Citation Nr: 20004604 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-25 525 DATE: January 21, 2020 ORDER Service connection for diabetes mellitus type II, as due to herbicide exposure, is granted. REASONS FOR REMAND FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during service while stationed near the demilitarized zone (DMZ) in Korea in 1971. 2. The Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1968 to November 1973 and from August 1975 to March 1976, with additional active duty for training (ACDUTRA) from June 17 to June 20, 1980, and from June 29 to July 11, 1980. The case in on appeal from a January 2015 rating decision. In his April 2017 substantive appeal, the Veteran requested a Board video hearing. However, in a June 2017 statement, the Veteran withdrew his hearing request. Although the rating decision that was initially listed as being on appeal is dated May 2015, lay evidence in support of the claim raising a direct theory of service connection was submitted and received within one year from a January 2015 rating decision. As the evidence received is new and material, the Board finds that the January 2015 decision is the actual rating decision currently on appeal. See 38 C.F.R. § 3.156 (b). The Veteran seeks service connection for diabetes mellitus type II, asserting that he was exposed to herbicide agents while serving in the DMZ in 1971. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is currently diagnosed with diabetes mellitus type II which is listed as a chronic disease under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. § 3.303 (b) for chronic in-service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus type II, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that diabetes mellitus type II is one such disease. The Department of Defense (DoD) has also confirmed to VA that Agent Orange was used along the DMZ in Korea from April 1968 to July 1969. Fields of fire between the front-line defensive positions and the south barrier fence were defoliated. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. According to DoD, there was no indication that herbicides were sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters down wind. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain veterans who served in Korea. Specifically, VA added a new paragraph (iv) to 38 C.F.R. § 3.307 (a)(6) that reads as follows: A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307 (a)(6)(iv); see also 38 C.F.R. § 3.814 (c)(2) (2017). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After a review of all the evidence, both lay and medical, the Board finds the evidence to be in relative equipoise on the factual question of whether the Veteran was actually exposed to herbicides during service, specifically, when he was stationed near the DMZ in Korea. A report by the Joint Services Records Research Center (JSRRC) confirmed that the Veteran’s unit served near the DMZ and performed random security patrols in the DMZ through September 28, 1971. Thus, the evidence affirmatively shows the Veteran was stationed in the DMZ around the time that herbicide agents were presumed to have been used. Evidence weighing against confirmation of exposure to herbicides includes the JSRRC’s concurrent finding that their records did not explicitly show that Agent Orange was being used, stored, sprayed or transported at the time during which the Veteran’s unit was in the area. However, based on the JSRRC’s confirmation of the Veteran’s 1971 presence near the DMZ and the Veteran’s lay statements regarding the nature of his service there, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was in fact exposed to herbicide agents during service when stationed near the DMZ in Korea in 1971. See 38 C.F.R. §§ 3.307, 3.309; Gilbert, supra. Because diabetes mellitus type II is presumptively associated with herbicide exposure, service connection for that disability as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is granted. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.