Citation Nr: 18160161 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-39 534 DATE: December 26, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. 2. The Veteran’s diabetes mellitus, type II is presumed to be related to his herbicide exposure while in Vietnam. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1961 to April 1966 and from June 1966 to June 1987. This matter comes before the Board on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A videoconference hearing was held in July 2018 before the undersigned Veterans Law Judge. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Generally, to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a Veteran was exposed to herbicides during active military, naval, or air service, certain diseases shall be service-connected 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 that disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). A Veteran who, during active military, naval, or air 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 during such service to herbicides, unless there is affirmative evidence to establish that the Veteran was not exposed to herbicides during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The list of presumptive diseases for exposure to herbicides includes diabetes mellitus Type II. See 38 C.F.R. § 3.309 (e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus, type II The Veteran contends that he has diabetes mellitus, type II because of his herbicide exposure during service in the Republic of Vietnam. The Veteran’s military personnel records indicated that in January 1967, the Veteran was awarded the Vietnam Service Medal and Ribbon with one bronze star for service on board the USS Kitty Hawk (CVA-63) in the Vietnam theater of operations during the qualifying period of February 25, 1965. In August 1967, the Veteran was authorized to wear the Vietnam Service Medal and Ribbon with one bronze star for service in the Vietnam theater of operations during the qualifying period of July 1, 1966. The Veteran’s multiple Certificates of Release or Discharge from Active Duty (DD Form 214s) indicated that the Veteran received the Vietnam Service Medal with 4 bronze stars; the Republic of Vietnam Campaign Medal with Device; the Republic of Vietnam Meritorious Unit Citation (Gallantry Cross color with Palm and Frame) and the Vietnam Service Medal. The Board acknowledges that the Republic of Vietnam Gallantry Cross is a military decoration of the former Government of South Vietnam (Republic of Vietnam). The medal was awarded to military personnel in recognition of deeds of valor or heroic conduct while in combat with the enemy. In the January 2015 Notice of Disagreement (NOD), the Veteran asserted that he served in Da Nang, Vietnam for one day in April 1967. During the July 2018 hearing, he testified that in 1967, he was stationed aboard the USS Kitty Hawk and was tasked with testing “all the missiles that were flying on the aircraft”. The Veteran testified that he was ordered to “go into Da Nang and find out if [he] could be of assistance”. The Veteran testified that he boarded a helicopter and landed in Da Nang to assess the functionality of some aircraft missiles. The Veteran testified that he was “going in [to Da Nang] on several other occasions”. According to the Veteran, “[his] boss told [him] to get your tools, get everything ready, we’re going, and that’s what [he] did”. The Veteran testified that “in those days, you didn’t ask questions, you just went.” The Veteran testified that he began to develop diabetes mellitus “somewhere in the 90’s” and began taking medication for the condition in 1995. The Veteran’s post-service medical records indicated that he was diagnosed with diabetes mellitus, type II in August 2009. A June 2015 Personnel Information Exchange System (PIES) response indicated that VA was unable to determine whether the Veteran served in the Republic of Vietnam and furnished all pertinent documents to the RO to assist in making a determination regarding the Veteran’s service in Vietnam. After carefully reviewing the evidence of record, the Board concludes that the Veteran’s diabetes mellitus, type II was diagnosed after separation. Pursuant to 38 C.F.R. § 3.309(e), diabetes mellitus is included among the list of diseases in which service connection is presumed if the Veteran served in Vietnam and was diagnosed with any of the specified diseases, at any time after separation. The condition also manifested to a compensable degree during his lifetime. See 38 C.F.R. § 4.104, Diagnostic Code 7005. With regards to the Veteran’s assertions, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this appeal, the Veteran’s competent and credible testimony, in addition to the medals awarded for his service in the Vietnam theater of operations, are persuasive in establishing that the Veteran served in Vietnam and that his herbicide exposure is presumed. (continued on next page) In light of the foregoing, the Board is satisfied that the criteria for the establishment of presumptive service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.307, 3.309(e). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel