Citation Nr: 20048554 Decision Date: 07/21/20 Archive Date: 07/21/20 DOCKET NO. 08-26 118A DATE: July 21, 2020 ORDER Entitlement to service connection for diabetes mellitus, Type II, as due to herbicide exposure, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran’s diabetes mellitus, Type II, was presumptively related to his exposures to herbicide agents while serving on active duty in Thailand. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, Type II, as due to herbicide exposure, 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 FINDING AND CONCLUSION This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty from June 1970 to September 1979. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In December 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This matter was previously before the Board in December 2013 and July 2015, where it was remanded for further development. After development was completed, these matters were re-adjudicated by the Board in May 2017, where the Board denied the Veteran’s service connection claim. Subsequently, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a March 2018 Joint Motion for Partial Remand (JMPR), which remanded the May 2017 Board decision for re-adjudication consistent with its decision. In September 2018, the Board re-adjudicated the matter, and continued the denial of the Veteran’s service connection claim. The Veteran, once again, appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a December 2019 Memorandum Decision, which remanded the September 2018 Board decision for re-adjudication consistent with its decision. Entitlement to service connection for diabetes mellitus, Type II, as due to herbicide exposure. The Veteran contends that his current diabetes mellitus, Type II, is related to his exposure to herbicide agents during active service in Thailand. Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). However, the Board notes that, VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (June 12, 2007); Notice, 74 Fed. Reg. 21, 258021, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Furthermore, the Board notes that, VA’s Compensation Service has acknowledged exposure to tactical herbicides, such as Agent Orange, on a direct, occupational, or facts found basis for veterans with duty on military base perimeters in Thailand during the Vietnam era. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DOD) document titled, “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Id. 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 perimeters of Thailand military bases. Id. This allows for presumptive service connection of the diseases associated with herbicide exposure. Id. VA’s Adjudication Procedure M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5, directs, in pertinent part, that if a veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), including Udorn, as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, to include daily work duties, performance evaluation reports or other credible evidence, then herbicide exposure is to be conceded. Turning to the evidence of record, the Veteran’s military personnel records reveal that the Veteran served in the Air Force, where he was stationed at the Udorn RTAFB in Thailand. See Military Personnel Record. While there, the Veteran served as a jet engine mechanic, assigned to the Intermediate Maintenance Section, where his duties consisted of insuring that quality maintenance is performed on J79 jet engines, removing and replacing components, and cleaning, inspecting, tagging, and insuring that turnpin is completed; as well as, the Veteran asserting that he unloaded drums containing herbicides. Id.; see also Hearing Transcript, September 2013. Additionally, the Veteran has competently and credibly stated that his work area, specifically the flight-line maintenance shop and engine repair shop, was “roughly 50 yards from the perimeter base…[and] about 75 yards away from the [RTAFB] perimeter,” respectively (See Affidavit, June 2018); with a noted reference and attachment of the Army’s 1971 Field Manual: Tactical Employment of Herbicides that reflects his work area was within a “500-[meter spray] drift zone” that was expected during ground spraying systems of herbicides. See Third-Party Correspondence, August 2018; see also CAVC Decision, December 2019. [The Board notes that the above noted Field Manual references methods of herbicide agent dissemination, with discussion on “spray drift” areas of herbicide agents deployed by air]. Therefore, based on the above, the Board finds that the probative evidence of record (to include the Veteran’s military occupational specialty as a jet engine mechanic at RTAFB Thailand, the Veteran’s competent lay statements of being well within the herbicide spray drift area noted in the Army’s 1971 Field Manual: Tactical Employment of Herbicides, the CHECO Report noting heavy herbicide use at the perimeter of the base, and the pertinent parts of the VA’s Adjudication M21-1), meets the requirements for presumption to herbicide exposure in service. As the record confirms that the Veteran has been diagnosed with diabetes mellitus, Type II: a disease listed as presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), as shown in the competent and credible medical evidence of record, the Board concludes that based on the applicable laws, and resolving any reasonable doubt in favor of the Veteran, service connection for the Veteran’s diabetes mellitus, Type II, as due to herbicide exposure is warranted on a presumptive basis. Accordingly, the claim is granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.