Citation Nr: A19001574 Decision Date: 09/25/19 Archive Date: 09/25/19 DOCKET NO. 190116-9567 DATE: September 25, 2019 ORDER Readjudication of the claim for service connection for diabetes mellitus type II (diabetes) is warranted. Entitlement to service connection for diabetes, to include as due to herbicide agent exposure is granted. FINDINGS OF FACT 1. New evidence was received after the April 2007 denial that is relevant to the issue of entitlement to service connection for diabetes. 2. The Veteran had military service at Udorn Royal Thai AFB (RTAFB) in Thailand. 3. The Veteran has a current diagnosis of diabetes. 4. Resolving reasonable doubt in the Veteran’s favor, his diabetes is presumed to be due to herbicide agent exposure during his service at Udorn RTAFB. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for diabetes have been met. 84 Fed. Reg. 138, 169 (Jan. 18, 2019) (to be codified at 38 C.F.R. § § 3.156(d)). 2. The criteria for service connection for diabetes have been met. 38 U.S.C. §§ 1110, 1112, 1116 (2012); 38 C.F.R. § §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the rating decision on appeal was issued in May 2018. In September 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § § 19.2(d)). The Veteran served active duty in the United States Air Force from October 1966 to July 1993, including service in Thailand. The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the November 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The new and material evidence issue regarding diabetes has been recharacterized to reflect the applicable evidentiary standard. 84 Fed. Reg. 138, 172, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § §§ 3.2501(a)(1), 19.2). In the November 2018 AMA decision, the AOJ did not find that new and relevant evidence was submitted to warrant readjudicating the claim for service connection for diabetes.   NEW AND RELEVANT EVIDENCE 1. Whether new and relevant evidence was presented to warrant readjudicating the June 2006 claim of service connection for diabetes. The Veteran contends that he submitted evidence with his legacy system petition to reopen a claim for service connection for diabetes that is new and relevant and warrants readjudication of the issue. VA will readjudicate a claim if new and relevant evidence is presented or secured. 84 Fed. Reg. 138, 169 (Jan. 18, 2019) (to be codified at 38 C.F.R. § § 3.156(d)). “Relevant evidence” is evidence that tends to prove or disprove a matter in issue. 84 Fed. Reg. 138, 172 (Jan. 18, 2019) (to be codified at 38 C.F.R. § § 3.2501(a)(1)). As the statutory definition of “relevant” does not require that the evidence relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, new and relevant evidence is a lower standard than new and material evidence. The questions in this case are whether the Veteran submitted evidence after the prior final denial of his claim for service connection for diabetes in the legacy system, and if so, whether that evidence is new and relevant to his claim. The Board finds the Veteran submitted new evidence after the prior final rating decision in the legacy system that is relevant to his claim. The Veteran submitted military personnel records and lay statements regarding his tour of duty at Udorn RTAFB, after the April 2007 prior final legacy rating decision. The evidence was not already of record and may prove or disprove the presumption of AO exposure for veterans that served in the Republic of Vietnam or certain military bases in Thailand. Therefore, readjudication of the claim is warranted. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. Importantly, “[s]ervice in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (“M21-1”). VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide agent 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. See M21-1, Part IV.ii.1.H.5.a. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force 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, herbicide exposure should be conceded on a facts-found or direct basis. See M21-1, Part IV.ii.1.H.5.b. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (including diabetes) to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § § 3.307, 3.309(e). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). 2. Service connection for diabetes mellitus type II The Veteran contends that his diabetes was due to in-service herbicide agent exposure. The Veteran explained that he was stationed in Thailand at Udorn RTAFB during from January 1968 to December 1968. He stated that during his time at Udorn, he resided in an open bay barracks that was along the perimeter road and next to a canal. He described the barracks as being within twenty-two feet of the canal and had a screen on the upper and lower two feet except for the area of the doors that faced the canal. The Veteran noted that the military sprayed herbicide agents along the canal road. Likewise, he explained that he worked with the 11th/14th Life Support section that was located on the perimeter road near the end of the flight line. He added that his work station was located on the other side of the flight line from the main portion of the base where he was housed. The Veteran described other instances where he was at or near the perimeter of the base, including for work or walking to the dining hall. See February 2018 Statement. Moreover, the Veteran’s lay statements are supported by his military personnel records that showed that he was stationed at Udorn as an aircrew life support specialist from December 1967 to December 1968. See Personnel Record. Even more, the Veteran’s statements that his shop was near the flight line is not contradicted by the evidence. The AOJ confirmed that the Veteran had military service in Thailand and found that the Veteran has a current diagnosis of diabetes mellitus. The question in this case is whether the Veteran was exposed to herbicide agents during his service in Thailand. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s diabetes was caused by herbicide agent exposure. (Continued on the next page)   Specifically, as discussed above, the Veteran reported that he worked as a life support specialist on the flight line near the perimeter of the Udorn RTAFB, which would have exposed him to herbicide agents. The Veteran’s statements regarding his MOS, work location, and barracks are competent and credible. The Veteran has firsthand knowledge of his activities for the year he was stationed at Udorn and there is no evidence on record to contradict his statements. In fact, the Veteran’s reports are supported by his personnel file and DD-214, which reflect his MOS and duty station during that period. The Board recognizes that JSRRC was unable to confirm the personnel, including the Veteran, that worked with the 56th Air Commando Wing (ACW) or the distance of the barracks from the base camp perimeter. See May 2018 Memorandum. However, the inability to confirm the Veteran’s statements do not render them incompetent or lacking in credibility. The Veteran has been consistent regarding his work duties and location during the period in question. Moreover, the Veteran’s recollection of his time and duties at Udorn are confirmed by his military personnel record. Therefore, his statements are given probative weight. In short, the evidence is at least in relative equipoise regarding whether the Veteran was exposed to herbicide agents during his service at Udorn RTAFB. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.