Citation Nr: 1806302	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  10-43 767	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for diabetes mellitus, type II (DM).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Moore, Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Navy from November 1964 to December 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

In November 2014, the Board denied entitlement to service connection for DM.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In July 2015, the Court issued an order granting a July 2015 Joint Motion for Remand (JMR).  The Board subsequently remanded the claim in September 2015 and July 2017.  The case has once again been returned to the Board for adjudication.


FINDINGS OF FACT

1.  The Veteran was exposed to an herbicide while serving aboard the U.S.S. Boston at DaNang Harbor in April 1967 and May 1967.  

2.  The competent evidence establishes a current diagnosis of DM.


CONCLUSION OF LAW

DM is presumed to have been incurred in service.  38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Veteran's claim is granted herein, any error related to the duties to notify and assist is moot.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran claims that he has DM that is due to his service aboard the U.S.S. Boston in the waters off of Vietnam.  Specifically, he claims that he transported people and supplies to shore while his ship was docked at DaNang Harbor.  He, therefore, believes service connection is warranted on a presumptive basis.

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).

Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to an herbicide during that service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017).  Guidance from the Veterans Benefits Administration (VBA) notes that ships that docked to shore or pier in Vietnam presumably allowed crewmembers to go ashore.  Therefore, a veteran aboard such a ship at the time of docking would only need to provide a credible lay statement of having gone ashore to be eligible for the presumption of herbicide exposure.  See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated January 2, 2018), VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b.

A review of the Veteran's personnel records reveals that he served aboard the U.S.S. Boston from April 15, 1966 to March 18, 1968.  During several months in 1967, the U.S.S. Boston served in the official waters of Vietnam and specifically anchored at least three times in DaNang Harbor, including April 30, 1967, May 17, 1967, and June 18, 1967.  See Administrative decision, May 2017.  VBA's current list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents indicates that the U.S.S. Boston docked in-port at DaNang Harbor on April 30, 1967 and May 17, 1967.  As such, the Veteran only needs to provide a credible lay statement of having gone ashore during these dockings to establish presumptive herbicide exposure.  

The Veteran has consistently reported that part of his duties during the dockings included taking personnel and supplies ashore.  There is nothing in the record to contradict this assertion.  The Board notes that May 2017 and November 2017 administrative decisions cite a lack of notation in the deck logs affirmatively stating that crewmembers disembarked during the docking.  However, this lack of definitive evidence is not affirmative evidence that crewmembers did not leave the ship.  Significantly, the M21-1 contemplates a lack of such evidence in the service records by allowing for a veteran's lay statement to establish having gone ashore.  As there is no evidence to contradict the Veteran's reports of having gone ashore while docked in DaNang Harbor, the Board finds that exposure to herbicides may be conceded.

The Board has reviewed the medical evidence and notes that the Veteran has been diagnosed with and treated for DM since at least November 2010.  See, e.g., private treatment record, December 2015.  This is a condition that is considered presumptively service connected for veterans who have been exposed to herbicides.  38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017).  

As the Veteran is presumed to have been exposed to herbicides in service and has a current diagnosis of DM, service connection is warranted for this claim.  The claim of entitlement to service connection for DM is granted. 



ORDER

Entitlement to service connection for DM is granted.



____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs