Citation Nr: 1621886 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 10-08 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at hearing before the undersigned Veterans Law Judge in August 2010. The hearing transcript has been associated with the claims file. In December 2011, the Board requested a medical expert opinion through the Veterans Health Administration (VHA). A response was received in February 2012. Further, in June 2012 and December 2014, the matter was remanded for additional development. FINDINGS OF FACT 1. The Veteran served aboard the USS Newport News (CA-148) [Heavy Cruiser] and is presumed to have been exposed to herbicides as the USS Newport News operated in the official waters of the Republic of Vietnam from October 1967 to April 1968, including on Song Huong Estuary during February 1968. 2. The Veteran's type II diabetes mellitus is presumed due to his in-service herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Given the favorable disposition, no discussion of the duties to notify and assist is warranted. The Veteran contends that he currently suffers from diabetes mellitus, type II, as a result of his in-service exposure to herbicides. He contends that he was exposed to herbicides while serving aboard the USS Newport News. 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; 38 C.F.R. § 3.303(a). Pertinent to this claim, presumptive service connection is warranted for type II diabetes mellitus when herbicide exposure during service has been established. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). VA regulations provide that 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 C.F.R. § 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. 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 U.S.C.A. § 101(29)(A); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2015); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). Notably, the Veterans Benefits Administration (VBA) has historically extended the herbicide presumption to naval ships which entered Vietnam's inland waterways or those which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships). See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b. Significantly, in April 2015, the United States Court of Appeals for Veterans Claims, in addressing a claim for presumptive service connection based on herbicide exposure while that veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore, rather than an inland, waterway, was inconsistent with the identified purpose of the statute and regulation: providing compensation to veterans based on the likelihood of exposure to herbicides. Gray v. McDonald, 27 Vet. App. 313, 326 (2015). As a result of the Gray decision, the VBA revised its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated May 5, 2016). http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm. The VBA now recognizes that the USS Newport News (CA-148) [Heavy Cruiser] operated on Song Huong Estuary during February 1968. The available personnel records reflect that the Veteran served aboard the USS Newport News from October 1967 to April 1968. The guidance set forth by VBA in this list specifically extends the herbicide presumption to this Veteran. Thus, the Board finds that the Veteran served aboard the USS Newport News (CA-148) from October 1967 to April 1968, and is presumed to have been exposed to herbicides as the USS Newport News is known to have operated on Song Huong Estuary during February 1968. Accordingly, the Veteran's type II diabetes mellitus is presumed due to his in-service herbicide exposure pursuant to 38 C.F.R. § 3.309(e). Thus, service connection for type II diabetes mellitus is granted. ORDER Service connection for type II diabetes mellitus is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs