Citation Nr: 1751150 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-01 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due to herbicide agent exposure, for accrued benefits purposes. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney ATTORNEY FOR THE BOARD N. Allen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from June 1971 to April 1975. He died in September 2004. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2010, the Board issued a decision denying, in pertinent part, entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide agent exposure, for accrued benefits purposes. In August 2011, the United States Court of Appeals for Veterans Claims (Court) granted the parties' Joint Motion for Partial Remand (JMPR). Specifically, the Court set aside the portion of the Board's September 2010 decision denying Appellant's claim for service connection for diabetes mellitus, type II, for accrued benefits purposes, and remanded the matter to the Board for readjudication consistent with the JMPR. In doing so, the Court stated, in pertinent part, that the Board failed to address the applicability of 38 C.F.R. § 3.307(a)(b)(iv)- service in or near the Korean DMZ. In February 2012, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for development consistent with aforementioned JMPR. The claim was again remanded in April 2013 for further development. In March 2017, the Board remanded the claim again for additional development to determine whether the Veteran was exposed to herbicide agents while serving in Korea or Thailand during his active duty service. FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether the Veteran was exposed to herbicide agents while serving at Ubon Royal Thai Air Force Base (RTAFB). 2. The Veteran was diagnosed with diabetes mellitus, type II, one of the diseases listed as being associated with exposure to certain herbicide agents, at the time of his death. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the appellant, the criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for diabetes mellitus, for accrued benefits purposes, is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. The appellant asserts that she is entitled to accrued benefits. The law governing claims for accrued benefits provides that, upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Accrued benefits include those that a veteran was entitled to at the time of death under an existing rating or the evidence physically or constructively of record at the time of that veteran's death. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). Thus, the appellant cannot furnish additional evidence that could be used to substantiate her claim, and VA cannot develop additional evidence that would substantiate the claims of entitlement to accrued benefits. "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); see also Hayes v. Brown, 4 Vet. App. 353 (1993). The Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In addition, an application for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000(c). To that end, the appellant's claim for accrued benefits was filed in November 2004, within one year of the Veteran's death. His claim for service connection for diabetes mellitus was pending at the time of his death. Therefore, the Board finds that the threshold criteria for consideration of the claim, on an accrued basis, have been met. As such, the pending claim must now be adjudicated. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including diabetes mellitus) may be service-connected on a presumptive basis if manifested to a compensable degree in a specific period of time postservice (one year for diabetes mellitus). 38 U.S.C.A. §§ 1112 , 1137; 38 C.F.R. §§ 3.307, 3.309. Section 1112 does not apply in this case, as the medical evidence does not show, and the appellant does not contend, that the Veteran's diabetes mellitus was diagnosed in service or within one year thereafter. However, if a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e). Diabetes mellitus, Type II, is an enumerated disease. The appellant's claim of service connection is predicated on the Veteran's alleged exposure to herbicide agents while serving in Korea. Efforts were undertaken to determine whether the Veteran served in a unit that operated in the Korean Demilitarized Zone (DMZ) at any time between April 1968 and August 1971. The development completed did not show that the Veteran's service in Korea met the foregoing requirements for establishing herbicide agent exposure therein. However, as the Board finds below that the Veteran is reasonably shown to have been exposed to herbicide agents in the course of his service in Thailand, further discussion of other possible exposure to herbicide agents in Korea is not necessary. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, 1.H.5.a ("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 a declassified Vietnam era Department of Defense document titled "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 (RTAFB) 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, 1.H.5.b. In July 2016, while researching whether the Veteran had herbicide agent exposure in Korea, the Defense Personnel Records Information Retrieval System (DPRIS) reported that the Veteran's unit (the 8th Tactical Fighter Wing (8th TFW)) was stationed at Ubon RTAFB in Thailand from March to April 1974. Consequently, in March 2017, the Board remanded the claim to determine whether the Veteran was exposed to herbicide agents during this period of military service. In August 2017, DPRIS reported the following: We researched the January to December 1974 histories submitted by the 8th Tactical Fighter Wing (8th TFW), the higher headquarters of the 8th Field Maintenance Squadron (8th FMS). The histories document that during the period March - April 1974, the 8th FMS and 8th TFW were stationed at Ubon Royal Thai Air Force Base (RTAFB), Thailand . . . [Joint Services Records Research Center] reviewed a copy of U.S. Air Force Historical Research Agency memorandum of the Department of Veterans Affairs dated August 11, 2015. The memorandum pertains to the [U.S. Air Force] installations operating in Thailand from 1963 through 1976. These installations were located on the following Royal Thai Air Force Bases: U-Tapo, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The memorandum concludes "...no documentation or evidence has been found in the holdings of the Historical Research Agency showing that tactical herbicides, such as Agent Orange, were ever used on any USAF installation in Thailand for vegetation control during the Vietnam era." To the extent the August 2017 DPRIS report indicates that an August 2015 memorandum by the Air Force Historical Research Agency has concluded that there was no evidence of use of tactical herbicide agents on any Thailand air base during the Vietnam-era, the Board finds it is inconsistent with other current VA guidance. As noted above, the current practice of VA's Compensation Service is to extend special consideration of herbicide exposure on a factual basis to those Veterans whose duties placed them on or near the perimeter of Thailand military bases during the Vietnam era. Here, the record clearly establishes that the Veteran served on a RTAFB during the relevant time period in question. The question to thus be resolved in this case then is whether his duties in the Air Force placed him on or near the perimeter of that RTAFB. The Veteran's DD 214 indicates he served as an aircrew egress system repairmen. The Board thus finds it likely that his duties in Thailand involved working on flight lines that were close to the perimeters of his RTAFB. Resolving all reasonable doubt in favor of the Veteran, and based on the facts found, the Board has determined that the Veteran was exposed to herbicide agents, to include Agent Orange, during his active duty service in Thailand. 38 C.F.R. § 3.102. In addition, the evidence shows that the Veteran had a diagnosis of diabetes mellitus, Type II, at the time of his death. As such, the Veteran's diabetes mellitus is presumed to have been caused by his conceded herbicide agent exposure. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). ORDER Service connection for diabetes, for accrued benefits purposes, is granted. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs