Citation Nr: 1735577 Decision Date: 08/28/17 Archive Date: 09/06/17 DOCKET NO. 09-44 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to asbestos, herbicide (Agent Orange), ionizing radiation, and other chemicals and hazardous materials. WITNESS AT HEARING ON APPEAL The Veteran FINDING OF FACT Type II diabetes mellitus is etiologically related to in-service exposure to chemicals and other hazardous materials. CONCLUSION OF LAW The criteria for presumptive service connection for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 1154(a), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from November 1968 to September 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In April 2012, the Veteran testified at a videoconference hearing, chaired by a Veterans Law Judge (VLJ) who has since retired from the Board. A transcript of that hearing is associated with the claims folder. In January 2017, the Board sent the Veteran a letter offering him another hearing before a different VLJ that will ultimately decide this appeal. See 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2016) (the Board member who conducts the hearing will participate in making the final determination of the claim). However, the Veteran did not respond to this letter. He did not request another hearing. As such, according to the terms of the letter, the Board assumes the Veteran does not want another hearing. Accordingly, the Board will proceed to adjudicate the service connection claim on appeal. In July 2012 and August 2015, the Board remanded the appeal for further development. The case has since been returned to the Board for appellate review. The Veteran is seeking entitlement to service connection for diabetes mellitus on the basis that his disability is due to his exposure to one or more hazardous and toxic materials during service. This alleged exposure includes asbestos, herbicides (Agent Orange), ionizing radiation, and other chemicals and hazardous materials. The Veteran has asserted that, while assisting with the decommissioning of the USS Bennington in dry dock, he was exposed to a variety of toxic and hazardous materials including red lead asbestos (from dismantling of AC and heating ducts), arsenic, mercury, and polychlorinated biphenyls (PCBs). This occurred while the USS Bennington was in dry dock at the Long Beach, California Naval Shipyard from 1969 through 1970 and at the Puget Sound Naval Shipyard in Bremerton, Washington in 1970. He states his assignment required maintenance, restoration, and dismantling of various components of the vessel. These activities related to the removal and disposal of equipment caused continuous and unprotected exposure to the above chemicals and toxins. The Veteran testified that his military occupational specialty (MOS) during service was a boatswain's mate or deck seaman, which required that he help clean out and paint spaces aboard the USS Bennington which had not been accessed for 20 to 30 years. As such, he insists he was exposed to unusual toxins to which the average sailor was not exposed. See April 2008 VA Form 21-526 (Formal Claim), May 2008 and December 2008 and May 2013 statements from the Veteran, April 2012 videoconference hearing transcript. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish presumptive service connection as a chronic disease, type II diabetes mellitus must manifest itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). VA regulation specifies that for presumptive service connection based on the one-year presumption, the factual basis may be established by medical evidence, competent lay evidence, or both. See 38 C.F.R. § 3.307(b). The question for the Board is whether the Veteran's current diagnosis type II diabetes mellitus either began during active service, or within one year of service, or is otherwise etiologically related to an in-service disease or injury or incident. The Board finds that competent, credible, and probative evidence establishes that current type II diabetes mellitus is etiologically related to the Veteran's active service, by way of the one-year presumption for chronic diseases. The Veteran was exposed to various chemicals and hazardous materials as part of his work on the overhaul and dismantling of the USS Bennington during active duty in 1969, and credibly developed symptoms of type II diabetes mellitus within one year of service. Service personnel records (SPRs) confirm that the Veteran served aboard the USS Bennington from January 1969 to February 1970. In addition, the Dictionary of American Naval Fighting Ships confirms that from November 1968 to April 1969, the USS Bennington was stationed at Long Beach Naval Shipyard in California for a five-month overhaul. Therefore, taken together, this evidence confirms that for the time period of January 1969 to April 1969, the Veteran served as a boatswain's mate or deck seaman onboard the USS Bennington while the overhaul was being performed. The USS Bennington resumed active service on April 30, 1969. The Puget Sound Naval Shipyard and Intermediate Maintenance Facility indicated in July 2012 it was "possible" there were exposures to hazardous substances during this timeframe for the Veteran. Furthermore, in a July 2012 E-mail from the RO's military records specialist, this person indicated that decommissioning of a naval vessel may entail removing items from the ship and leaving it in a "bare bones" condition. He added that when decommissioning ships it may include removing equipment or anything in the ship that would be considered valuable before leaving the ship to be sold. Moreover, an October 2008 VA audiology examiner mentioned that the Veteran worked eight hours a day for a year in a shipyard using a pneumatic hammer chipping paint. Service treatment records (STRs) also provide some circumstantial evidence of the Veteran's exposure to chemicals and hazardous materials as part of his MOS duties. For example, a December 1969 STR reported that the Veteran was treated for nausea following exposure to aviation gas fumes in December 1969 onboard the USS Bennington. Also, STRs dated in March 1969, May 1969, March 1970, and April 1970 document the Veteran was treated at the Naval Hospital in Long Beach, California for left eye pain from a paint chip, rust in the left eye, and cleaning solvent splashing into the left eye. The Board finds that in-service exposure to various chemicals and hazardous materials, as supported by the Veteran's STRs, SPRs, and his MOS duties, is credible and consistent with the places, types, and circumstances of the Veteran's service in the Navy in 1969 and 1970. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Post-service, the Veteran has competently and credibly indicated he was first diagnosed with type II diabetes mellitus in the early 1990s, so over 20 years after discharge from service. See April 2012 videoconference hearing transcript at page 3. He has added he was not obese at this time, and has no family history of diabetes. See May 2013 Veteran's statement. The Veteran has indicated his symptoms of diabetes mellitus existed much earlier, but he disregarded any symptoms present at discharge and in the year after service because he did not have health insurance coverage. Over the years he says the condition worsened. See March 2009 NOD. With regard to a nexus, in October 2009, the Veteran submitted an internet medical treatise article from the National Center for Biotechnology Information (NCBI). This article reflected that six epidemiologic reports link diabetes mellitus with arsenic exposure from environmental and occupational sources. The internet article commented that metals such as cadmium, mercury, arsenic lead, fluoride, and possibly aluminum may play a role in the actual destruction of beta cells through stimulating an auto immune reaction to them after they have bonded to these cells in the pancreas. With regard to a nexus, the Board has also considered an April 2013 VA medical opinion from the Chief of Endocrinology at the Providence VA Medical Center (VAMC). This VA endocrinologist remarked the Veteran was competent to report the events that occurred during service. Furthermore, there were several entries in his STRs of the Veteran being exposed to aviation gas fumes, having paint chips in the left eye, and having solvent exposure to the left eye. The VA endocrinologist also reviewed medical treatise evidence linking diabetes mellitus to certain chemicals. The VA endocrinologist explained that there are some population-based studies associating environmental exposures such as arsenic, mercury, and lipophilic chemicals to the development of type II diabetes mellitus. Most importantly, in a December 2015 VA addendum opinion (only on Virtual VA), the same VA physician opined that given the prolonged clinical course of type 2 diabetes mellitus, which is formally diagnosed following years of mild hyperglycemia for the Veteran, "it is as likely as not (probability of 50 percent or more)" that the pathogenic process that resulted in the Veteran's ultimate diagnosis of type II diabetes mellitus had its onset in the year immediately following service. Therefore, the medical and lay evidence supports service connection for type II diabetes mellitus based on the one-year presumptive provisions for a chronic condition. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for type II diabetes mellitus is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel Copy mailed to: The American Legion Department of Veterans Affairs