Citation Nr: 20054892 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 15-24 689 DATE: August 19, 2020 ORDER Service connection for diabetes mellitus, type II is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran was exposed to herbicide agents during his service in Thailand. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1971 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded this matter to the RO for further development. The RO determined that they had insufficient information to verify herbicide exposure and forwarded the information to Joint Services Records Research Center (JSRRC) coordinator for a formal finding (for the record) that the information provided is insufficient to verify exposure to herbicides. Thereafter, the RO readjudicated the matter and service connection was denied in a supplemental statement of the case (SSOC) dated May 2020. The Board finds there has been substantial compliance with the December 2018 remand instructions and the claim is ready for disposition on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. §7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6). VA has 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. VA Compensation Service has acknowledged that there is "some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides." Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). VA has extended special consideration of herbicide agent exposure on a facts-found or direct basis to veterans whose duties placed them on or near the perimeters of Thailand military air or Army bases, as shown by the Veteran’s military occupational specialty (MOS) or other credible evidence. The Veteran contends that his diabetes mellitus, type II, which was diagnosed in July 2009, is due to his exposure to herbicide agents during his service in Thailand. See July 2009 VA treatment records (noting newly diagnosed diabetes); See June 2014 Notice of Disagreement. The Veteran has reported that he was exposed to herbicide agents while stationed at Korat Royal Thai Air Force Base (RTAFB), where he “worked the night shift from six p.m. ‘til six a.m. and most of the time to ten a.m., six days a week,” on the flight line connecting “all equipment to the aircraft[s],” and added that he “was always exposed in the flight line. There were areas in the flight line that were close to the perimeter.” See June 2014 Notice of Disagreement. Additionally, the Veteran’s representative states that the Veteran “was authorized to operate vehicles on the flight line, near the perimeter, in the performance of his duty.” See November 2018 Representative Response. The Board finds the Veteran’s statements of record credible because they are supported by contemporaneous military personnel records. Specifically, military personnel records confirm the Veteran’s service at Korat Royal Thai Air Force Base with the 388th Field Maintenance Squadron as an Aerospace Ground Equipment Repairman, with the duties of inspecting, maintaining, repairing and modifying equipment used in support of aircraft systems and subsystems. See December 1973 Performance Report; see also July 1974 Performance Report (noting a change of duty effective July 1974). Additionally, the Veteran’s military records reveal he was validated before arriving to Korat to operate vehicles, and he completed additional training in March 1973 to operate multi-stop vans and farm trucks. See January 1972 Operator Qualifications and Record of Licensing (noting Flight Line Test with stamp “Valid at Korat RTAFB”); see also March 1973 Request for drivers training and additions (noting Veteran fully qualified to operate multi-stop van and farm truck). The Veteran’s attorney asserts that the maps of Korat RTAFB they submitted demonstrate that the flight line at Korat was well within the drift zone. See November 2018 Representative Response. The Veteran’s attorney also submitted a few undecipherable images of maps to support his contention. However, even cursory review of maps of the Korat RTAFB available on the internet, including views of the flight line and apron wherein planes landed and were stored, indicates that the flight line and apron appear to be close to the perimeter of the base. As such, the Board may take judicial notice of these facts because they are not subject to reasonable dispute. Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (stating that the Court may take judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (providing for judicial notice of facts not subject to reasonable dispute). Vegetation control was a serious problem at Korat RTAFB and due to this the base obtained explicit permission to use herbicide agents. See "Project CHECO Southeast Asia Report: Base Defense in Thailand" at 58. VA's Adjudication Procedures Manual directs that if a veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be acknowledged. See M21-1, IV.ii.1.H.5.b (emphasis added). Here, considering the Veteran’s duties clearly placed him on the flight line on a near continuous basis, and evidence submitted by his representative supports finding his duty locations were near the base perimeter, the Board finds that the evidence is at least in equipoise as to whether he had herbicide exposure. Consequently, based on the particular circumstances of this case, and this case only, and in light of all of the supporting evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to herbicide agents during active service while stationed at Korat RTAFB in Thailand. As diabetes mellitus type II is a presumptive disorder, no nexus opinion is needed, and accordingly the Board finds that entitlement to service connection for diabetes mellitus type II is warranted. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.