Citation Nr: 1542927 Decision Date: 10/06/15 Archive Date: 10/13/15 DOCKET NO. 14-13 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for diabetes mellitus due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to July 1968, and from July 1969 to June 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Detroit, Michigan. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of the appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's duties at the Takhli Royal Thai Air Force Base during the Vietnam era took him at or near the base perimeter, and herbicide exposure is accepted on a facts found basis. 2. The Veteran has diabetes mellitus. 3. The Veteran has coronary artery disease. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus is presumed. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 2. Service connection for coronary artery disease is presumed. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claims of entitlement to service connection for diabetes mellitus and coronary artery disease are granted, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claims is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted 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) (2015). To establish service connection, the evidence generally must show: "(1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the case of veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides presumptive service connection for certain listed diseases, including diabetes mellitus and coronary artery disease. Presumptive herbicide exposure is generally provided for veterans 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." 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). Recently in June 2015, VA amended its regulations to extend the presumption of herbicide exposure to individuals who served in the Air Force and Air Force Reserves during the Vietnam era, and who worked with C-123 aircraft assigned to their unit that are "known" to have been used to spray herbicides. See 38 C.F.R. § 3.307(a)(6)(v). With regard to which C-123 aircraft were "known" to have been used to spray an herbicide agent, the interim final rule published in the Federal Register explained that the amended regulation is based on an Institute of Medicine (IOM) report that identified the specific Air Force and Air Force Reserve units that were assigned C-123 aircraft known to have been used to spray herbicides in Vietnam. See 80 Fed. Reg. 35246-01 (June 19, 2015). VA published online the list of units and locations identified by the IOM report, which list is referenced by the M21-1, IV.ii.1.H.3.a. See http://www.benefits.va.gov/compensation/docs/ AO_C123_AFSpecialityCodesUnits.pdf. "Service members who are not entitled to the presumption of [herbicide] exposure are nonetheless entitled to show that they were actually exposed to herbicides." Haas v. Peake, 525 F.3d 1168, 1193 (Fed. Cir. 2008) (citing 38 C.F.R. § 3.309(e)). The Veteran served on active duty in the Air Force from June 1966 to July 1968, and from July 1969 to June 1973. He claims entitlement to service connection for diabetes mellitus and coronary artery disease due to herbicide exposure during his service at the Takhli Royal Thai Air Force Base (RTAFB) in Thailand. He concedes he had no Vietnam service. As an initial matter, the an April 2012 VA examination report reflects diagnosed diabetes mellitus and coronary artery disease. Therefore, the Veteran clearly has current diabetes mellitus and coronary artery disease disabilities. The Board will now address whether herbicide exposure may be presumed or whether it is otherwise shown. The Veteran's personnel records reflect that he had temporary duty in Thailand beginning in March 1968 for 252 days. Consistent with the Veteran's reported service at Takhli, a November 1968 service medical record was stamped as prepared at Takhli. The Veteran's occupational specialty during his service in Thailand was an F-111 aircraft mechanic. In April 1968, he was promoted to sergeant. The Veteran concedes he had no Vietnam service. See DD Form 214. Therefore, there can be no presumptive herbicide exposure based on Vietnam service under 38 C.F.R. § 3.307(a)(6)(iii). Also, the Veteran's Air Force unit and base location are not among those listed as having been assigned a C-123 aircraft known to have been used to spray herbicides during the Vietnam era. Therefore, herbicide exposure may not be presumed based on newly amended 38 C.F.R. § 3.307(a)(6)(v). In May 2010, VA published a Compensation & Pension (C&P) Service Bulletin that established "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." In explaining the need for the new procedures, the bulletin acknowledged 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. The M21-1MR, IV.ii.2.C.10.q., provides that the Compensation Service has determined that special consideration of herbicide exposure on a facts found basis should be extended to veterans whose duties placed them on or near the perimeter of certain bases in Thailand. The M21-1MR directs that herbicide exposure be "conceded" on a facts-found basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including Takhli, and if the veteran served as a security policeman or security patrol dog handler, or if there was otherwise credible evidence that his duties took him or her on or near the base perimeter. However, in August 2015, the above M21-1MR manual provisions relating to claimed herbicide exposure in Thailand were rescinded and replaced with new M21-1 provisions. New M21-1, IV.ii.1.H.5.a, provides that "the presumption of exposure to herbicides determined on a factual basis for service in Thailand only extends to veterans who served at one of the U.S. Air Force bases listed in M21-1, IV.ii,1.H.5.b, and in the capacity of a dog handler or security personnel." The new manual provisions further provide for conceding herbicide exposure on a facts-found basis if a veteran was involved with fenced-in perimeter security duty. See M21-1, IV.ii.1.H.5.b. "[E]xposure to herbicides [can otherwise] be acknowledged on a direct or facts-found basis." See id. Thus, the provision providing for conceding herbicide exposure for those whose duties were otherwise on or near the base perimeter was removed. The Board's inquiry, therefore, is whether the Veteran can be found on the basis of the facts of record, to have been exposed to herbicides. In that regard, the Board acknowledges the Veteran's statements that while stationed at Takhli, his screened bunker was located at the perimeter of the base, and that his job duties involved working on aircraft located along the perimeter, including aircraft in temporary hangars along the perimeter. Regarding the credibility of those statements, the Board notes that there is no evidence in the claims file that contradicts the statements made by the Veteran, and his reports are internally consistent. In addition, the Board acknowledges that a map of the Takhli AFB shows the flight line by the perimeter of the base, temporary housing by the perimeter of the base, and NCO housing by the perimeter. Based thereon, the Board finds the Veteran's lay statements to be credible, and herbicide exposure is conceded. The Board adds as an aside that the April 2012 VA examiner cited information still available on the VA Public Health website that provides that veterans whose service involved duty on or near the perimeters of Takhli RTAFB during the Vietnam era may have been exposed to herbicides, the examiner noted that the Veteran reported his duties were on the perimeter, and opined that his diabetes mellitus and coronary artery disease are therefore at least as likely as not related to herbicide exposure in service. See http://www.publichealth.va.gov/exposures/agentorange/ locations/thailand.asp. In light of the fact that herbicide exposure is found and the Veteran has diagnosed diabetes mellitus and coronary artery disease, which diseases are both among those listed in 38 C.F.R. § 3.309(e), service connection will be presumed for diabetes mellitus and coronary artery disease, and the Board will grant both claims. ORDER Entitlement to service connection for diabetes mellitus due to herbicide exposure is granted. Entitlement to service connection for coronary artery disease due to herbicide exposure is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs