Citation Nr: 1535530 Decision Date: 08/19/15 Archive Date: 08/31/15 DOCKET NO. 08-22 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure. 2. Whether new and material evidence has been sufficient to reopen a claim for entitlement to service connection for a herniated disc of the low back. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. R. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2012, the Veteran presented sworn testimony during a personal hearing in Washington D.C., which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a May 2012 Board decision, the claim was reopened and remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a May 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The Veteran's Virtual VA and VBMS files were reviewed in connection with this decision. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of whether new and material evidence has been sufficient to reopen a claim for entitlement to service connection for a herniated disc of the low back is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in Thailand at the Takhli Royal Thai Air Force Base and credible evidence reflects his presence at the perimeter of the Base. 2. The Veteran was exposed to herbicides during his service in Thailand during the Vietnam era. 3. The Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus type II, presumptively due to herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A (2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). The VCAA is not applicable where further assistance would not aid the appellant 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 decision, which constitutes a full grant of the benefit sought on appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Service Connection - Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). The law provides that a Veteran who served in the Republic of Vietnam during the period from January 9, 1962 to 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). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, certain diseases, including diabetes mellitus, type 2 shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. With regard claims based on herbicide exposure in Thailand, instructions contained in VBA Fast Letter 09-20 (May 6, 2009), were to associate the Department of Defense response document (Memorandum for the Record) outlining herbicide use in Thailand during the Vietnam Era. Information concerning the Veteran's claimed exposure to herbicides in Thailand was then to be forwarded to the Joint Services Records Research Center (JSRRC) along with a request for all evidence of exposure to either tactical or commercial herbicides in accordance with 38 C.F.R. § 3.159. This fast letter was rescinded in May 2013; the provisions contained therein were included in the VA Adjudication Manual instructions below. In May 2010, VA published a 'Compensation & Pension (C&P) Service Bulletin' which establishes 'New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea.' In explaining the need for the new procedures, the bulletin noted that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. VA determined that a special consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. It was noted that the majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. It was also noted that 'if a US Air Force Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicides exposure should be acknowledged on a facts found or direct basis. This applies only during the Vietnam era, from February 28, 1961 to May 7, 1975.' May 2010 C&P Service Bulletin; see also VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. If service near the perimeter of a RTAFB during the Vietnam War Era could not be determined, further development was to be completed consistent with the provisions originally set out in VBA Fast Letter 09-20. Once exposure to herbicides has been shown by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence'). In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic (Virtual VA or VBMS) portion of the file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and analysis At his hearing, the Veteran contended that while on active duty he was stationed at Takhli RTAFB and received treatment at Korat RTAFB. He also contended that he was present in Vietnam while taking flights to various placed during his active duty. Based on a review of the evidence of record, the Board finds that service connection for diabetes mellitus type II is warranted. As an initial matter, VA treatment records in August and October 2014 and January 2015 reflect that the Veteran was being treated for diabetes mellitus. Thus, the pertinent question is whether the Veteran was, in fact, exposed to herbicides during service. The Veteran served in Thailand for the period of December 22, 1967 to December 15, 1968 with the 355 CSG at Takhli Air Force Base as an Administrative Specialist and as a Correspondence Management Clerk. In a June 2010 statement, he indicated that his responsibilities included routing and distributing classified material around the base at Takhli RTAFB and other locations in Thailand and Vietnam. In a statement submitted in July 2012, the Veteran contended that he was an Administrative Specialist with the highest security clearance, and his duties involved the securing of government and military classified property, the operation of classified administrative equipment information management, and the operation of various types of motor vehicles in or around every location at Takhli RTAFB. His living quarters (hutch) were shared with Air Force Security Police, and in the performance of my duties, he was sometimes required to perform guard duty of the base to load and off-load heavy barrel containers from incoming air deliveries and deliver to the points of destination. During his February 2012 hearing, the Veteran testified that, while he was stationed at the Royal Thai Air Force Base in Takhli he was near the perimeter of the case on a daily basis, delivering classified materials from one station to the other. The Board notes that this case was remanded for development consistent with Fast Letter 09-20, which has since been rescinded. The development included obtaining the Unit history obtaining a review of these records by the Air Force Historical Research Agency. An Archivist from the agency responded, in a February 2015 email, that the Veteran's claim was unfounded, since there was never ever any use of or storage of Agent Orange at any of the USAF installations in Thailand at any time. He noted that the Unit History reflected all the mentions of vegetation control at Takhli from October 1967 through March 1969, and determined that, based on the entries into the Unit History, commercial grade herbicides were not used, although the planning for their eventual use was in the works. He reported that the use of commercial grade herbicides along the perimeter fence at Takhli would not occur until April of 1972, but did not provide any information as to how he came to his conclusion. He found that the awards noted for the Veteran were the result of his unit, the 355th Tactical Fighter Wing, being an active participant in the Vietnam War, although all of their activities originated from Thailand. By supporting the war by flying missions into Laos, Cambodia, North and South Vietnam, they aided immeasurably to the USAF efforts in that conflict and were thereby recognized by these awards. There is no mention in any of their histories of sending Administration Specialists to Vietnam. However, the Board noted that these findings do not preclude the possibility that commercial grade herbicides were used at Takhli RTAFB while the Veteran was stationed there, or that the Veteran had presence in Vietnam while discharging his duties, or as a stopover in his travels throughout the region. This evidence is not conclusive. As noted above, the VA has adopted specific procedures to determine whether a Veteran was exposed to herbicides in Thailand during the Vietnam era. VA's Adjudication Procedures Manual, M21-1MR, directs that special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of certain military bases in Thailand, including the Royal Thai Air Force Base at Takhli. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). The United States Court of Appeals for Veterans Claims (Court) has consistently held that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1, are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). The Board finds that although there is no record of assignment to perimeter duty, the Veteran's consistent assertions regarding time spent near the perimeter of the Royal Thai Air Force Base in Takhli to be credible. Therefore, in view of the aforementioned guidance from the M21-1 MR, the Board finds that the Veteran was exposed to herbicide agents while he was stationed at the Royal Thai Air Force Base in Takhli during the Vietnam era. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). In addition, while the Veteran's records do not reflect his presence in Vietnam, he has provided credible evidence that he was present in Vietnam during his active duty. As previously noted, the post-service medical evidence shows that the Veteran has diabetes mellitus type II, which is listed as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). There is no affirmative evidence showing that the Veteran's diabetes was not caused by herbicide exposure. The evidence of a current diagnosis of diabetes, coupled with the Veteran's in-service herbicide exposure, satisfies the presumptive service-connection criteria of 38 C.F.R. § 3.309(e). Therefore, the Board concludes that service connection for diabetes mellitus type II is warranted. ORDER Service connection for diabetes mellitus, type II, is granted. REMAND By rating decision dated in February 2014, the RO determined that no new and material evidence had been submitted to reopen the claim for entitlement to service connection for a herniated disc of the low back remains denied because the evidence submitted is not new and material. The following month, the Veteran submitted a notice of disagreement to this decision. As noted below, a statement of the case must be issued in response to this notice of disagreement. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Regarding the issue of whether new and material evidence has been presented in order to reopen a claim for entitlement to service connection for a herniated disc of the low back, the AOJ should issue a statement of the case (SOC) to the Veteran and his representative. If, and only if, the Veteran files a timely substantive appeal should these issues be returned to the Board. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. 238. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs