Citation Nr: 1617795	
Decision Date: 05/03/16    Archive Date: 05/13/16

DOCKET NO.  12-34 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides in service.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Anderson, Associate Counsel






INTRODUCTION

The Veteran had active military service from December 1967 to July 1969.  

This matter comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

The Veteran testified at a hearing before the Board in July 2014.  A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, during the hearing, the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life and his occupation.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2).

This claim was before the Board in January 2015, and remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim.  The requested development has been completed and the matter is ready for review.  Stegall v. West, 11 Vet. App. 268   (1998).


FINDINGS OF FACT

1. The evidence of record is in equipoise as to whether the Veteran served along Demilitarized Zone (DMZ) from March 1968 to April 1969, while he was stationed in Korea during the Vietnam War. 

2. The Veteran is presumed to have been exposed to herbicides during service in Korea when working along the DMZ while at Camp Casey. 

3. The Veteran's diabetes mellitus is etiologically related to his active military service.

CONCLUSION OF LAW

Affording the Veteran the benefit of the doubt, the criteria for service connection for diabetes mellitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran has asserted entitlement to service connection for diabetes mellitus.  Specifically, he claims that he was exposed to herbicides in service while he was stationed in Korea during the Vietnam War.  After careful consideration of the evidence of record, the Board finds that service connection is warranted.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (1) competent and credible 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) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Further, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  As the Veteran's diagnosed diabetes mellitus is listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply in this case.

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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

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 service.  38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015).  "Service in the Republic of Vietnam" includes service in the waters offshore ("brown water") and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  See 38 C.F.R. §§ 3.307(a)(6)(iii). 

Furthermore, 38 C.F.R. § 3.307(a)(6)(iv) states that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. 

Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6); 3.309(e).  The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina], all chronic B-cell leukemias (including but not limited to hairy cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas.

Claims based on Agent Orange exposure are unique in that entitlement is based on an analysis of scientific evidence, ordered by statute.  38 U.S.C.A. § 1116(b).  The Agent Orange Act of 1991 (in part) directed the Secretary of Veteran Affairs to enter into an agreement with the National Academy of Science (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. 

Whenever the Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease.  If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination.  The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary.  See 38 U.S.C.A. § 1116(b)-(c).  The Secretary has reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted.  See 75 Fed. Reg. 32,540 (June 8, 2010).  Based on the NAS committee report, Veterans and Agent Orange: Update 2008, the Secretary added additional disorders to the list of those for which the presumption of service connection is available.  See 75 Fed. Reg. 52,303 (Aug. 31, 2010).  Additional amendments have been enacted and public notices provided based on Veterans and Agent Orange: Update 2010.  See 75 Fed. Reg. 81,332 (Dec. 27, 2010); 77 Fed. Reg. 47,924 (Aug. 10, 2012); 78 Fed. Reg. 54,763 (Sept. 6, 2013).

The Board finds that the Veteran has been diagnosed with diabetes mellitus since approximately 2001, as reflected by a VA examination and the Veteran's hearing testimony.  Specifically, a December 2008 VA examination affirmed the Veterans diagnosis of type 2 diabetes mellitus.  

Given the Veteran's current diagnosis of diabetes mellitus, the Board next addresses his primary contention that he was exposed to herbicides while serving in Korea when he entered the DMZ on several occasions.  

The Veteran's personnel records show that the Veteran served in Korea from May 1968 to July 1969 and he received the National Defense Service medal.  His military occupational specialty was as a Military Policeman with the 7th Military Police Company 7th Infantry Division.  The Veteran submitted several statements in support of his claim noting that he worked along the DMZ while he was stationed in Korea.  Specifically, he claims that while stationed at Camp Casey he had to leave the base and escort personnel to the DMZ.  He specifically states that he often had to visit the 2nd Infantry Division, which has been identified by the Secretary of Defense as a specific unit that was assigned or rotated to areas near the DMZ where herbicides were used between April 1968 and August 1971.  The Veteran also submitted a "Buddy Statement" from JK to support his claim, and JK states that he served with the Veteran in Korea in 1969 in the 7th Military Police Company 7th Infantry Division.  JK states that he and the Veteran, were both stationed at Camp Casey together, often rode together while on patrol, and made numerous trips to the 2nd Infantry division, which patrolled the DMZ, and to Panmunjom located on the DMZ.  

The RO submitted a request for information to the Department of Defense to verify his service in Korea.  It was determined that the Veteran's unit was located at Camp Casey, South Korea, approximately 10 miles from the DMZ.  However, the records did not indicate any specific histories of members of the 7th Military Police Company performing any specific duties along the DMZ.  

The Board acknowledges that the Veteran was not part of those units specifically determined to have operated in or near the DMZ.  However, when considering the Veteran's MOS as a Military Policeman, his unit's proximity to the DMZ at Camp Casey, the statements supporting his claim from JK and the lack of evidence provided by the Department of Defense contradicting the Veteran's claims, there is sufficient evidence in the Veteran's favor that he was exposed to herbicides during his time in Korea during the Vietnam War.  Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."); Jackson v. Virginia, 443 U.S. 307, 319 (1979) (it is the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts).

Accordingly, the Veteran is presumed to have been exposed to herbicides.  As diabetes mellitus qualifies for presumptive service connection for herbicide exposure, and resolving all doubt in favor of the Veteran, entitlement service connection on a presumptive basis is warranted.

Duties to Notify and Assist 

Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014)).  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).







ORDER

Service connection for diabetes mellitus is granted. 



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs