Citation Nr: 18145471 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-22 309 DATE: October 29, 2018 ORDER The claim for service connection for diabetes mellitus type II is reopened. Entitlement to service connection for diabetes mellitus type II, as due to herbicide exposure, is granted. FINDINGS OF FACT 1. In an unappealed March 2011 rating decision, the RO denied service-connection for diabetes mellitus. 2. The evidence received since the March 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus. 3. The Veteran's ship operated on Vietnam's coastal waters for extended periods with evidence that the Veteran went aboard smaller craft from the ship that delivered troops ashore, and therefore he is presumed to have been exposed to herbicides in service. 4. The Veteran has been diagnosed with diabetes mellitus type II. CONCLUSIONS OF LAW 1. The March 2011 rating decision denying service connection for diabetes mellitus type II is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for diabetes mellitus type II has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Evidence Intake Canter, which confirmed and continued the previous denial of service connection for diabetes mellitus. Jurisdiction is with the VA Regional Office (RO) in Cheyenne, Wyoming. Service connection for diabetes mellitus type II was initially denied in a March 2011 rating decision. The Veteran did not appeal that decision, nor did he submit new and material evidence within one year. As such, the decision became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). Since that decision, new and material evidence has been associated with the claims file; in particular, additional information shows a diagnosis of type II diabetes mellitus as well as additional statements regarding his Vietnam service. Accordingly, this claim is reopened. Entitlement to Service Connection for Diabetes Mellitus Type II The Veteran contends that he is entitled to service connection for diabetes mellitus as due to his in-service exposure to herbicides in Vietnam. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes diabetes mellitus. See 38 C.F.R. § 3.309(a). Service connection may also be granted 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including diabetes mellitus type II, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that, with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). Service in Vietnam includes not only service on land, but also service on ships that sent crew members ashore when the claimant was stationed aboard the ship at the time. See 38 C.F.R. § 3.307(a)(6)(iii). Exposure to an herbicide can be conceded if there is evidence which shows that the Veteran's ship sent crew members ashore during the time the Veteran was stationed aboard the ship, provided that the Veteran submits a statement indicating that he/she went ashore from the ship. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. The Veteran’s service personnel records reflect that she served aboard the U.S.S. Iwo Jima from 1966 to 1968. He stated that assisted in supply deliveries and troop transport at least 6 to 12 times on the shores of Da Nang and Qui Nhon Bay, and therefore stepped foot in Vietnam. According to the updated Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents list, the U.S.S. Iwo Jima docked to pier at Da Nang in October 1969 and May 1971, and operated as troop transport with helicopters and smaller vessels transporting troops on and off shore for amphibious assaults from May 1965 to August 1972. As indicated, the Veteran served on the U.S.S. Iwo Jima during this time frame and he has personally indicated that he went ashore with the smaller boats transporting troops and supplies. As the RO has done, the Board finds that the evidence is sufficient to concede exposure to herbicides in service. The remaining question is whether the Veteran has been diagnosed with diabetes mellitus type II, as the Board notes that there is conflicting evidence as to whether a diagnosis of type I or type II is present. A report from Memorial Hospital dated in February 1994 reflects that the Veteran entered the hospital with blood sugar of approximately 600 and was found to have insulin dependent diabetes. Type I or Type II diabetes was not indicated in the report. Treatment records from private physicians Dr. W. and Dr. R. reflect diagnosis of diabetes mellitus type I. A May 2005 statement from Dr. W. reflects that the Veteran had been her patient for approximately 10 years, and had type I insulin dependent diabetes mellitus for the past 11 years. A November 2013 emergency room report reflects a past medical history of insulin dependent (type II) diabetes with insulin pump. On VA examination in September 2014, the examiner noted that the Veteran was diagnosed with diabetes after sudden weight loss and a finding of blood sugar greater than 600. The examiner indicated diagnosis of diabetes mellitus type II with onset in 1992. It was managed by diet restriction and insulin injection more than once daily. However, in a November 2014 addendum opinion, the VA examiner noted that the Veteran had explained that when he was initially diagnosed with diabetes, he had been treated with oral medication. In reviewing the records, two endocrinologists (Dr. W. and Dr. R.) had opined that the Veteran had type I diabetes. The examiner indicated that the Veteran had type I, and not type II, diabetes mellitus. A December 2014 report from private physician Dr. C. reflects that he had been treating the Veteran for several years, and he noted that he Veteran had type II diabetes. In a separate March 2015 addendum, the 2014 VA examiner indicated that he reviewed the conflicting evidence. He found the opinion of two endocrinologists, Dr. W. and Dr. R., who specialize in diabetes, to outweigh the opinion of family practice physician Dr. C. In addition, the laboratory findings regarding C peptide levels confirmed a diagnosis of type I diabetes. VA treatment records indicate a past medical history of type II diabetes mellitus. A May 2018 endocrinology report reflects type II diabetes mellitus since 2000, though a previous note stated type I due to undetectable C peptide. In this case, while the VA examiner accepted Dr. W. and Dr. R.’s records as more probative as to diagnosis, the Board finds no reason to reject the statement from the Veteran’s treating physician solely because he is not an endocrinologist. Moreover, the examiner did not provide any rationale regarding why the Veteran’s C peptide levels confirmed diagnosis of diabetes mellitus type I. The remaining treatment records indicate both diagnosis of type I and type II diabetes mellitus, and a type was not assigned at the time of initial diagnosis in 1994. For the foregoing reasons, the Board finds the medical evidence to be of relative equipoise regarding whether the Veteran has type I or type II diabetes mellitus. Accordingly, the Board resolves all reasonable doubt in the Veteran’s favor, and finds that he has type II diabetes mellitus. Given that treatment records also reflect that the Veteran’s diabetes mellitus has been managed by use of insulin, his diabetes has manifest to a compensable level. See 38 C.F.R. § 4.119, Diagnostic Code 7913. As the Veteran has type II diabetes mellitus that has manifested to a compensable level for VA purposes as noted above, diabetes mellitus shall be presumed to be due to exposure to certain herbicide agents. See 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, entitlement to service connection for diabetes mellitus type II is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel