Citation Nr: 1635457 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 13-09 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to in-service exposure to herbicides. 2. Entitlement to service connection for bilateral knee disabilities. REPRESENTATION The Veteran represented by: Robert W. Legg, Attorney at Law ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2011 and January 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. . In April 2015, the Board reopened and remanded the previously denied claim of entitlement to service connection for bilateral knee disabilities, and denied the Veteran's claim seeking service connection for type II diabetes mellitus. The Board also reopened and granted service connection for degenerative joint disease of the left and right shoulders, and the left and right hands. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) with regard to the Veteran's claim seeking service connection for type II diabetes mellitus. In December 2015, the parties to this appeal entered into a Joint Motion for Partial for Remand (Joint Motion) wherein they agreed that the Board's April 2015 denial of this claim should be vacated, as the Board offered inadequate reasons and bases for this denial. Later that month, the Court issued an Order granting the Joint Motion, and this claim has now been returned to the Board for compliance therewith. With regard to the reopened service connection claim for bilateral knee disabilities, the RO undertook the requested development and recertified the claim for further appellate review in July 2016. However, as further development is required, this issue 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 is currently diagnosed with type II diabetes mellitus. 2. The Veteran's duties while serving in Thailand during the Vietnam era required his presence near the perimeters of the air base on which he was stationed, and herbicides were used to defoliate the air base perimeters during the Veteran's period of service. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, a veteran 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Type II diabetes mellitus is listed among the diseases presumed to be associated with herbicides exposure (such as to Agent Orange), and the Veteran is currently diagnosed with type II diabetes mellitus (hereinafter diabetes mellitus). 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.309(e) (2015). As the Veteran does not contend that his diabetes mellitus developed during or soon after service, the disposition of this appeal turns on whether his currently diagnosed diabetes mellitus may be linked to established in-service exposure to herbicides during his service in Thailand during the Vietnam era. If so, service connection may be granted on the basis that his diagnosed diabetes mellitus may be presumed to be the result of that in-service herbicide exposure, pursuant to 38 C.F.R. §§ 3.307 and 3.309. The Veteran reports that he served in Thailand from May 1965 to May 1966 with the 561st Engineer Company and that during this period of service, he performed construction at the U.S. Army's Camp Friendship, which is located in Korat, Thailand. (He also was assigned to Camp Ruam Chit Chai in Thailand.) The Veteran's service personnel records confirm his service in Thailand during the Vietnam era and reflect that his official military occupational specialty was "IS Radio Operator," albeit the Veteran's training for a particular specialty does not belie his reports of engaging in other tasks during service. In this case, VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (version in effect when the Veteran filed his claim). VA has determined 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 as evidenced in a declassified report entitled, "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis is extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases-i.e., allowing for presumptive service connection of the diseases associated with herbicide exposure. 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. If a 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 herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). In April 2013, the Veteran submitted unit histories for the 561st Engineer Company in Thailand for the years 1965 and 1966. The unit histories reflect that construction was performed at Camp Friendship and at Camp Ruam Chit Chai; and that Camp Friendship was located in Korat. Moreover, the declassified report referenced above also noted the extent of vegetation specifically inside the base perimeters in the early days of construction, when an airfield was carved out of virgin jungle and cleared; and that heavy use of herbicides kept the growth under control in the fenced areas; and that Camp Friendship bordered Korat on a section of the base perimeter. In submitted statements, the Veteran has reported that his construction duties while stationed at Camp Friendship required his presence near the Korat air base perimeters. Given that official records establish the use of herbicides on the perimeters of the Korat air base; given that the declassified service records establish that Camp Friendship was located near the Korat air base perimeter; given that the Veteran's service records establish that he was stationed at Camp Friendship, whose mission involved various construction projects for troop support; and given the Veteran's competent and credible (uncontroverted) report of his presence on the Korat air base perimeter while performing such construction duties; the Board concludes that the evidence of record is sufficient to establish the Veteran's exposure to herbicides during his Vietnam era service in Thailand on a facts-found basis. This finding addresses the substance set forth in the December 2015 Joint Motion. As the Veteran's in-service exposure to herbicides has been established, service connection for his currently diagnosed type II diabetes mellitus, as presumptively due to this in-service exposure, is warranted. This is so because there is no affirmative evidence to the contrary and it appears that the type II diabetes mellitus has manifested to at least a compensable degree. ORDER Service connection for type II diabetes mellitus is granted. REMAND When remanding the Veteran's claim seeking service connection for bilateral knee disabilities in April 2015, the Board instructed the RO to obtain specific medical opinions addressing whether the Veteran's knee disabilities preexisted service, and if so, were aggravated therein. However, the medical opinion rendered in November 2015 only addresses whether the Veteran's knee disabilities were incurred during service, altogether failing to state whether any knee disabilities preexisted service and were aggravated during service. Accordingly, the claim must be remanded to obtain the requested medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, this issue is REMANDED for the following actions: 1. Provide the Veteran's claims file to an appropriate medical professional for review and request that he or she address the following (the Veteran need not be reexamined unless deemed necessary to render the requested opinions): (a) Whether the medical evidence of record is obvious and manifest (clear and unmistakable) that a disability of each knee pre-existed active service; (b) If so, whether the medical evidence of record is obvious and manifest (clear and unmistakable) that any preexisting disability of each knee was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (c) If the medical evidence of record is not obvious and manifest (clear and unmistakable) that any disability of each knee preexisted service and was not aggravated by service, whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed disability of each knee either had its onset during a period of active service, or is the result of disease or injury incurred during active service-specifically, to include complaints of knee problems in boot camp and in running track, as reported by the Veteran; and the Veteran's claim of continuing knee pain since then. A complete rationale must be provided for all opinions rendered. 2. Finally, readjudicate the Veteran's claim seeking service connection for bilateral knee disabilities. If the benefit sought remains denied, furnish a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs