Citation Nr: 19148317 Decision Date: 06/20/19 Archive Date: 06/20/19 DOCKET NO. 15-41 260 DATE: June 20, 2019 ORDER Entitlement to service connection for coronary artery disease (CAD) as due to exposure to herbicide agents is granted. Entitlement to service connection for Type II diabetes mellitus as due to exposure to herbicide agents is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, he was exposed to herbicides during his service in Thailand during the Vietnam era, based on facts found. 2. As the Veteran has been found to have been exposed to herbicides in Thailand, his diabetes mellitus is presumed to have been caused by his military service. 3. As the Veteran has been found to have been exposed to herbicides in Thailand, his CAD is presumed to have been caused by his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Type II diabetes mellitus have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for CAD have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from March 1971 to May 1974. This matter is on appeal before the Board of Veterans’ Appeals (Board) from a rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in September 2014. The rating decision denied service connection for coronary artery disease and Type II diabetes mellitus. The Veteran appealed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially 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). Certain specified diseases may be presumptively service connected. 38 C.F.R. § 3.309. If a Veteran was exposed to an herbicide agent during active military, naval or air service, diseases including Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) and ischemic heart disease (including, but not limited to coronary artery disease) shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) 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. 38 C.F.R. § 3.309 (e). VA regulations provide that exposure to certain designated herbicide agents may be presumed in the case of certain Vietnam Era veterans who served in the Republic of Vietnam. See 38 C.F.R. §3.307 (a)(6). Here, the Veteran has not alleged service in Vietnam, and the record does not otherwise indicate such service. VA has established guidance for VA Regional Offices to consider exposure to herbicides in Thailand during the Vietnam Era from February 28, 1961, to May 7, 1975. VA 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 document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Specifically, the report observes that some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from the Republic of Vietnam, 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, including U-Tapao base, Udorn, and others. This allows for presumptive service connection of the diseases associated with herbicide exposure. Further, if a veteran’s assigned duty did not place him/her near or on the perimeter of the base for prolonged periods of time on such a regularly repeated basis exposure to tactical herbicides or tactical grade commercial pesticides could still be established by evidence showing that, as likely as not, the Veteran had a comparably regular, repeated, and prolonged presence near or on the perimeter. Accord Haas v. Peake, 525 F.3d 1168, 1178 (Fed. Cir 2008) (noting that the presumptive limits were rooted in a statistical probability of exposure to herbicides), rev’d on other grounds by Procopio, __ F.3 __, 2019 U.S. App. LEXIS 2019. VA policy provides that, if herbicide exposure cannot be conceded based upon the above described facts, the veteran is to be asked for the approximate dates, location, and nature of the alleged herbicide exposure. If the veteran fails to furnish the requested information, the claim will be referred to the Joint Services Records Research Center (JSRRC) coordinator to make a formal finding that sufficient information required to verify herbicide exposure did not exist. The claim may then be decided based on the evidence of record. VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107 (b). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (“A veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ to prevail.”). 1. Entitlement to service connection for coronary artery disease as due to exposure to herbicides The Veteran is seeking service connection for CAD and Type II diabetes mellitus. It is his contention that these disabilities are directly attributable to his exposure to toxic herbicides while serving in U-Tapao, Thailand during the Vietnam Era. The Veteran’s military personnel records reflect that he was a jet engine technician, and performed engine maintenance, troubleshooting, removal, and installation. Performance reports reflect that he was in U-Tapao from October 1970 to January 1972. The Veteran’s MOS did not specifically place his duties near the perimeter, and his service personnel records do not specifically list where he performed any additional work duties. However, the Board finds that his statements regarding his working situation being near the perimeter of the base are credible. As such, the Board concedes that the Veteran was exposed to herbicides on a “facts-found” basis. Outpatient medical records reflect that the Veteran has a diagnosis of CAD. In September 2014, the Veteran submitted a statement in support of his claim. He reported that he was outside working 12 hours a day for 6 days a week for all of 1971 and part of 1972. A memorandum from September 2014 indicates that the AOJ had insufficient information from the Veteran regarding herbicide exposure to send to JSRRC for further research. The Veteran testified at a Board hearing in November 2018. He submitted a map of U-Tapao base in support of his claim, which is associated with his claims file, and he discussed the map at the hearing. His representative indicated that the map came from a non-governmental website. The Veteran explained that he worked on B-52s and KC-135s. The parking ramp for the KC-135s and the dining hall were near the base perimeter, and it took him less than five minutes to walk to the mess hall. The location of each site is shown on the map to be of relative proximity to the base perimeter. The Veteran testified to going to the dining hall three times a day. He also observed spots of brown and dead grass at U-Tapao. The Board has considered the Veteran’s testimony and finds that there is credible evidence that, based on his length of time at U-Tapao, observations, and proximity to the perimeter, he was exposed to herbicides while in Thailand. He served on one of the air bases where exposure was possible, and moreover, he describes a work location that brought him in close proximity to the perimeter of the bases. While the record does not definitively confirm whether the Veteran was exposed to herbicide agents while stationed at an air base in Thailand, the Board highlights that there is no basis in the record to question the Veteran’s credibility regarding his statements. These statements as to the location of duties performed by him while in Thailand are competent and credible evidence of what he has personal knowledge of during his period of service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); also see Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing.). Thus, the Board finds that the Veteran was exposed to herbicides in service. Given the above, the Board concludes that the Veteran is entitled to presumptions based on herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. As such, service connection for CAD is granted as due to in-service herbicide exposure. 2. Entitlement to service connection for Type II diabetes mellitus as due to exposure to herbicides Outpatient medical records reflect that the Veteran has a diagnosis of Type II diabetes mellitus. (Continued on the next page)   As noted, certain diseases, including Type II diabetes mellitus, warrant presumptive service connection for veterans who have been exposed to herbicide agents during their active service. See 38 C.F.R. §§ 3.307(a), 3.309(e). As outlined, the Board has found that the Veteran served near the U-Tapao air base perimeter, and therefore in-service herbicide agent exposure is conceded on a direct/facts-found basis. Therefore, service connection for Type II diabetes mellitus is granted as due to in-service herbicide exposure. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Smith, Associate 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.