Citation Nr: 1339920 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-14 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for type II diabetes mellitus, including as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. Doernberg, Associate Counsel INTRODUCTION The Veteran served on active military duty from February 1957 to February 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran has type II diabetes mellitus, which is controlled through diet. 2. The evidence reasonably establishes that the Veteran had active duty service in Vietnam. CONCLUSION OF LAW Type II diabetes mellitus is presumed to have been incurred in wartime service. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2013). As the Board is granting the claim of entitlement to service connection for type II diabetes mellitus, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Service Connection The Veteran alleges entitlement to service connection for type II diabetes mellitus, based on exposure to Agent Orange while in Vietnam. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). If a veteran was exposed to Agent Orange during active service, presumptive service connection is warranted for certain specified diseases, including type II diabetes mellitus, if the disease becomes manifest to a degree of 10 percent or more at any time after service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "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)(iii). The Board finds that the Veteran is presumed to have been exposed to Agent Orange because he had active duty in Vietnam. The Veteran's Enlisted Assignment Data Form reflects that he served aboard a ship from December 1966 to January 1968. Information from the Joint Services Records Research Center indicates that this ship arrived in Vietnam in the spring of 1966 and was engaged in establishing petroleum buoys in four Vietnamese ports. Service personnel records reflect that in January 1968, the Veteran was authorized to wear the Vietnam Service Medal and that the Veteran had 11 months and 20 days of sea duty. The Veteran submitted the lay statement of his Commanding Officer who stated that the Veteran was aboard his ship and the ship was deployed in Vietnam in the summer of 1967. He described that the ship tied up to docks in two harbors in Vietnam. The Commanding Officer further stated, "We tied up to docks in both harbors and were there for approximately two weeks." The Commanding Officer is competent to report facts he observed. 38 C.F.R. § 3.159(a)(2)(2013); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although the Commanding Officer reported a year that is different than that reflected in the records for the ship's time in Vietnam, the Board finds that his statement concerning the fact that the ship was docked in two harbors to be credible. It is consistent with other evidence and the work accomplished by the ship's crew. The evidence therefore establishes that the Veteran was docked in Vietnam for at least two weeks. It is reasonable to conclude that during this time, the Veteran would have set foot on land. See Haas v. Peak, 525 F.3d 1168, 1193 (Fed. Cir. 2008). The Board finds that the first element is met. The Veteran had active service in the Republic of Vietnam. The Veteran is presumed to have been exposed to Agent Orange and there is no evidence that he was not exposed to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Second, the Board finds that the Veteran has diabetes that has become manifest to a degree of 10 percent or more. VA treatment records reflect that the Veteran was diagnosed with type II diabetes mellitus 11.2 years prior to a March 2010 treatment record. A July 2010 statement from the Veteran's VA treating provider indicates that the Veteran was diagnosed with type II diabetes mellitus that is manageable by restricted diet. Therefore, the evidence also demonstrates that type II diabetes mellitus became manifest to a degree of 10 percent or more following service. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013) (a 10 percent rating is assigned for type II diabetes mellitus controlled only by restricted diet). Based on the foregoing, the Board finds that service connection for type II diabetes mellitus is warranted. ORDER Service connection for type II diabetes mellitus is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs