Citation Nr: 1737293 Decision Date: 09/06/17 Archive Date: 09/19/17 DOCKET NO. 10-01 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Michael E. Wildhaber, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to March 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2010. A transcript of the hearing is associated with the claims file. The Board remanded the issue on appeal for additional development in March 2011. The requested development having been conducted, the Board finds that the directives were substantially complied with and the matter again is before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran submitted additional evidence in support of his claim after the March 2011 Board remand, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2016). In June 2015, the Board denied the Veterans claim. The Veteran appealed the denial to the United States Court of Appeals for Veteran's Claims (Court). A September 2016 memorandum decision remanded the claim back to the Board. This claim is now before the Board once again. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran served on the Ubon Royal Thai Airforce Base (RTAB) during the Vietnam War era. 2. The Veteran's regular occupational duties placed him on the flight line and aerial port at Ubon RTAB. 3. The flight line and aerial port of Ubon RTAB were near the perimeter of the base. 4. The Veteran's service at Ubon RTAB exposed him to herbicides agents. CONCLUSION OF LAW The Veteran's type II diabetes mellitus is presumed to have been incurred during his active service in Thailand during the Vietnam era. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). As discussed in more detail below, sufficient evidence is of record to grant the application for entitlement to service connection for type II diabetes mellitus. Thus, any errors in complying with the notice or assistance requirements with respect to those matters are moot. Legal Criteria Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include type II diabetes mellitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For type II diabetes mellitus, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Finally, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an "herbicide agent" includes the chemicals 2,4-D; 2,4,5-T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed. Id. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 2, Section C ("M21-1"). 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 the above-referenced "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows 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. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. See M21-1, Part IV, Subpart ii, Chapter 2, Section C.10.(q). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Analysis The Veteran contends that he is entitled to service connection for type II diabetes mellitus, to include as due to herbicide exposure. The medical evidence reflects that the Veteran has a current diagnosis of type II diabetes mellitus, and therefore a current disability has been shown and the first element of service connection met. Turning to the second element, the Veteran has alleged that he was exposed to herbicides while in service. Specifically, the Veteran has alleged that he landed in Vietnam on a lay-over while flying from Thailand to the Philippines, and that he was exposed to herbicides while serving at Don Muang and Ubon Royal RTAFBs. Beginning with the first contention, the Veteran's personnel records are silent for any indication that the Veteran at any point landed in Vietnam, whether on a lay-over or flying there directly. Indeed, the records only indicate that the Veteran had service in Thailand and the continental United States. The Veteran submitted an August 1971 flight reservation and a map of Vietnam in support of his contention. However, the flight reservation only reflects that the Veteran scheduled to fly from Clark Air Force Base (AFB), in the Philippines to Travis AFB, located in California. This does not show that the Veteran landed in the country of Vietnam, nor does the map establish that a lay-over occurred. As there is no corroborating evidence indicating that the Veteran in fact, at any point, set foot in the country of Vietnam, whether on a lay-over or for any other reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran had qualifying service in the country of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Therefore, the Veteran is not presumed to have been exposed to herbicides. Turning to the Veteran's contentions regarding actual herbicide exposure while stationed at Don Muang and Ubon RTAFBs, A review of the Veteran's personnel records does show that he was stationed at both Don Muang and Ubon RTAFBs with the 6th Aerial Port Squadron. Further, performance reviews covering the periods from April 1970 to May 1971 and from May 1971 to September 1971 reflect that the Veteran's duties entailed scheduling military and civilian personnel for air transportation, preparing manifests, processing passengers and baggage, meeting planes, on-loading and offloading passengers and baggage, and screening travel documents. The Veteran has stated his primary work station was the passenger and air cargo terminal, also called the "aerial port." The Board finds that the Veteran's testimony about his duties and his work station are supported by his personnel records. However, the issue remains whether these duties regularly placed him on or near the perimeter. The Veteran stated that his duties put him near the perimeter in a May 2011 statement. He further noted in an April 2017 statement that the aerial port was very near the perimeter. In support of this statement the Veteran has provided citations to Project CHECO, which indicated that at a point the perimeter of Ubon RTAB was less than 300 feet from the where aircraft were parked. The Veteran has also provided photographs that show the proximity of the aerial port to the perimeter. The Project CHECO report and the photographs provide credible supporting evidence to the Veteran's statements that his job duties placed him near the perimeter of the base. As there is no contravening evidence, and following the procedures outlined in the M21-1, the Board finds the Veteran was exposed to herbicide agents while stationed at Ubon RTAB. See M21-1, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Therefore, the second element of service connection is met. Finally, the third element, a causal nexus between the current disability and the in-service event, is presumed. As the evidence indicate the Veteran was exposed to herbicide agents during his service in the Vietnam era, VA must presume his type II diabetes mellitus was caused by the exposure to herbicide agents. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Therefore, the Veteran has established all three elements for entitlement to service connection for his type II diabetes mellitus. ORDER Entitlement to service connection for type II diabetes mellitus is granted ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs