Citation Nr: 1615800 Decision Date: 04/19/16 Archive Date: 04/26/16 DOCKET NO. 11-14 941A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to May 1975, and from May 1979 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was previously before the Board in August 2014, when it was remanded for a Board videoconference hearing pursuant to the Veteran's request in his June 2011 VA Form 9. Since that time, the Veteran, through his attorney, withdrew his request for a hearing in letters dated in December 2013, October 2014, and March 2015. Accordingly, the Board considers the Veteran's request for a Board hearing withdrawn, and the Board's prior remand directives have been satisfied to the extent possible. See 38 C.F.R. § 20.704(e) (2015); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Benefits Management System contains a February 2013 statement from the Veteran; December 2013 submissions from the Veteran's attorney, including a brief and a transcription of histories for the Pacific Communications Area; October 2014 and March 2014 letters withdrawing the Veteran's hearing request; an October 2015 letter requesting a 90-day extension; a November 2015 letter from the Board granting the extension request; and a December 2015 letter from the Veteran's attorney. All other electronic documents are either duplicative of documents contained in the paper claims files or not pertinent to this appeal. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran had service in Vietnam during the Vietnam era, and he is presumed to have been exposed to herbicides during such service. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran was exposed to herbicides during his service in Thailand, to include his service at the Korat Royal Thai Air Force Base (Korat Air Base). 3. The Veteran's current diabetes mellitus, type II, is presumed to be causally and etiologically related to in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have been met. See 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, due to exposure to herbicides in the Republic of Vietnam and/or Thailand during the Vietnam era. As an initial matter, because the Board is granting the benefit sought on appeal, the VA's duties to notify and to assist are deemed fully satisfied, and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Legal Criteria In general, to establish entitlement to service connection, a veteran must show: (1) the existence of a present disability; (2) the 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including diabetes mellitus, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). For the purposes of 38 C.F.R. § 3.307, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6). The Board notes that Agent Orange is generally considered an herbicide agent and will be considered as such in this decision. "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. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. The VA has also established procedures for verifying exposure to herbicides in Thailand during the Vietnam era. See generally VBA Manual M21-1, IV.ii.1.H.5. The VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand that was intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Thus, special consideration of herbicide exposure should be extended to those veterans whose duties placed them on or near the perimeters of military bases in Thailand, as this would allow for presumptive service connection of the diseases associated with herbicide exposure. See VBA Manual M21-1, IV.ii.1.H.5.a. 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. See VBA Manual M21-1, IV.ii.1.H.5.b. If a veteran served on one of these air bases during the Vietnam era as a security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a direct or facts-found basis. See id. Determinations regarding service connection are based on a review of all of the evidence in the record. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). When considering evidence and determining its probative value, the VA considers both the competency and the credibility of the witness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (providing that lay evidence is competent if it is limited to matters that the witness has actually observed and that are within the realm of the witness's personal knowledge). Factual Background and Analysis A review of the Veteran's service treatment records shows no findings of diabetes mellitus or symptoms related to diabetes mellitus. As set forth in a letter from the Veteran's private physician dated in June 2008, the Veteran was diagnosed with diabetes mellitus in 2000, for which the Veteran is receiving treatment. In an April 2009 statement, the Veteran provided that he was placed on insulin in January 2007, that he monitors his fasting blood sugar on a daily basis, and that he performs quarterly hemoglobin A1c tests. The Veteran's primary military occupational specialties, as set forth in a DD Form 2014, were Maintenance Analysis Support and Ground Radio Communications Technician. The Veteran was awarded the Vietnam Service Medal, Republic of Vietnam Gallantry Cross, and Republic of Vietnam Campaign Medal. The Veteran's personnel and service treatment records contain no evidence of