Citation Nr: 1801562 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-04 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide agent exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In October 2017, the Veteran testified before the undersigned at a video-conference Board hearing. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. In February 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran by letter dated February 19, 2012, that he wished to withdraw the claim for entitlement to service connection for tinnitus. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicide agents while stationed in Thailand. 3. The Veteran's current diabetes mellitus, type II is presumed to be causally and etiologically related to in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for tinnitus by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for diabetes mellitus, type II, as due to herbicide agent exposure, have been met. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In a letter dated February 19, 2012, the Veteran withdrew his appeal regarding the issue of entitlement to tinnitus. As there remains no allegation of error of fact or law for appellate consideration regarding this issue, the Board does not have jurisdiction to review the claim. Accordingly, the issue must be dismissed. Diabetes Mellitus, Type II Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). Service connection can also be established based on herbicide agent exposure. See 38 C.F.R. § 3.307(a)(6). If a veteran is presumed to have been exposed to herbicide agents or the evidence with respect to exposure is at least in equipoise, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). Diabetes mellitus, type II is included in the presumptive list. The Veteran's DD Form 214 reflects that he was stationed in Thailand during the Vietnam Era. VA procedures providing guidance for verifying exposure to herbicide agents in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in the "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide agent 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 agent exposure. At his October 2017 hearing before the Board, the Veteran stated that he served as a weapons mechanic and was station in Thailand during the Vietnam Era. To that end, the Veteran asserted that he was stationed at Royal Korat Air Force Base. He testified that he frequently worked on aircraft while on areas on a runway that were located within close proximity to the perimeter line. Moreover, the Veteran stated that he frequently travelled through the perimeter to access bomb dumping locations that were located a few miles away from base. Consistent with controlling law, the RO undertook to determine whether the Veteran's service likely exposed him to herbicide agents. The RO contacted the Joint Services Records Research Center, which found that it could not verify that the Veteran was exposed to herbicide agents. Nevertheless, the Board has considered the Veteran's testimony and finds that the evidence is at least in equipoise that he was, based on his duties and his duty location, exposed to herbicide agents while in Thailand. He served on an air base where exposure was possible and he described duties that brought him in close proximity to the perimeter of the base. These duties are consistent with his MOS. Importantly, there is no reason to doubt the credibility of the Veteran's testimony. As such, the Board acknowledges herbicide agent exposure on a facts-found basis. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C.A. § 5107(b) (West 2014). Here, the Board finds that the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents based on his perimeter service while stationed in Thailand. As the record reflects that the Veteran has a current diagnosis of diabetes mellitus, type II, service connection for diabetes mellitus, type II is warranted based on the presumptions governing service connection based on herbicide agent exposure. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."); see also 38 C.F.R. §§ 3.307, 3.309. ORDER Entitlement to service connection for tinnitus is dismissed. (CONTINUED ON NEXT PAGE) Entitlement to service connection for diabetes mellitus, type II, as due to herbicide agent exposure, is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs