Citation Nr: 1743149 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 14-34 601A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for type II diabetes mellitus due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to May 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In July 2017, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT 1. The evidence of record is at least evenly balanced as to whether the Veteran set foot in the Republic of Vietnam during the applicable presumptive period. 2. The Veteran has a current diagnosis of type II diabetes mellitus. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for type II diabetes mellitus as due to exposure to certain herbicide agents during active military service are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). In this case, the Board is granting in full the benefit sought on appeal with respect to the Veteran's service connection claim for type II diabetes mellitus. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran contends that his type II diabetes is due to exposure to herbicide agents during active military service. Specifically, the Veteran asserts that he was exposed to herbicides on a daily basis while he stationed at Don Muang Royal Air Force Base in Thailand and he had a layover at Ton Sun Nhut Air Base in Vietnam. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). With respect to the Veteran's assertion that his diabetes is due to herbicide exposure, the Veteran must show the following in order to establish presumptive service connection for a disease associated with exposure to herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2016). Type II diabetes mellitus is listed under the diseases associated with herbicide exposure for purposes of the presumption. 38 C.F.R. § 3.309(e). In assessing the Veteran's service connection claim for diabetes, the Board must first determine whether the veteran currently has the claimed disability. A letter from the Veteran's private physician received in March 2011 reveals that the Veteran was diagnosed with type II diabetes mellitus in June 2008. A December 2010 VA treatment record shows that the Veteran's type II diabetes mellitus was treated with an oral diabetes medicine (metformin). See December 2010 VA treatment record. Thus, the evidence of record shows that the Veteran has a current diagnosis of type II diabetes mellitus. The Veteran asserts that he served at Don Muang Royal Thailand Air Force Base from January 1970 to December 1970. In July 1970 he took leave and went to Spokane, Washington. On his return to Thailand, he volunteered as a C-1 Classified Courier. The plane landed in Vietnam at Tan Son Nhut Air Base. He went base Headquarters and he delivered a classified document pouch to the Courier Office. The aircraft spent four to five hours on the ground in Vietnam. He reboarded the aircraft and flew to Don Muang Royal Thailand Air Force Base. A review of the Veteran's service personnel records shows that the Veteran was stationed at Don Muang Royal Thailand Air Force Base from January 1970 to January 1971 as an air traffic control tech and Radar Approach Control (RAPCON) Chief Controller. A Performance Report for the period from January 1970 to November 1970 reflects that in addition to his official duties, the Veteran volunteered and engaged in many other tasks around the base to include section historian, squadron fire marshal, and a member of the Base Top-3 Council. There was also a notation that the Veteran had assisted the Base Operations Officer in many projects. Although there is no documentation that the Veteran also worked as a courier, the Veteran volunteering his services as a C1 Classified Courier, would be consistent with his actions documented in his Performance Reports of going above and beyond his duty requirements. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Unfortunately, there is no evidence in the Veteran's service records that document that the Veteran volunteered as a Classified Courier, that part of his duties as a Classified Courier required him to deliver documents to the Courier Office at Tan Son Nhut Air Base, or that he experienced a layover in the Republic of Vietnam in July 1970 after returning from leave. However, the United States Court of Appeals for Veterans Claims (Court) has noted evidence that "it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton Son Nhut Air Base in Vietnam, where the veteran's alleged layover took place]." Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176. (2016). In Parseeya-Picchione, the Court referenced an email from an archivist at the Air Force Historical Research Agency, in which it was reported that "[a]s a general rule, military cargo aircraft, especially those engaged in 'airlines' would stop over at Ton Son Nhut Air Base, Republic of Vietnam enroute to bases in Thailand. Very few of this sort of flight were made 'direct' to bases in Thailand from bases outside Southeast Asia." Overall, the Veteran's reports are consistent with the information contained in his service personnel records and the procedures that were followed by military aircraft during the Vietnam War according to the Court in Parseeya-Picchione. Thus, the Board finds that the Veteran's reports of setting foot in Vietnam during the Vietnam War Era are credible and exposure to herbicide agents in service is conceded. 38 C.F.R. §§ 3.307, 3.309. Based on the foregoing, the evidence shows that the Veteran at least as likely as not that the Veteran "set foot" in the Republic of Vietnam during the applicable time period and that he currently has type II diabetes mellitus. As he requires a restricted diet and an oral hypoglycemic agent for his diabetes, the disability is manifested to a compensable level for VA purposes. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2016). As noted above, type II diabetes mellitus is presumed to be due to exposure to certain herbicide agents, if it has become manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, after resolving reasonable doubt in favor of the Veteran under the specific facts of this case, entitlement to service connection for type II diabetes mellitus is warranted. ORDER Entitlement to service connection for type II diabetes mellitus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs