Citation Nr: 1637639 Decision Date: 09/26/16 Archive Date: 10/07/16 DOCKET NO. 09-46 531A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from February 1962 to April 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Detroit, Michigan, Regional Office (RO). In June 2013, the Board remanded the case to the RO for additional action. The issues of service connection for emphysema, chronic pneumonia, and internal bleeding have been raised by the record in July 2009 notice of disagreement (NOD), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran was exposed to herbicides while stationed in Thailand. 2. Type II diabetes mellitus was caused by active service. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1116, 1154(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA has issued several notices to the Veteran including a June 2009 notice which informed him of the evidence generally needed to support a claim for entitlement to service connection for diabetes; what actions he needed to undertake; and how VA would assist him in developing his claims. The June 2009 notice was issued to the Veteran prior to the June 2009 rating decision from which the instant appeal arises. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA's duties to notify and to assist have been met. II. Analysis Where a veteran was exposed to an herbicide agent during active military, naval, or air service and type II diabetes mellitus becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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). VA's Compensation and Pension Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Air Force veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force bases (RTAFB) anytime between February 28, 1961, and May 7, 1975. The listed Thai military facilities include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAFBs. If a veteran's military duties, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, placed him or her near the air base perimeter, then VA is to concede herbicide exposure on a direct or facts found basis. VA Adjudication Procedures Manual, M21-1MR, Part IV.ii.1.H.5.a-b. Due consideration must be given to the places, types, and circumstances of such veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. §§ 1154 (a). The veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. Service treatment records do not document any history of diabetes while in service. A September 2004 VA treatment record conveys that the Veteran was diagnosed with type II diabetes mellitus. The Veteran's service personnel records indicate that he was at Camp Essayons in Thailand from July 1965 to July 1966. While there, he served as a construction machine operator with the 538th Engineer Battalion. In a May 2009 statement, the Veteran wrote that he built roads while stationed in Thailand. A February 2014 Joint Services Records Research Center (JSRRC) report indicates that the Veteran's battalion was located at Korat RTAFB and built roads during the period when he was stationed in Thailand. The Veteran's military occupation as a construction machine operator and service with the 538th Engineer Battalion is consistent with service that would have put him at the perimeter of Korat RTAFB. See 38 U.S.C.A. §§ 1154 (a). Affording the Veteran the benefit of the doubt, the Board finds that he was exposed to herbicides while stationed in Thailand and, therefore, service connection for type II diabetes mellitus is warranted. VA Adjudication Procedures Manual, M21-1MR, Part IV.ii.1.H.5.a-b. The claim is granted. ORDER Service connection for type II diabetes mellitus is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs