Citation Nr: 18112333 Decision Date: 06/19/18 Archive Date: 06/19/18 DOCKET NO. 17-01 131 DATE: June 19, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. An unappealed March 2009 rating decision denied the Veteran’s claim for entitlement to service connection for diabetes mellitus, type II. 2. The evidence associated with the claims file after the March 2009 rating decision denying service connection for diabetes mellitus, type II is new, not cumulative and redundant of the evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 3. Based on the Veteran’s competent and credible assertion of having served near the perimeter of the Don Muang, Ubon, and Nakhon Phanom Royal Thai Air Force Bases from April 1968 to May 1968, and resolving doubt in his favor, the Veteran is found to have been exposed to herbicides during active service. 4. The Veteran has diabetes mellitus, type II which is presumed related to his exposure to herbicides during his active service in Thailand. 5. The Veteran has CAD which is presumed related to his exposure to herbicides during his active service in Thailand. CONCLUSIONS OF LAW 1. The March 2009 rating decision denying entitlement to service connection is final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for diabetes mellitus, type II has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for CAD, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1960 to July 1980. In May 2018, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the transcript has been associated with the claims file. Service Connection 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, 1131; 38 C.F.R. § 3.303 (a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be demonstrated for a disease diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, the law provides that “a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam 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 U.S.C. § 1116 (f); see also 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) and coronary artery disease shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). All veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. The Veteran has maintained that he was exposed to herbicides in Vietnam. The Veteran’s service personnel records fail to confirm this service. Thus, a grant on this basis is not warranted. The Veteran also claims exposure to herbicide agents while stationed at the Don Muang, Ubon, and Nakhon Phanom Royal Thai Air Force Bases in Thailand. Service on these bases is corroborated by the Veteran’s service personnel records. VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (“M21-1MR”). Specifically, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand. The herbicide use was intended to eliminate vegetation and ground cover for base security purposes. VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Special 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. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. These provisions apply only during the Vietnam era. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Entitlement to service connection for diabetes mellitus, type II, and CAD, to include as due to herbicide exposure In this case, the private medical evidence of record shows diagnoses of diabetes mellitus and coronary artery disease. Accordingly, the record shows that the Veteran has a current disability of diabetes mellitus and of coronary artery disease, and if the Veteran is found to have been exposed to an herbicide agent during military service, presumptive service connection is warranted for the Veteran’s diabetes mellitus and coronary artery disease. The Veteran’s DD Form 214 lists his MOS as an Accounting and Finance Superintendent. This is not one of the MOSs listed in the M21-1MR as presumed to have been performed at or near an air base perimeter. However, the Veteran has indicated that part of his job required him to go to and from work and to other locations on the bases through the perimeters, crossing them numerous times. He also indicated that at one point, his “hooch” or military dwelling was near the perimeter of the base. See May 2018 Hearing Transcript. As previously mentioned, the Veteran’s service personnel records confirm service at the Don Muang, Ubon, and Nakhon Phanom Royal Thai Air Force Bases in 1968. They also demonstrate that he was responsible for the travel accounting of all obligations incurred by the three bases in Thailand. Further, there are notations showing that the Veteran volunteered for temporary duty assignments (TDY) to assist other offices with accounting. These facts corroborate the Veteran’s accounts of his work and its requirement of movement to other locations on the bases. In summary, the evidence of record shows that the Veteran served during the Vietnam era at the Don Muang, Ubon, and Nakhon Phanom Royal Thai Air Force Bases. The service records do not clearly show that the Veteran was exposed to herbicides while stationed in Thailand. However, the Veteran has presented testimony and there is credible evidence showing that he was required to travel from base to base for work and lived near the perimeters of one or more of these bases. Additionally, the Veteran’s service personnel records show that he was responsible for the travel accounting for all three bases and volunteered to go TDY to assist other offices, both of which required travel along the perimeter. The Veteran is competent to report his activities while serving in Thailand. The Board finds no basis in the record to question the Veteran’s credibility regarding his statements. The service personnel records portray the Veteran as an individual of good moral character who was outstanding in his work. That he would travel among the bases frequently is consistent with the circumstances and character of his service and his MOS as an accountant for all three bases, as demonstrated in the service records. See 38 U.S.C. § 1154 (a). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. In the present case, the Veteran has presented “other credible evidence” that he served at or near the perimeter of the Don Muang, Ubon, and Nakhon Phanom Royal Thai Air Force Bases. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). Any reasonable doubt regarding the accuracy of the Veteran’s statements is resolved in the Veteran’s favor, and the Board finds that the Veteran was exposed to herbicides during his active service. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s testimony, taken in conjunction with the information regarding herbicide use in Thailand, supports a finding that the Veteran was exposed to herbicides during his active service. The Veteran’s post-service medical records reflect diagnoses of diabetes mellitus and coronary artery disease. Therefore, service connection for diabetes mellitus and coronary artery disease is warranted on a presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush