Citation Nr: 1410132 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-44 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim. In April 2013, the Veteran presented sworn testimony during a personal hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. At hearing, the Veteran submitted additional evidence directly to the Board. He also submitted a written waiver of local consideration of the evidence, which is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2013). The December 2009 rating decision also denied the Veteran's claim of entitlement to service connection for hypertension. The RO addressed this hypertension claim in its September 2010 statement of the case (SOC). The Veteran filed a substantive appeal in October 2010; however, he specifically referenced only the issue of service connection diabetes mellitus; he did not refer to the hypertension issue. An appeal as to the hypertension claim has therefore not been perfected. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.202 (2013) (if the SOC addressed multiple issues, the substantive appeal must either indicate that all issues are being appealed or it must specifically identify the issues being appealed). Accordingly, the issue of service connection for hypertension is not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (the request for appellate review is completed by the claimant's filing of a substantive appeal after a SOC is issued by VA). FINDINGS OF FACT 1. It is at least as likely as not that the conditions of the Veteran's service involved duty or visitation in the Republic of Vietnam during the Vietnam era; hence, he is presumed to have been exposed to Agent Orange in service. 2. The Veteran is currently diagnosed with diabetes mellitus, type II. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see 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"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including diabetes mellitus, when manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In addition, 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. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(6)(iii) (2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service-connected. Those diseases include diabetes mellitus, type II. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2013). In this case, the evidence shows that the Veteran is currently diagnosed with diabetes mellitus. See, e.g., the VA treatment records dated June 2000 and September 1999. He contends that his diabetes mellitus that is related to his military service. Notably, the Veteran has not argued, nor does the record show, that his diabetes mellitus symptomatology manifested during his military service. Indeed, his available service treatment records (STRs) show no treatment for, or diagnosis of, diabetes mellitus or related complaints. Rather, as indicated above, the Veteran asserts that he was exposed to herbicides during his military service, which he believes caused the claimed diabetes mellitus. Specifically, he contends that he was exposed to Agent Orange while he was on temporary duty assignments to the Republic of Vietnam. See, e.g., the April 2013 Board hearing transcript. As indicated above, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. See 38 C.F.R. § 3.307(a)(6)(iii) (2013). "'Service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." Id. The Board notes that, although the majority of the Veteran's service personnel records have been associated with the claims file, his STRs are incomplete. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the Veteran or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The Veteran has asserted that he had four temporary duty assignments to the Republic of Vietnam during his military service. See the April 2013 Board hearing transcript, pg. 6. He stated that each of these temporary duty assignments lasted at least six days. Id. The record demonstrates that the Veteran was assigned to Patrol Squadron 22 as an aviation storekeeper. In support of his contentions, the Veteran directs the Board's attention to a January 1969 letter, which indicates that members of Patrol Squadron 22, including the Veteran, were awarded the Republic of Vietnam Campaign Medal with Device because a review of records "indicates you have been in the geographical area of Vietnam for a period of three months while Patrol Squadron 22 was deployed to the Far Eastern Pacific from June 1968 to January 1969." Of record is also a unit history of Patrol Squadron 22, which indicates that in June 1968, the squadron deployed to Naval Air Facility (NAF) Naha, Okinawa, with a detachment supported at NAF Cam Rahn Bay, Vietnam. To this end, the Board notes that the record includes the Veteran's June 1968 temporary duty assignment to NAF Naha, Okinawa, "and such other places as may be necessary." Additionally, the Veteran submitted a letter from retired U.S. Navy Senior Chief Petty Officer, M.W., who stated that based on his experience in the Navy, "when aviation squadrons deploy, part of the support detachment always included an aviation storekeeper." He continued, "[w]hile deployed, squadrons would be required to receive parts to maintain the flying status of the aircraft and the aviation storekeepers on these deployments...would be the person ordering and receiving the repair parts." The Board finds no reason to doubt the credibility of the lay testimony provided by the Veteran in support of his claim. Moreover, the associated January 1969 letter regarding the basis of the Veteran's Vietnam Campaign Medal, the Patrol Squadron 22 history, as well as, the statement of Mr. M.W., serves to corroborate the Veteran's contentions of service in the Republic of Vietnam. Thus, although the Veteran's service in Vietnam has not been confirmed by official military records, the Board accepts the lay statements and testimony as credible and, resolving reasonable doubt in favor of the Veteran, finds that the Veteran is entitled to the presumption of herbicide exposure based on service in Vietnam during the requisite time period. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102 (2013). Therefore, the Board concludes that the Veteran's diabetes mellitus is presumed to have been incurred in service. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). As such, the Veteran's claim of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is granted. ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs