Citation Nr: 1807808 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-27 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1971. This matter come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decature, Georgia, and has been subsequently transferred to the Atlanta, Georgia, RO. In October 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing; a transcript of the hearing is of record. FINDINGS OF FACT 1. Resolving the benefit of the doubt in favor of the Veteran, the Board finds the Veteran was present within the land borders of Vietnam during the Vietnam era. 2. There is a diagnosis of diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veteran Claims Assistance Act of 2000 As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2017). In the instant case, the claim for entitlement to service connection for diabetes mellitus, type II, has been granted herein. As such, any deficiencies with regard to VCAA for this issue is harmless and non-prejudicial. II. The Merits of the Claim Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service 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 order to establish service connection, the evidence must generally 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, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. For purposes of § 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303 (b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303 (a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303 (d). Diabetes mellitus are listed as a chronic condition under 38 C.F.R. § 3.309(a). Therefore, diabetes mellitus can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, such may be presumed to have been incurred in service if it becomes manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection may be established on a presumptive basis for a disability resulting from exposure to an herbicide agent. 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 an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. §§ 3.307(a)(6)(iii); VAOPGCPREC 7-93 (1993), 59 Fed. Reg. 4752 (1994). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus (Type II), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), hairy cell leukemia and other chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). These diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to a herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that he was exposed to Agent Orange herbicides while serving in Vietnam from July to September 1970. Specifically, he claims that he was stationed in South Korea when he received temporary orders to Vietnam. He stated he was with the 8th Radio Field Station in Phu Bai, Vietnam. The Veteran testified that he received his pay from the 64th Finance Section in Da Nang, Vietnam. He also indicated he served in Japan on temporary orders. A June 2009 private medical record contained a diagnosis of diabetes mellitus. A September 2009 VA examination reported contained a diagnosis of diabetes mellitus. Thus, there is a diagnosis of diabetes mellitus. The issue then, is whether there was Agent Orange exposure. The Veteran's service personnel records contain conflicting information. The Veteran's DD-214 and other personnel records indicate there is no Vietnam service. These records also do no document any service in Japan, including temporary orders. Military pay vouchers, however, indicate that there is Vietnam service. A July 1970 Military Pay Voucher indicates that the Veteran was entitled to Hazardous Fire Pay. The APO for payment was located in Korea. A Military Pay Voucher for August 1970 indicates that the Veteran was entitled to Hazardous Fire Pay. The APO for payment was located in Vietnam. It was noted that the Veteran was to depart Vietnam in September 1970. A September 1970 Military Pay Voucher indicates that the Veteran was entitled to Hazardous Fire Pay. The APO for payment was located in Korea. The Veteran's service treatment records indicate service in Japan, although there are no entries for the time period the Veteran alleges he was in Vietnam. The Board finds that the Veteran was temporarily stationed in Vietnam. The service personnel records indicating such service align with the Veteran's competent and credible testimony. Additionally, it is noted that the Veteran testified to service in Japan, but this is not noted in his personnel records. It is however, indicated in his service treatment records. Thus, it is clear that temporary service in another country would not necessarily be noted in this Veteran's personnel records. Resolving all doubt in favor of the Veteran, and in accordance with his particularly credible testimony, Vietnam service is found. As there is a diagnosis of diabetes mellitus, presumptive service connection is warranted. Accordingly, the Board finds service connection for diabetes mellitus, type II, is warranted on an herbicide presumptive basis. 38 C.F.R. §§ 3.307, 3.309. ORDER Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs