Citation Nr: 21001030 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-28 971 DATE: January 6, 2021 ORDER Entitlement to service connection for ischemic heart disease (IHD) is granted. Entitlement to service connection for diabetes mellitus, type II is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran was exposed to herbicide agents while serving at Korat Royal Thai Air Force Base in Thailand. 2. The Veteran is currently diagnosed with IHD and diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for IHD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to April 1968. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, confirmed and continued the previous denial of service connection for IHD and diabetes mellitus, type II. A review of the record indicates that in an August 2014 rating decision, the RO denied service connection for IHD and diabetes mellitus, type II. In December 2014, the Veteran requested reconsideration of the claims. The RO considered additional evidence, including a Joint Services Research Records Center (JSRRC) Memorandum received in March 2015. In a March 2015 rating decision, the RO reopened the Veteran’s claims, however, the RO confirmed and continued the previous denials of service connection, finding that the evidence did not show that the Veteran had been exposed to herbicides during active service. Subsequent to the March 2015 rating decision, the Veteran submitted several photographs in March 2015 depicting himself in uniform clearing land with military vehicles in close proximity to heavy vegetation. In a written statement included with the photographs, the Veteran indicated that the photographs had been taken while he was “stationed in Thailand and worked clearing the land around the bases in Korat, Thailand.” In August 2016, the Veteran again requested reconsideration of his claims. The RO considered additional evidence, including the photographs and statement submitted by the Veteran. In a May 2017 rating decision, the RO, inter alia, confirmed and continued the previous denial of service connection for IHD and diabetes mellitus, type II, finding that the evidence received was not new and material. The Veteran filed a Notice of Disagreement (NOD) in July 2017. Under the circumstances of this case, the Board has recharacterized the issues on appeal. In the March 2015 and May 2017 rating decisions, the RO determined whether new and material evidence had been received sufficient to reopen the Veteran’s claims for IHD and diabetes mellitus, type II under 38 C.F.R. § 3.156(a). However, as the new and material evidence had been received within one year of the August 2014 rating decision denying the Veteran’s service connection claims for IHD and diabetes mellitus, type II, the RO should have considered the evidence as filed in connection with the Veteran’s original claim under 38 C.F.R. § 3.156(b). Hence, this remained an original claim, and a determination under § 3.156(a) was not needed under these circumstances. The Veteran has not been prejudiced by the Board’s recharacterization of the issues in light of the decision below. Bernard v. Brown, 4 Vet. App. 384 (1993). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for IHD is granted. 2. Entitlement to service connection for diabetes mellitus, type II is granted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active service and manifests IHD and/or diabetes mellitus, type II to a compensable degree any time after such service, such will be service connected even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to an herbicide agent must be verified through the appropriate service department or other sources in order for the presumption of service connection for an herbicide agent related disease under 38 C.F.R. § 3.309(e) to be applicable. Exposure to an herbicide agent is not presumed in such instances. However, once exposure to an herbicide agent has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide agent related diseases is applicable. VA’s Compensation Service has issued information concerning the use of herbicides in Thailand during the Vietnam era. In a May 2010 bulletin, Compensation Service indicated that it 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. A primary source for that information was the declassified Department of Defense (DOD) Report titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Although DOD indicated that the herbicide use was commercial in nature, rather than tactical (such as Agent Orange), Compensation Service has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. See also Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (“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”). 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 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. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. In rendering a decision on appeal, 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Veteran has asserted that he was exposed to herbicide agents while serving at Korat Air Force Base in Thailand. At his December 2020 Board hearing, referenced above, the Veteran testified that while he was stationed in Thailand, his duties as a heavy vehicle driver frequently placed him near the perimeter, or crossing the perimeter, of the base. He testified that part of his duties included building roads which required him to physically move dirt located near vegetation that had been sprayed with herbicides to keep the growth down. See December 2020 Transcript of Hearing, pages 3-5, 9 and 10. In support of his claim, the Veteran submitted several photographs, many of which depicted the Veteran in his uniform clearing land with military vehicles in close proximity to heavy vegetation. See photographs received March 2015, June 2017, and July 2017. The Board notes that Korat Air Force Base is recognized as a Royal Thai Air Force Base in which herbicide exposure is acknowledged on a facts found or direct basis if a veteran served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence during the Vietnam era. The Veteran’s service personnel records confirm that his military occupational specialty (MOS) was heavy vehicle driver and that he was stationed at Korat Air Force Base beginning in September 1967. The Veteran’s MOS is not one of those listed that has shown to have served on or near the air base perimeter. Nevertheless, the Veteran has reported that his military duties placed him near or at the perimeter of the base during his time stationed there. The Veteran is competent to report the circumstances of his service. Indeed, a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Absent anything in the record that would impugn the Veteran’s credibility on the matter, the Board finds him credible in that regard. As there is no evidence weighing against the Veteran’s competent and credible statements, the Board finds that the evidence is at least in equipoise as to whether the Veteran served near the perimeter of the Korat Air Force Base during the Vietnam era. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran and find that he was exposed to herbicides in Thailand. (Continued on the next page)   Turning to the Veteran’s claimed disabilities, the clinical evidence of record establishes that the Veteran has been diagnosed with IHD and diabetes mellitus, type II. As noted supra, IHD and diabetes mellitus, type II are presumed to have been caused by exposure to herbicide agents. Absent affirmative evidence to the contrary, service connection for the Veteran’s IHD and diabetes mellitus, type II is therefore warranted in this case. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii); 38 C.F.R. § 3.309. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.