record includes several lay statements from individuals who reported that they served on Okinawa in the late 1950's and were exposed to herbicides.

The Veteran contends that he now has Type II diabetes mellitus and peripheral neuropathy as a result of his in-service exposure to DDT.  Specifically, he claimed as part of his October 2009 notice of disagreement (see VA Form 21-4138), that while the RO had repeatedly referred to the Veteran claiming to have been exposed to "Agent Orange" in service, the Veteran commented that he in fact did not know what "specific" herbicide was used.  He added that he used this herbicide while working daily in the brush.  In the course of his May 2013 hearing before the undersigned, the Veteran testified that while serving in Okinawa, assigned to the 546th Ammunition Supply Squadron (an ammo dump), he placed pesticides and herbicides around revetments, and also sprayed growth.  He added he never heard of Agent Orange until the Vietnam War.  Of record is a photocopy of a military driver's license, issued to the Veteran in October 1957.  This license indicates that the Veteran was assigned to Kadena Air Base, with the 546th ASSD, which is in Okinawa, Japan.  

The Board acknowledges the Veteran's own assertions that his diabetes mellitus, type II, is the result of his military service, namely exposure to DDT in Okinawa, and that he is competent to give evidence about symptomatology and what he experienced in service.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge.  Such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted.  Layno v. Brown, 6 Vet. App. 465 (1994).

The Board has no reason to doubt the Veteran's credibility in terms of his assertions that he routinely used DDT during service while stationed on Okinawa.  His military driver's license is internally consistent as it is shown that he had service in Okinawa, Japan.  As such, the Board finds that the Veteran's statements regarding DDT exposure are credible and probative, and add weight to the overall claim.  See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996).

However, the Veteran is not competent to render an opinion as to the cause or etiology of his diabetes mellitus, type II, as such a matter requires medical expertise which the Veteran is not shown to possess.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).

Of record are VA outpatient treatment records, which include a July 2008 primary care note showing a diagnosis of insulin-dependent diabetes mellitus.  A January 2009 physician note notes a past medical history of peripheral neuropathy.  A September 2009 endocrinology note shows diagnoses of Type II diabetes mellitus and painful diabetes mellitus neuropathy.  An October 2009 endocrinology note shows that the endocrinologist commented that herbicides, pesticides, and Agent Orange have been associated with diabetes.  

A June 2011 VA endocrinology outpatient treatment record shows that the Veteran had Type II diabetes mellitus.  The Veteran informed the examiner that he was exposed to DDT while on Okinawa in 1957 and 1958.  The Veteran also reported that in order to counteract the exposure to crabs and other insects he sprayed himself with DDT daily for more than 13 months while in Okinawa.  The Veteran inquired as to whether such exposure to DDT could cause diabetes.  The endocrinologist informed the Veteran that a number of studies from the United States, Canada, and Sweden had found that the prevalence of "the disease" (diabetes) in a population increases with serum DDT and DDE levels.  This report/opinion was acknowledged by a staff physician, Dr. A.C.V.

In a May 2013 note VA physician, A.C.V., MD., noted that the Veteran had provided a history of herbicide exposure during his service.  The physician added that the Veteran's diabetes may as likely as not be related to his in-service herbicide exposure.  As noted, this same physician signed the above-discussed June 2011 VA endocrinology note, wherein it was reported that the Veteran had provided a history of in-service exposure to DDT.  

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not given to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The United States Court of Appeals for Veterans Claims (Court) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In Gilbert, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the Veteran prevails.  Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. 

After a careful review of the record and resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diabetes mellitus developed as a result of his being exposed to DDT while serving on active duty in Okinawa.  Accordingly, since the evidence is at least in equipoise, the benefit of the doubt doctrine is applicable and the Veteran prevails.  See Gilbert.  Therefore, service connection for Type II diabetes mellitus with associated peripheral neuropathy of the lower extremities is granted.


ORDER

Service connection for Type II diabetes mellitus with associated peripheral neuropathy of the lower extremities is granted. 



____________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs