Citation Nr: 1809947 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 08-06 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for Type II diabetes mellitus (diabetes). REPRESENTATION Appellant represented by: Polly Murphy, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and the appellant ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran had active military service from August 1969 to February 1980. He died in June 2016. The Veteran's surviving spouse has been properly substituted as the appellant in this case. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a March 2010 decision, the Board reopened the claim of entitlement to service connection for diabetes. The Board denied the Veteran's claim for service connection for diabetes in a June 2015 decision. The Veteran appealed the Board's June 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Memorandum Decision, the Court reversed the Board's finding that the Veteran's lay evidence regarding visits to Thailand were not credible. The Court held that the Board must consider the Veteran's lay statements credible. The Court vacated the portion of the Board decision that denied service connection for diabetes and remanded that issue to the Board for readjudication consistent with the Memorandum Decision. The undersigned provided hearings for the Veteran and appellant in January 2010 and May 2012. Copies of the transcripts are of record. In August 2017 the appellant perfected additional appeals. She has requested a hearing with regard to these new appeals. As she has not yet been provided the requested hearing, these appeals are not yet ready for Board review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran was as likely as not exposed to herbicides while on TDY to an air base in Thailand. 2. The Veteran had diabetes, which is presumed related to service. CONCLUSION OF LAW Diabetes was incurred as a result of active service. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserted that his service in Thailand, Guam, and Okinawa led to herbicide exposure, which then led to the development of diabetes. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If a Veteran was exposed to an herbicide agent during the Vietnam Era (beginning on January 9, 1962 and ending on May 7, 1975), while service on active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 (2012) and 38 C.F.R. § 3.307(a)(6)(iii) (2017) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 (2012) and 38 C.F.R. § 3.307(d) (2017) are also satisfied. 38 C.F.R. § 3.309(e) (2017). In such circumstances, service connection may be granted on a presumptive basis for any disease listed in 38 C.F.R. § 3.309(e). Diabetes is listed in 38 C.F.R. § 3.309(e). VA has established a procedure for verifying a Veteran's exposure to herbicide agents in Thailand during the Vietnam Era. See VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5 (herein M21-1); Compensation and Pension Service Bulletin, May 2010. VA "has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes," as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." The May 2010 Compensation and Pension Service Bulletin further states that "[s]pecial consideration of herbicide exposure on a facts found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases" and that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." Under the procedures outlined in the M21-1, if a Veteran served at certain Royal Thai Air Force bases (RTAFBs) during the Vietnam Era and, pursuant to their duties operated near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be conceded on a direct or facts-found basis. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this matter, service connection is warranted for diabetes for the following reasons. First, VA medical evidence dated since 2000 documents that the Veteran was diagnosed with diabetes. Second, evidence indicates that it is at least as likely as not that the Veteran spent time at U-Tapao, Thailand, which is among the RTAFBs listed in the M21-1. And third, the evidence of record supports the Veteran's contention that he was exposed to herbicides while serving in Thailand. In a December 2007 statement, the Veteran asserted that he was exposed to Agent Orange in Okinawa and Thailand. At his January 2010 hearing the Veteran asserted that he was exposed to herbicides in Okinawa, Thailand, and Guam. He said that he saw herbicides being sprayed next to the airfields. At his May 2012 hearing, the Veteran stated that he flew into two air bases in Thailand. He asserted that there was herbicide spraying on the airstrips in both Thailand and Guam. In May 2010, the Veteran reported that his MOS was Aircraft Mechanic. He stated that he was assigned to 376th Organizational Maintenance Squadron (OMS). In a May 2013 statement in support of claim the Veteran reported that he served at Beale AFB, California and Kadena AFB, Okinawa, Japan from 1970 to 1972. The Veteran stated that he was TDY in and out of U-Tapao, Thailand, Clark AFB, Philippines, and Anderson AFB, Guam during that time. He reported that he would remain overnight with his aircraft when at U-Tapao and would sometimes be parked near the perimeter. He stated that if he needed to relieve himself he would walk to the fence and do it there. N. P., a fellow veteran, stated in February 2014 that he was assigned to the 376th Organizational Maintenance Squadron while in Okinawa and Thailand with the Veteran. N.P. said that he and the Veteran made a number of trips, to U-Tapao RTAFB during that time from June 1971 until the Veteran left Okinawa in November 1972. He stated that they flew from Okinawa to refuel SR-71 aircraft and would land at U-Tapao. He reported that at U-Tapao, they stayed aboard their aircraft overnight at the end of the runway adjacent to the perimeter fence of the airfield. He stated that they would walk to the fence and relieve themselves and stretch their legs. He reported that they were required to be in or near the aircraft due to the classified radio equipment aboard. He noted that they were crew chiefs and that was their responsibility. N.P. asserted that the vegetation beneath their feet as they walked on the perimeter had been sprayed with Agent Orange and herbicides to the best of his knowledge. He asserted that although they were not members of any airbase security unit, they were nonetheless exposed to herbicides by walking on the airbase perimeter for the purpose of relieving themselves. The Board notes that the Veteran's service personnel records are not thorough. An April 1971 Airman Performance Report states that the Veteran had completed several TDY's. Yet the records do not document the TDY locations. This document further notes that the during the periods of TDY, numerous combat crew members commented on the Veteran's outstanding attitude and ability. The statement that the Veteran dealt with aircraft combat crew members is supportive of the Veteran's reports that he was at times at the airbases in Thailand. The Board considers the statements of the Veteran and N.P. that they were at airbases in Thailand and at times walked along the perimeter of the airbases to be credible. Considering the foregoing evidence and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's duties placed him in Thailand, on RTAFBs, and around the perimeters of such bases. Thus, the Veteran is presumed to have been exposed to herbicides . 38 U.S.C. § 5107(b) (2012). Based on this finding, diabetes is presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. As no evidence of record indicates that an intercurrent cause led to diabetes, service connection for diabetes is warranted. ORDER Service connection for diabetes is granted. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs