Citation Nr: 1808028	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  15-44 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, Type II.

2.  Entitlement to service connection for Parkinson's disease.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

RLBJ, Associate Counsel
INTRODUCTION

The Veteran served on active duty in the United States Navy from January 1952 to November 1973. 

These issues arrive before the Board of Veterans' Appeals from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Oakland, California. 

In December 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board videoconference hearing.  A copy of the hearing transcript has been associated with the claims folder.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The Veteran's second Vietnam Service Medal was received for in-country duty requirement in the Republic of Vietnam sometime between September 1971 and June 1972. 

2. The competent and credible evidence of record demonstrates that the Veteran was likely exposed to herbicide agents, including Agent Orange, while attending briefings at U.S. Air Force bases in the Republic of Vietnam.

3. The Veteran's current, diagnosed diabetes mellitus, Type II, is presumed to have been incurred as a result of herbicide exposure.

4. The Veteran's current, diagnosed Parkinson's disease is presumed to have been incurred as a result of herbicide exposure.


CONCLUSIONS OF LAW

1. Affording the Veteran the benefit of the doubt, the criteria for service connection for diabetes mellitus, Type II, have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).

2. Affording the Veteran the benefit of the doubt, the criteria for service connection for Parkinson's disease have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duty to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The notice requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103 (a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or 
 "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

In light of the favorable decision(s) to award service connection for diabetes mellitus, Type II, and Parkinson's disease, a detailed discussion regarding how VA satisfied its duties to notify and to assist pursuant to the VCAA is not required for these issues.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 .

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  See 38 C.F.R. § 3.303 (b).  The chronicity provision of 38 U.S.C.A. § 3 .303 (b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303 (d). 

Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). 

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

III. Analysis, Diabetes Mellitus and Parkinson's Disease

In April and May 2010, respectively, the Veteran submitted his entitlement claims for service connection for Parkinson's disease and diabetes mellitus, Type II. 

In April 2010, Dr. S notified VA that the Veteran was undergoing treatment for Parkinson's Disease.  In June 2010, provider(s) at McClellan Air Force Base noted diagnoses for Parkinson's disease and diabetes mellitus, Type II.  In March 2011, a VA provider confirmed the Veteran maintained diagnoses for Parkinson's disease and diabetes mellitus, Type II.   Consequently, the Veteran's claims clearly satisfy the first requisite element of a service-connection claim, which is the presence of current disabilities.  Shedden, 381 F.3d at 1167.

A presumption may arise, and service connection may be granted, for certain diseases, including Parkinson's disease and diabetes mellitus, Type II, based on herbicide exposure during service in the Republic of Vietnam.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). 

Applicable law also provides that a Veteran who, during active service, served during a designated time period in the Republic of Vietnam shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service.  38 U.S.C.A. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).

In October 2010, the Veteran supplied VA his personal log, covering June 1970 to July 1972.  Within the log, the Veteran describes travel in the Republic of Vietnam for briefings and participation in conferences.

In February 2011, VA received reply from the Joint Services Record Research Center (JSRRC), regarding CINCPAC and PACOM ELINT service and duties within the Republic of Vietnam.  Therein, it was noted that the Veteran received the Vietnam Service Medal twice.  The first award was for service on a Navy submarine that did not operate in the inland waterways of the Republic of Vietnam.  The JSRRC response specifically notes that's the Veterans DD-214 indicates he received a second award.  The Veteran's second award of the Vietnam Service Medal was for bi-monthly meetings at overseas locations.  The JSRRS team member concluded that the overseas locations included temporary service on land in Vietnam, Thailand, Laos and/or Cambodia.  Notably, there is nothing from JSRRC that would contradict the Veteran's assertions that he was awarded his second VSM for service in Vietnam. 

In April 2015, the Veteran provided VA a statement in support.  Along with his statement, the Veteran provided documentation regarding the role his unit, PACOM ELIT, played in the Republic of Vietnam.

In April 2015, VA received a statement from Major RE, retired.  Major RE posits that the Veteran was the Chief of the Estimates branch, and he (along with other officers) traveled within the Republic of Vietnam to present classified briefings to the USAF in 1972.  

In December 2017, the Veteran provided sworn testimony to the undersigned VLJ.  During that testimony, the Veteran replied, "I have, indeed" when asked if he stepped foot in Vietnam.  When questioned by the undersigned VLJ, the Veteran replied that he attended briefings at three or four different Air Force Bases within the Republic of Vietnam in 1971 and 1972.  The undersigned fines the Veteran's report of service in Vietnam is highly credible along with his contemporaneous written log explaining the nature of his service in Vietnam.  

The Board finds the evidence of record contains sufficient evidence, circumstantial and not, to support the Veteran's boot-on-the-ground presence in the Republic of Vietnam.  Considering the Veteran's training, military specialty, and the demands of his position during the Vietnam conflict, it seems reasonable to believe that the Veteran would have been required to travel to various Air Force bases located in the Republic of Vietnam.  

After thorough review and consideration of the Veteran's claims file, the Board finds that the evidence is at least in equipoise as to whether the Veteran was exposed to herbicides while serving boots-on-the-ground in the Republic of Vietnam.  In addition, he currently has diabetes mellitus, type II and Parkinson's disease.  Therefore, the Board finds that service connection for diabetes mellitus and Parkinson's disease is warranted on a presumptive basis.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e).

						

ORDER

Entitlement to service connection for diabetes mellitus, Type II, is granted.

Entitlement to service connection for Parkinson's disease is granted. 



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs