Citation Nr: 1751656	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO. 14-04 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for diabetes mellitus, type II. 

2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure. 



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel


INTRODUCTION

The Veteran had active service from November 1967 to June 1971.
 
This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

The Board notes that located in the Veteran's Legacy Content Manager Documents file (Virtual VA) is a November 2011 rating decision that granted service connection for the Veteran's diabetes mellitus type II, with an evaluation of 20 percent, effective June 18, 2006. For unknown reasons, it does not appear that this rating decision was ever issued to effectuate this grant. Rather, the RO, a few months later, issued a rating decision in June 2012 denying the very same claim for service connection for diabetes mellitus. The Veteran appealed. The Board will once again address the Veteran's claim, in effect confirming the November 2011 grant already of record. 


FINDINGS OF FACT

1. A September 2009 rating decision last denied service connection for diabetes mellitus, type II. 

2. Evidence pertaining to the Veteran's diabetes mellitus disability since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim.

3. Based on his credible assertions and the location of the Veteran's unit, and resolving all doubt in his favor, the Veteran is presumed to have been exposed to herbicide agents while serving along the perimeter of U-Tapao Air Force Base in Thailand.

4. The Veteran's diabetes mellitus, type II, is presumed related to his exposure to herbicide agents which occurred during his active service in Thailand.


CONCLUSIONS OF LAW

1. The September 2009 rating decision that last denied service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2. The evidence received since the last final September 2009 rating decision is new and material, and the claim for service connection for diabetes mellitus, type II, is reopened. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017).

3. The criteria for service connection for diabetes mellitus, type II, as secondary to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. New and Material Evidence

The Veteran most recently filed a request to reopen his claim for entitlement to service connection for diabetes mellitus, type II, in June 2011. 

At the time of the last final denial of the Veteran's claim in September 2009, evidence of record included service treatment records, buddy statements, treatment records, and personnel records. 

Evidence associated with the claims file since the previous September 2009 denial includes statements from the Veteran, additional treatment and personnel records, and additional statements from his friends regarding his service. 

Based on a review of this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for diabetes mellitus, type II, is reopened. 

II. Service Connection

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. § 1110 (2012). 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).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/ Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). 

Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases, such as diabetes mellitus, type II, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313 (2017).
 
In addition to exposure within the Republic of Vietnam, exposure to Agent Orange has been noted to have occurred in various places, including Thailand. VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime during the Vietnam Era, may have been exposed to herbicides. Particularly, to benefit from the presumption of herbicide exposure at one of the above listed air bases, a Veteran must have served 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 military occupational specialty, performance evaluation, or other credible evidence. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.
 
As noted above, the RO already granted service connection for the Veteran's diabetes mellitus, type II, in a November 2011 rating decision. It is unclear why this grant was never effectuated. As the claim is now under the Board's jurisdiction, the Board will briefly address the Veteran's assertions and once again grant his claim. 

In the present case, the Veteran asserts, and VA concedes, that the Veteran has a current diagnosis of diabetes mellitus. The Veteran contends that his diabetes mellitus is related to herbicide exposure during active duty. The Veteran asserted both exposure in Vietnam and when he served in close proximity to the perimeter of the base at the U-Tapao Air Force Base in Thailand. 
 
As noted in the November 2011 rating decision, the RO noted that they had researched U-Tapao and the 635th Combat Support Group to determine the Veteran's location within Thailand. The RO conceded the Veteran's exposure to herbicides. The Board will also concede the Veteran's exposure to herbicides in Thailand. Personnel records confirm that he served as a munitions specialist (loading) from June 1968 to June 1969 at U-Tapao Air Force Base in Thailand. The Veteran submitted credible statements and photographs describing where his work location was on the perimeter of the base. 

Based on the Veteran's credible assertions, and the supporting evidence indicating the Veteran served along the perimeter of U-Tapao Air Force Base in Thailand, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during his active service. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Further, as he is presumed to have been exposed to Agent Orange, the presumption of service connection for diabetes mellitus, type II, attaches. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). Therefore, service connection for diabetes mellitus, type II, is warranted.


ORDER

The claim for service connection for diabetes mellitus, type II, is reopened.

Service connection for diabetes mellitus, type II, as secondary to herbicide exposure, is granted.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs