Citation Nr: 21000069 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-00 554 DATE: January 4, 2021 ORDER Service connection for diabetes mellitus, type 2 (type 2 diabetes), to include as due to exposure to herbicide agents is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his current diagnosis of type 2 diabetes is presumed to be related to exposure to herbicide agents during his active service in Thailand. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type 2 (type 2 diabetes), on the presumptive basis of exposure to herbicide agents have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2018, the Veteran and his wife, V.C., testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In a July 2019 decision, the Board denied the claim for service connection for type 2 diabetes. Thereafter, the Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (CAVC). In a June 2020 joint motion for a partial remand (JMPR), the parties stipulated that a vacatur and remand is required for the part of the Board decision that denied service connection for type 2 diabetes because the Board failed to consider the Veteran's lay evidence describing his duties and service at the Royal Thai Air Force Base (RAFB) U-Tapao. In a June 2020 Order, CAVC vacated and remanded the part of the July 2019 Board decision that denied service connection for type 2 diabetes, for further additional developments. Service Connection for Type 2 Diabetes The Veteran asserts that he is entitled to presumptive service connection for type 2 diabetes, as a result of his exposure to Agent Orange, during his active service in the Kingdom of Thailand (Thailand). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, the law provides that “a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam the period beginning on January 9, 1962, and ending on May 7, 1975, 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 U.S.C. § 1116 (f); see also 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, type 2 diabetes 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). However, in this case, the Veteran has not asserted, and his service personnel records have not shown, that he served in Vietnam. Rather, service personnel records indicate that the Veteran served in the United States Air Force, with a military occupational specialty (MOS) as an aerospace ground equipment (AGE) repairman, at the Royal Thai Air Force Base (RTAFB) in U-Tapao. See Form DD-214; see also May 1973 In-Service Treatment Record (reflecting a date and location stamp of a hospital at U-Tapao AFB). Additionally, an achievement award certificate indicates that The Veteran served on temporary duty with the 307th Munitions Maintenance Squadron from April to June 1971. Pertinent to The Veteran’s assertions, VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. Specifically, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand. The herbicide use was intended to eliminate vegetation and ground cover for base security purposes. VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides. 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 the perimeters of Thailand military bases. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a 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, then herbicide exposure should be acknowledged on a facts-found or direct basis. At his November 2018 videoconference hearing, the Veteran testified that due to his service in Thailand, along with the Royal Thai Air Force Base, spraying and also windborne particles were in fact around him daily, and that he was actually on the flight line. He further indicated that he was stationed in Thailand for a total of roughly 15 – 18 months. Additionally, he explained that he was in fact near the perimeter of the Royal Thai Air Force Base, and that he was at an open hanger, which was open due to weather conditions, where he worked around airplanes. He clarified that during this time, while he was around the perimeter of the aircraft, he used to see trucks, which came by to spray for bugs and other things. Overall, the evidence of record shows that the Veteran served during the Vietnam era at U-Tapao RTAFB. Although, service personnel records do not make it expressly apparent that the Veteran was exposed to herbicides while stationed in Thailand, the Veteran has presented lay testimony showing that he was required to work near the base perimeter as part of his MOS. As the Veteran is competent to report his activities at U-Tapao RTAFB, the Board finds that the statements as to the location and the type of duties he performed while stationed in Thailand are competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and which is within the realm of his personal knowledge); see also Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing.). Thus, by resolving all reasonable doubt in favor of the Veteran, given his service personnel records, his competent, credible statements, and pertinent information regarding herbicide use in Thailand, the Veteran was presumptively exposed to herbicides during his active service at U-Tapao RTAFB. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Further, post-service medical records reflect a medical diagnosis of type 2 diabetes. Therefore, service connection for type 2 diabetes is warranted, and therefore granted. See 38 C.F.R. §§ 3.303, 3.307, 3.309. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.