Citation Nr: 1637164 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 13-24 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to October 1973. The Veteran participated in combat as a Navy pilot. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a Board hearing held via videoconference in January 2016. The claims file contains a transcript of that hearing. The record contains evidence not yet considered by the agency of original jurisdiction (AOJ), but the Veteran clearly and explicitly waived AOJ consideration of that evidence at his January 2016 Board hearing. In addition, the Board is granting the benefits sought. The Board may proceed to the merits. 38 C.F.R. § 20.1304(c) (2014). FINDINGS OF FACT 1. The Veteran had service in Vietnam, so was presumptively exposed to herbicide agents, including Agent Orange; during his active service. 2. The Veteran's diabetes mellitus type-2 is, at least as likely as not, etiologically related to his exposure to herbicide agents during his active service. CONCLUSION OF LAW The criteria for service connection diabetes mellitus have been met. 38 U.S.C.A. § 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran seeks service connection for diabetes mellitus type-2. He is a decorated veteran who honorably served during the Vietnam War as a Navy pilot. . See, e.g., Citation Awarding Fifteenth Air Medal (recognizing the Veteran's "devotion to duty in the face of enemy fire under hazardous flying conditions" while "engaged in combat operations against the enemy in Southeast Asia"). He alleges that, occasionally, he flew from the aircraft carrier on which he was stationed (the U.S.S. Hancock) to the Da Nang airbase and exited the aircraft, thereby being exposed to herbicide agents (e.g. Agent Orange). A Veteran whose military service involved "duty or visitation in the Republic of Vietnam" between January 9, 1962 and May 7, 1975, is presumed to have been exposed during such service to herbicide agents (e.g. Agent Orange). 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Federal Circuit has affirmed VA's interpretation of that regulation as requiring the physical presence of a veteran within the land borders of Vietnam during service. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 555 U.S. 1149 (2009). Diseases associated with exposure to certain herbicide agents (e.g. Agent Orange) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran's claim relates to diabetes mellitus, which is listed as one of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). In short, to succeed on his claim, the Veteran needs to show service in Vietnam and a current disability consisting of diabetes mellitus. The evidence establishes both elements. The Veteran has provided detailed, highly-credible testimony regarding his flights from the U.S.S. Hancock (CV-19) to Da Nang airbase, where he would disembark while awaiting orders to return to his aircraft carrier. See January 2016 Board Hearing Transcript, generally. He also submitted copies of his logbooks documenting multiple flights between "C19" and "DAG". See also June 2012 Notice of Disagreement (setting forth evidence, including copies from his flight logbook, supporting his contention that DAG represents Da Nang airbase, that he was "boots on the ground" in Vietnam, and that he has diabetes mellitus with resultant bilateral peripheral neuropathy). His military personnel records establish that the Veteran was stationed on the U.S.S. Hancock during the period his logbook records those flights. Moreover, the record establishes that the U.S.S. Hancock was in the Southeast Asia theater supporting combat operations in Vietnam during the relevant period. The RO initially denied the Veteran's claim on the basis that, although the Veteran's flights between "C19" and "DAG" were well-documented, the evidence did not establish that the designator "DAG" referenced Da Nang airbase. The Board finds otherwise. In addition to his own credible testimony, the Veteran has submitted supportive statements from fellow service members who confirm that "DAG" was the three-letter code used to identify Da Nang airbase. For example, a (retired) Rear Admiral noted: I was a pilot assigned to [the same fighter squadron as the Veteran], embarked in USS Hancock from Oct 1970 - Oct 1972. During these two years of combat operations into Vietnam, Da Nang airbase was used as our alternate airfield. We were instructed to land there on several occasions and the letters DAG were entered into the 'REMARKS' column of our logbook to record this event. Attached is a copy of a page from my logbook for confirmation. A copy of the Rear Admiral's logbook was attached and noted flights to "DAG" from "C19". The Veteran's other supportive fellow service members also submitted copies of their logbooks, again showing flights originating to or from DAG which, they stated, signified Da Nang airbase. The Board finds that these statements are highly credible evidence, including because they are supported with documentary evidence. The only evidence against finding that DAG was used to identify Da Nang airbase is the August 2013 Formal Finding from the Joint Services Records Research Center (JSSRC) Coordinator. The Formal Finding confirms that the Veteran's flight logs do show entries for DAG, but concludes that Da Nang's airbase identifier was "DAD". (The official "DAD" designator has been assigned to the Da Nang International Airport, but it is not clear from the record whether this designator was assigned prior to the period in question.) A reply from the Defense Personnel Records Information Retrieval System (DPRIS) indicated that the identifier DAG is for the Barstow-Daggett Airport in California. On the issue of what DAG refers to in the Veteran's logbooks, the Board gives this Formal Finding and the evidence from DPRIS little weight relative to the Veteran's testimony, the statements of his fellow pilots, and the documentary evidence he and they submitted in support of their statements. The logbooks document that the Veteran flew between DAG and C19 on multiple occasions. The Veteran's personnel records place him on the U.S.S. Hancock, which was in the Southeast Asia theater, at the time of these flights. The U.S.S. Hancock is designated as ship CV-19. See, e.g., Citation Awarding Fifteenth Air Medal ("For meritorious achievement in aerial flight as a pilot jet aircraft while attached to Fighter Squadron TWO HUNDRED ELEVEN embarked in USS HANCOCK (CVA19)."). The Board takes judicial notice that the distance from the waters off of Vietnam to Barstow-Daggett Airport is well over 6,000 miles. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (judicial notice may be appropriate for facts that are " not subject to reasonable dispute ."); McCreary v. Nicholson, 19 Vet. App. 324, 327 (2005) (providing for judicial notice). The Board also takes judicial notice that the aircraft the Veteran flew (the F-8J Crusader) had a range of significantly less than 6,000 miles. See June 2012 Notice of Disagreement (with attached copies of logbook identifying his aircraft as an "F8J"). Based on these facts, or simple common sense, the Veteran would not have been able to fly from the U.S.S. Hancock (CVA-19) to Barstow-Daggett Airport in California during the times the U.S.S. Hancock was stationed in the waters near Vietnam, much less within the logged one half to three hours for each such flight. Whatever DAG signifies in the logbooks, it cannot be Barstow-Daggett Airport. Because the Veteran's and his fellow service member's statements (as supported by documentary evidence) are the most credible (and sensible) evidence of record regarding the airfield represented by the letters DAG in the Veteran's logbooks, the Board finds that the Veteran's logbooks document that he flew into Da Nang airbase on multiple occasions. The Board credits his testimony that he left his aircraft while at the Da Nang airbase which is located in Vietnam. Consequently, the record establishes that the Veteran served in Vietnam during the relevant period, so he is presumed to be have been exposed to herbicide agents. There is no evidence that he was not, in fact, exposed, so the presumption is not rebutted. Exposure to herbicide agents is established. Furthermore, the May 2012 VA Examination resulted in a diagnosis of diabetes mellitus type-2. See also October 2010 VA Primary Care Note ("pt recently dx-d with diabetes 1 month ago after an outside physical prompted by plantar numbness of his feet"). The Veteran has a current disability that is presumptively associated with exposure to herbicide agents. All elements of the Veteran's claim have been established. Accordingly, the Board will grant the Veteran's claim of entitlement to service connection for diabetes mellitus type-2. Because the Veteran's claim has been granted and the Veteran could suffer no prejudice, the Board need not discuss the VA's fulfillment of its duties to notify and assist with respect to this issue. ORDER Entitlement to service connection for diabetes mellitus is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs