Citation Nr: 20008288 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 19-28 320 DATE: January 31, 2020 ORDER New and material evidence having been received, the claim of service connection for diabetes mellitus, type II, is reopened. Service connection for diabetes mellitus, type II, is granted. Service connection for diabetic neuropathy of the right lower extremity, as secondary to service-connected diabetes mellitus, type II, is granted. Service connection for diabetic neuropathy of the left lower extremity, as secondary to service-connected diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. The Veteran had regular contact with base perimeters during service in Thailand. 2. The Veteran’s diabetes mellitus, type II, is related to exposure to herbicides in service. 3. The Veteran’s diabetic neuropathy of the right and left lower extremities were caused by his now service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria to establish service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetic neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for diabetic neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1965 to December 1990. The case is on appeal from a May 2018 rating decision. 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for diabetes. By a July 2013 rating decision, the RO denied the Veteran’s claims of service connection for diabetes. He was notified of the decision by letter in July 2013, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding those claims was received until March 2018 when he sought to reopen his diabetes claim. As the Veteran did not appeal the July 2013 decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for diabetes is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also Veteran’s March 2018 Statement in Support and April 2018 VA examination. 2. Service connection for diabetes mellitus, type II. 3. Service connection for diabetic neuropathy of the right lower extremity. 4. Service connection for diabetic neuropathy of the left lower extremity Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for certain chronic diseases, including diabetes mellitus, type II, may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 11101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service, even if there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In addition, for veterans exposed to an herbicide agent during active service, certain diseases, including diabetes mellitus, type II, 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). 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran maintains that he was exposed to herbicides during service in Thailand during the Vietnam War. The Veteran stated in his March 2018 statement in support of his claim that his duties as an air freight technician placed him near or at the perimeter of the Don Muang RTAFB in Thailand. In his June 2018 notice of disagreement (NOD), he reiterated that during his one-year Thailand assignment he was exposed to herbicides near the base perimeter on a regular basis, and additionally was within 300 meters of the perimeter during his off-duty activities. Service personnel records (SPRs) reflect that the Veteran served at the RTAFB in Don Muang with a military occupational specialty (MOS) of Air Freight Specialist, and verified service from September 1968 to September 1969 during the Vietnam era. The record also shows while in Thailand the Veteran was commended for supervision of “over 17,000 shipments with a total weight of over 1,200 tons . . . handled during this reporting period with an almost negligible error rate . . . he has worked many hours overtime . . . under extreme environments and varied circumstances.” The Veteran is currently diagnosed with diabetes, with VA medical records establishing a diagnosis sometime around 2001. Having served in Thailand with duties placing him at or near the base perimeters of a RTAFB in Thailand, exposure to herbicides is established on a direct or facts-found basis. This is particularly so when resolving reasonable doubt in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This applies to the specific facts of this case. VA has determined that there was use of herbicide agents on or near the perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. See https://www.publichealth.va.gov/exposures/ agentorange/locations/thailand.asp. 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 agent exposure should be conceded on a facts-found or direct basis. Here, based on the Veteran’s statements and his MOS, the Board concedes that he was exposed to herbicide agents while in Thailand. Finally, diabetes is a disease listed as presumptively due to herbicide exposure. For the limited purpose of resolving this appeal, the Board assumes that the disease has manifested to at least a degree of 10 percent, particularly given his insulin dependent status. See April 2018 VA examination. Moreover, there is no affirmative evidence to the contrary. Accordingly, a nexus to service is established, and service connection for diabetes is warranted. The Veteran also has current diagnoses of diabetic neuropathy of the lower extremities as confirmed by the VA examiner in April 2018, and prior private medical treatment records. Because the Board has found that the Veteran’s neuropathy was caused by his diabetes mellitus, type II, it follows that the claim for diabetic neuropathy of the lower extremities is also granted on a secondary basis due to the now service-connected diabetes. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.