Citation Nr: 1709497 Decision Date: 03/28/17 Archive Date: 04/07/17 DOCKET NO. 13-23 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for diabetes mellitus to include as secondary to herbicide exposure. 2. Entitlement to service connection for peripheral vascular disease to include as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1960 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2016, the Veteran presented sworn testimony during a Video Conference Board hearing in Phoenix, Arizona, which was presided over by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus. 2. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran was in Vietnam during his active service. 3. The Veteran's peripheral vascular disease is related to his diabetes mellitus CONCLUSIONS OF LAW 1. The criteria for service connection for of diabetes mellitus, Type II, due to herbicide exposure 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(e) (2015). 2. The criteria for service connection on a secondary basis for peripheral vascular disease is met. §§ 1110, 1131, 5107 (West 2014), 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant decision, the Board is granting the Veteran's claims. Therefore, even if VA did not meet its duty to notify and assist in this case, such error is harmless and no further discussion is necessary. Presumptive Service Connection - Certain Herbicide Agents For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. §1116 (f); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). 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. Id. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, DMII shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(ii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). 38 C.F.R. § 3.307 (a)(6)(ii) requires that DMII have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.309 (e). For the purposes of presumptive herbicide exposure, service in Vietnam requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307 (a)(6)(iii). Instead, it requires service on the landmass and includes service on the inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (finding valid VA's interpretation that grants the presumption of exposure to Agent Orange to a Veteran who set foot in Vietnam or served on a vessel that traveled on inland waterways of Vietnam, but not to a Veteran who served on a vessel in the waters off the coast of Vietnam without setting foot in, or travelling along the inland waterways of Vietnam). Service Connection - Secondary Service Connection Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2015). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310 (b) (2013); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. (CONTINUED ON NEXT PAGE) Diabetes The Veteran contends that while serving aboard the USS Manatee in December 1970 that he went ashore in Vietnam while the ship was anchored in Vung Tau Harbor. It is a historical fact that the USS Manatee anchored in Vung Tau Harbor in December 1970. See Joint Services Record Research Center (JSRRC) memo received October 2008. The fact in dispute is whether the Veteran set foot on land while the USS Manatee was anchored in Vung Tau Harbor. The Board finds that the Veteran set foot in Vietnam while the USS Manatee was anchored in Vung Tau Harbor. In September 2011, W. B. R. submitted a statement on behalf of the Veteran that supports the Veteran's assertions regarding his going ashore while they were anchored in Vung Tau Harbor. The Board finds this statement to be credible and probative in corroborating the Veteran's credible statements as to his having traveled ashore to Vietnam. W. B. R. is competent to report where he was at what time and who was with him; moreover, the Board finds that this testimony is credible as W.B.R. listed other crew members who were aboard at the time. Considering the foregoing, the Board finds that the Veteran did set foot in Vietnam and thus, the presumption of exposure to certain herbicides is conceded and furthermore, the presumption of service connection to diabetes from this presumed exposure is conceded. Service connection for diabetes on a presumptive basis is warranted. Peripheral Vascular Disease Secondary to DMII. The Veteran contends that his bilateral peripheral vascular disease was caused by his diabetes. The evidence of record supports this contention and the Board finds that service connection on a secondary basis is warranted. In a January 2006 VA treatment note the Veteran was diagnosed with peripheral vascular disease, See Wallin, supra (element 1). As noted above, the Board has found that the Veteran's diabetes is service-connected. See Wallin, supra (element 2). The Veteran submitted a January 2006 VA treatment record wherein a VA clinician unequivocally links the Veteran's peripheral vascular disease to his diabetes. In sum, the correspondence stated that the Veteran's diabetes caused his peripheral vascular disease. See Wallin, supra (element 3). The Board finds that all three elements for entitlement to service connection on a secondary basis have been met as the evidence demonstrates a current disability which was caused by a service connected disability. Thus, service connection for peripheral vascular disease is warranted. ORDER Service connection for diabetes mellitus type II is warranted. Service connection for peripheral vascular disease secondary to diabetes mellitus type II is warranted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs