Citation Nr: 1754524 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-13 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Richard G. Maxon, Attorney WITNESSES AT HEARING ON APPEAL Veteran and R.M. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. FINDINGS OF FACT 1. The Veteran was exposed to herbicides while serving in Thailand at Ramasun Station near Udorn Royal Thai Air Force Base from April to December of 1975. 2. The Veteran has a current diagnosis for diabetes mellitus that is presumptively associated with herbicide exposure. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he has diabetes related to in-service herbicide exposure during his military service in Thailand. He does not claim that he developed this disorder in service or within the initial post separation year. He does not allege exposure from service in Vietnam. Rather, he testified in May 2017 that he had consistent and regular exposure in the course of his day-to-day activities at Ramasun Army Station in Thailand, which included running, playing softball, securing the perimeter, etc.; also he noted that the facility's small size made it virtually impossible not to come in contact with the perimeter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection is presumed for diabetes mellitus if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202, 53216 (Aug. 31, 2010). The presumption is rebuttable. 38 C.F.R. § 3.309(e). Although a veteran who served in Thailand during the Vietnam era is not entitled to the legal presumption of exposure to an herbicide agent, VA's Adjudication Procedure Manual, M21-1, provides that exposure to an herbicide agent may be considered on a "direct/facts-found basis" if a Veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or "otherwise near the air base perimeter" as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. M21-1, Part IV, Subpart ii, Chapter 1, Section H; see also Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010). A May 2010 VA Compensation and Pension (C&P) Bulletin indicated that, after reviewing a declassified Vietnam era Department of Defense (DOD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand," it had been 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. Therefore, according to the C&P Service, when herbicide-related claims involving Thailand service are received, VA should evaluate the treatment and personnel records to determine whether a veteran's service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. Specifically, the report observes that some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from the Republic of Vietnam, or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Therefore, the C&P Service determined that special consideration of herbicide exposure cases should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. Having carefully considered the evidence of record in light of the above-noted legal authority, the Board finds that service connection for diabetes mellitus is warranted. It is noted that the facts of this case are unique to this Veteran and the Board will not address every supporting detail that led to this conclusion; but rather, the Board will address with a broad-brush the salient features of this case that support the conclusion. First, VA treatment record dated during the appeal period reflects a diagnosis of diabetes mellitus, which is classified as one of the enumerated diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). Second, the Veteran has presented credible supporting evidence that he was exposed to herbicides during service in Thailand. In this regard, service records shows that the Veteran was stationed with the 6924th USAF Security Squadron at Ramasun Army Station in Thailand from April to December of 1975. Although these records show that he did not have a military occupational specialty (MOS) that required perimeter base duty, the Veteran's sworn testimony regarding his duties and activities while stationed at Ramasun Army Station in Thailand are credible and consistent with his service. The Veteran's testimony included detailed information about his activities at Ramasun Army Station, travelling through Udorn Royal Thai Air Force Base (RTAFB), a description of the destroyed vegetation around the perimeter of Ramasun Army Station, and other supporting details. He emphasized that the perimeter of the base was regularly used for physical fitness training and was near in proximity to his barracks. He further noted that his contact with the perimeter was daily and that he was assigned to sand bag duty and shoring up the perimeter of the station. In support of his claim, he submitted a photograph and diagram Ramasun Army Station to show the area clear of foliage and the proximity of his barracks to the perimeter. The Veteran's account was corroborated by the sworn testimony of R.M., who served near in time to the Veteran at the same location. The Board acknowledges that there are no documents from the National Personnel Records Center (NPRC) showing exposure to herbicides. However, the Veteran submitted a portion of the Project CHECO Southeast Asia Report: Base Defense in Thailand, which stated that herbicides were used to assist in the difficult task of vegetation control and the record includes a photograph showing defoliated areas along with the credible sworn testimony of the Veteran and R.M. Third, presumptive service connection based on herbicide exposure extends to those Veterans whose duties placed them on or near the perimeter of Thailand military bases. In this regard, it is noted that the Thailand CHECO Report indicated sporadic use of non-tactical (commercial) herbicides within fenced perimeters; that, per the May 2010 VA C&P bulletin, 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; and that special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases (M21-1MR, IV.ii.2.C.10.q.). Thus, the legal authority allows for presumptive service connection of the diseases associated with herbicide exposure to be extended to Veterans whose duties placed them on or near the perimeter of Thailand military bases. In summary, while the Veteran in this case has reported visiting Royal Thai Air Force Bases during service, he has not reported service in the perimeters of those bases. Rather, he has reported having activities in the perimeter area of Ramasun Army Station, which were detailed in his sworn testimony and statements of record. The Veteran testified that he was involved in intelligence collection and his MOS was radio communications analysis specialist during service. Notwithstanding, the Veteran's service records confirm his presence at the Ramasun Army Station, he has described spending regular and frequent time near the perimeter of Ramasun Army Station, and he has submitted other evidence corroborating his report of activities at the perimeter and his proximity to the perimeter that is shown to be clear of vegetation. Thus, although there is no record of assignment to perimeter duty, the Board finds the Veteran's assertions regarding time spent near the perimeter of Ramasun Army Station to be credible. His report of the activities and their proximity to the perimeter are supported by R.M.'s sworn testimony. The Board is cognizant that the evidence does not explicitly show that the Veteran was exposed to herbicides during service, let alone the type of tactical agents comparable to Agent Orange. Nevertheless, in view of the aforementioned guidance from the M21-1 and the information set forth in the May 2010 C&P Service Bulletin, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran was as likely as not exposed to herbicide agents while he was stationed in Thailand during the Vietnam era. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As previously noted, the post-service medical evidence shows that the Veteran has diabetes mellitus. That disorder is listed as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). There is no affirmative evidence showing that the Veteran's diabetes was not caused by herbicide exposure. The evidence of a current diagnosis of diabetes, coupled with the Veteran's in-service herbicide exposure, satisfies the presumptive service-connection criteria of 38 C.F.R. § 3.309(e). Therefore, the Board concludes that service connection for diabetes mellitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus type II is granted. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs