Citation Nr: 1335620 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-23 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as secondary to in-service herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of December 2009 of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for diabetes. On his June 2010 substantive appeal, the Veteran requested a Board hearing in Washington, D.C. In July 2011, the Veteran withdrew his hearing request. In December 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to service connection for residuals of a stroke (claimed as secondary to diabetes) and for entitlement to service connection for a disease characterized by lack of endurance, fatigue, muscle weakness, and other symptoms (to include as due to an undiagnosed illness) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran currently suffers from diabetes. 2. The Veteran set foot in the Republic of Vietnam between 1962 and 1975. CONCLUSION OF LAW The criteria for service connection for diabetes have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Entitlement to Service Connection for Diabetes Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted for specific diseases associated with exposure to herbicide agents, including diabetes. 38 C.F.R. § 3.309(e). These diseases will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service. 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an 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(f); 38 C.F.R. § 3.307(a)(6). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1377. 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, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran is currently diagnosed as suffering from diabetes. Both private and VA treatment records reflect that he suffers from this condition. Though the Veteran contends that he showed signs of suffering from this condition at the end of his active service, this claim ultimately turns on the question of whether the Veteran is entitled to the herbicide exposure presumption based on his claimed service in Vietnam. The Veteran has consistently maintained that he set foot in the Republic of Vietnam during his active service. On the Veteran's March 2007 claim, he contended that he served in Vietnam and that he was exposed to Agent Orange. In an April 2007 letter, the Veteran stated that during the early 1970s, he was stationed in Guam and that he had temporary duty across Southeast Asia, including Vietnam. He stated that he was an administrative specialist, and that he formatted messages and typed correspondence for both officers and non-commissioned officers. He reiterated these contentions in numerous other letters to VA. The Veteran offered his most expansive explanation regarding his claimed service in Vietnam in a May 2009 letter. In that letter, the Veteran stated that, though he was stationed in Guam, he had a blanket temporary duty status order to proceed to and return from locations in Vietnam, Japan, and Thailand. He stated that he supported specific operations in the Republic of Vietnam, including Operation Arc Light and Operation Bullet Shot. He stated that he had various duties, including the coordination of bombing efforts to field units. He stated that his trips had durations of 10-20 days with 5-10 of those days in Vietnam. He stated that he made more than 10 trips to Vietnam during this time. Though the Veteran's service personnel records do not confirm that he served in Vietnam, these records are sparse at best, especially considering the Veteran's long career in the Air Force. The Veteran did submit a February 1971 special order (an order that was not included among his service personnel records) detailing that he had a blanket temporary duty allowance from February 1971 through June 1971. His DD-214 also reflects that he was awarded the Vietnam Service Medal and the Republic of Vietnam Gallantry Cross with palm. Though the Veteran's service in Vietnam has not been directly corroborated by his service personnel records, the Board finds his statements to be credible. The Veteran has consistently maintained that he had temporary duty in the Republic of Vietnam, and he has described his duty with a degree of specificity. Resolving all reasonable doubt in his favor, the Board concludes that the Veteran did indeed serve in the Republic of Vietnam during his active service. As the Veteran served in Vietnam during the presumptive period, he is presumed to have been exposed to herbicides. Presumptive service connection is accorded for diabetes for a Veteran exposed to herbicides. Accordingly, service connection for diabetes is warranted. ORDER Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs