Citation Nr: 19147809 Decision Date: 06/19/19 Archive Date: 06/19/19 DOCKET NO. 15-29 251 DATE: June 19, 2019 ORDER The application to reopen the claim of service connection for diabetes mellitus is granted. Service connection for diabetes mellitus type II due to herbicide agent exposure is granted. FINDINGS OF FACT 1. In an August 2009 rating decision, the RO denied the claim of service connection for diabetes mellitus on the basis that exposure to herbicide agents had not been shown. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 2. Evidence received since the August 2009 rating decision relates to a previously unestablished fact necessary to substantiate the claim. 3. The Veteran was exposed to herbicide agents during his tour of duty at U-Tapao Royal Thai Air Force Base. 4. The Veteran has a current diabetes mellitus disability. CONCLUSIONS OF LAW 1. The August 2009 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.156(b), 20.1103 (2009). 2. Evidence received since the August 2009 rating decision is new and material and the claim of service connection for diabetes mellitus is reopened. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for service connection for diabetes mellitus type II due to herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Whether new and material evidence was received to reopen the claim of service connection for diabetes mellitus. The RO denied the Veteran’s claim of service connection for diabetes mellitus type II in an August 2009 rating decision, finding that the Veteran did not have service in the Republic of Vietnam and was not exposed to herbicide agents in Thailand. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2009). The evidence received since the August 2009 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2018). For example, the Veteran testified at an October 2018 Board hearing that his duties in Thailand frequently took him to the base perimeter. This new evidence addresses the reason for the previous denial; that is, herbicide agent exposure, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Service connection for diabetes mellitus type II due to herbicide agent exposure. The Veteran seeks service connection for diabetes mellitus type II based on exposure to herbicide agents. The Veteran asserts that during his service at U-Tapao Royal Thai Air Force Base (RTAFB), his duties as a mail clerk routinely took him all over the base, including frequently around the base perimeter. Service connection based on exposure to the designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. Diabetes mellitus type II is one of the diseases entitled to the presumption. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309. To qualify for the presumption, the Veteran must have been exposed to herbicide agents, either on a facts found or a presumptive basis. VA’s Compensation & Pension Service (C&P), now known as the Compensation Service, has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it 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. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). Given this information, C&P determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, C&P stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” The May 2010 bulletin identifies several bases in Thailand, including U-Tapao RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence. As to the evidence of herbicide agent exposure, in statements in support of his claim, the Veteran asserted that his duties required him to consistently pick up mail at the various sites on base, which regularly included sites along the perimeter of the base. There was not a centralized mail pickup, which required him to walk and drive along the perimeter on a regular basis. The Veteran estimated that 50 percent of his time was in these areas. During the October 2018 Board hearing, the Veteran stated that, as a Postal Clerk, he walked all over the base picking up postal material. He testified that he left the base daily and worked the perimeters by going to the flight lines. Service personnel records show that the Veteran served on the U-Tapao RTAFB from July 1967 to August 1968. This is consistent with the Veteran’s testimony at the Board hearing. Service personnel records also confirm the Veteran’s occupations; however, they do not clearly corroborate the Veteran’s claim that his duties took him to all areas of the base. Nonetheless, the Board finds that the specific details that the Veteran provided render his testimony particularly credible. Accordingly, the Board finds that the Veteran’s duties frequently took him to the perimeter of the base. Consequently, the Board finds that it is at least as likely as not that the Veteran in this case was exposed to herbicide agents on a facts found basis. As the Veteran was exposed to herbicide agents and has a current diabetes mellitus disability that is entitled to the presumption of service connection for herbicide agent exposure, service connection is warranted. 38 C.F.R. §§ 3.307, 3.309. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.