service or visitation in the Republic of Vietnam. However, the Veteran's personnel records reflect that he was in Thailand from January 1972 to February 1973, and from July 1974 to July 1975. The Veteran's service treatment records encompassing these dates show treatment at the Korat and Udorn Air Bases. According to a performance evaluation report dated in January 1973, the Veteran was assigned to the 483rd Electronics Installation Squadron (483rd Squadron) at the Korat Air Base from January 1972 to January 1973. The report notes that the Veteran established and maintained working relationships "throughout Southeast Asia." As set forth in the Veteran's October 2009 notice of disagreement, the 483rd Squadron assumed responsibility for electronics maintenance and installation throughout South Vietnam and Thailand. The Veteran detailed that during his assignment with the 483rd Squadron, he was posted to temporary duty with the 1964th Communications Group in Tan Son Nuit, Saigon in September 1972 to install a radio and antenna system at the Ben Hoa military station. The Veteran also reported that from November 1972 to January 1973, he was posted to temporary duty with the 1964th Communications Group to install secure radio communications at the MACV Headquarters in Saigon. In addition to claiming service in the Republic of Vietnam, in a June 2011 VA Form 9, the Veteran has asserted that when he was on assignment at the Korat Air Base, his duties involved going out to the perimeter of the base to perform maintenance on communications equipment and telephone lines. To support of his contention that he had service in the Republic of Vietnam, and to further demonstrate his duties while assigned to the 483rd Squadron and 1964th Communications Group, the Veteran submitted a report entitled "History of 483 Electronics Squadron (AFCS) Korat Royal Thai Airforce Base, Thailand." This report was approved by a U.S. Air Force Commander of the Pacific Communications Area Air Force Communications Service. According to the report, the 483rd Squadron's duties between April 1972 and June 1972 included extensive rehabilitation of an air traffic control tower and installation of a transceiver site for the Vietnam Air Force, in addition to an installation of the first instrument landing system at the U-Tapao Royal Thai Air Force Base. The report documents the Veteran's squadron being deployed to Son Tra, Vietnam; Udorn, Thailand; Korat, Thailand; and Takhli, Thailand. The report notes that the 483rd Squadron was the only electronic installation squadron in Southeast Asia and that it had been "tasked to the extremes, both in Vietnam under extreme hostile conditions, and in the build up in Thailand resulting from the Communist North Vietnam invasion of South Vietnam." In December 2013, the Veteran submitted a transcript of histories for the Pacific Communications Area, including the 1964th Communications Group and the 483rd Squadron. This document provides that from June 1972 to June 1973, the 483rd Squadron accomplished 220 installations, 51 of which were accomplished in the Republic of Vietnam. The document also notes that on many occasions, personnel were subjected to extremely hazardous conditions in both the Republic of Vietnam and Thailand. Resolving doubt in the Veteran's favor, the Board finds that the evidence of record establishes herbicide exposure in the Republic of Vietnam and Thailand during the Vietnam era. The Veteran is competent to report his military history, and the Board finds no reason to doubt the Veteran's contention that he served in the Republic of Vietnam, particularly given the documents noted above, which demonstrate that the 483rd Squadron and 1964th Communications Group performed duties throughout Vietnam during the time that the Veteran was assigned to these units. Thus, despite the lack of personnel or service treatment records verifying service in, or visitation to, the Republic Vietnam, the evidence indicates that the Veteran served in the Republic of Vietnam during the Vietnam era. Accordingly, he is presumed to have been exposed to an herbicide agent during such service. See 38 C.F.R. § 3.307(a)(6)(iii). Additionally, given the Veteran's MOS, his assertion that he performed maintenance on communications equipment and telephone lines at the perimeter of the Korat Air Base, and the duties of the 483rd Squadron and 1964th Communications Group, the record indicates that the Veteran served near the perimeter of the Korat Air Base. Accordingly, the record also establishes herbicide exposure in Thailand on a factual basis. The Veteran was exposed to herbicides during active service, and as noted above, he has a current diagnosis of diabetes mellitus. Moreover, as the record establishes that the Veteran's diabetes mellitus requires insulin injections and daily monitoring of fasting blood sugar, the manifestation of his disability is consistent with at least a 10 percent evaluation under the appropriate diagnostic code. See 38 C.F.R. § 4.119, Diagnostic Code 7913. As a result, service connection for diabetes mellitus is warranted on a presumptive basis. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). ORDER Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs