Citation Nr: 1717261 Decision Date: 05/18/17 Archive Date: 06/05/17 DOCKET NO. 11-24 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include from exposure to herbicides. 2. Entitlement to service connection for coronary artery disease, to include from exposure to herbicides. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active military service from July 1955 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas, which, in pertinent part, denied service connection for coronary artery disease and diabetes mellitus, type II, as a result of exposure to herbicides. The Veteran testified before the undersigned at a Board hearing in October 2014. A transcript of the hearing has been reviewed and associated with the claims file. This matter was before the Board in January 2015, at which time it was remanded for additional evidentiary development. The issues of entitlement to service connection for prostate cancer and posttraumatic stress disorder (PTSD) have been raised by the record in the September 2011 Form 9 and were previously referred to the Agency of Original Jurisdiction (AOJ) in the January 2015 Board remand, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). 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). FINDINGS OF FACT 1. The Veteran has diabetes mellitus, type II, which is presumed to be related to exposure to herbicide agents during his active military service in Thailand. 2. The Veteran has coronary artery disease, status post bypass surgery, which is presumed to be related to exposure to herbicide agents during his active military service in Thailand. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). 2. The criteria for service connection for coronary artery disease, status post bypass surgery, have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In this decision, the Board grants entitlement to service connection for diabetes mellitus, type II, and coronary artery disease. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act (VCAA) of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014), is necessary. Legal Criteria Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2016). The Veteran has claimed exposure to herbicides while stationed in Thailand. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). 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 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 M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.b. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Factual Background and Analysis The Veteran has been diagnosed with diabetes mellitus, type II, and maintains a diet in order to manage his diabetes. See 01/06/2011, VBMS, Medical Treatment Record-Non-Government Facility, p. 39; 11/13/2014, Virtual VA Documents, Hearing Transcript, p. 6. He has also been assessed with coronary artery disease, status post bypass surgery, and requires continuous medication. See 01/06/2011, VBMS, Medical Treatment Record-Non-Government Facility, pp. 57, 63; 11/13/2014, Virtual VA Documents, Hearing Transcript, p. 11. The Veteran asserts that his diabetes mellitus, type II, and coronary artery disease were incurred in service due to Agent Orange exposure while stationed in Thailand. A review of the Veteran's military personnel records reveals that he was stationed in Udorn, Thailand, from October 1971 to October 1972. See 02/10/2011, VBMS, Military Personnel Record, pp. 8, 22-24. His DD Form 214 demonstrates that his military occupational specialty was an Avionic Instrument Systems Technician and Training Technician. See 10/28/1978, VBMS, Certificate of Release or Discharge From Active Duty (e.g., DD 214, NOAA 56-16, PHS 1867). In the Veteran's Form 9 received in September 2011, he indicated that he worked near the back perimeter of the base. Furthermore, he testified before the undersigned at a hearing in October 2014 and stated that he launched F-4's at night and then recovered them in the morning. His workstation was located at one of two perimeters around the base at Udorn. The Board finds that the Veteran is competent to report service at the perimeter of the base while stationed in Thailand. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also finds such statements to be credible. The evidence of record clearly establishes that the Veteran had service at one of the designated Thailand military bases. He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. The Veteran has confirmed that he was at the perimeter of the military base. In light of the above evidence, the Board finds that the Veteran had service in Udorn, Thailand, and his duties placed him on the perimeter of the air force base. As such, he is presumed to have been exposed to herbicide exposure. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Post-service treatment records confirm the Veteran's diagnoses of diabetes mellitus, type II, and coronary artery disease. Therefore, service connection is warranted for diabetes mellitus, type II, and coronary artery disease on a presumptive basis due to herbicide exposure. With respect to the requirement that the disabilities manifest to a degree of 10 percent disabling as set forth under 38 C.F.R. § 3.307(a)(6)(ii), the Board finds that the evidence is at least in equipoise on this point. Indeed, to achieve a 10 percent rating for diabetes mellitus pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, diabetes must be manageable by a restricted diet. Here a February 2010 treatment note indicates a recommendation that the Veteran watch his diet. Regarding coronary artery disease, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005, a 10 percent rating applies when continuous medication is needed to treat the disease. Based on the Veteran's October 2014 hearing testimony, this requirement appears to be met. In sum, resolving all doubt in favor of the Veteran, the weight of the evidence establishes that the Veteran has diagnoses of diabetes mellitus, type II, and coronary artery disease, and that he had presumed herbicide exposure during service. As such, service connection is warranted for the claimed disabilities on a presumptive basis. 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e). ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for coronary artery disease is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs