Citation Nr: 21001141
Decision Date: 01/07/21	Archive Date: 01/07/21

DOCKET NO. 15-31 466
DATE: January 7, 2021

ORDER

Entitlement to service connection for diabetes mellitus, type II, is granted.

FINDING OF FACT

The Veteran was at least as likely as not exposed to an herbicide agent during active service and has been diagnosed as having diabetes mellitus, type II.

CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus, type II, have been met.  38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from July 1972 to May 1979.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  Original jurisdiction for the Veteran’s claim is now with the RO in Boise, Idaho.

The Veteran appeared at a hearing before the undersigned in October 2018.  A transcript of the hearing is of record.

In May 2019, the Board remanded this matter for further development.  The Agency of Original Jurisdiction (AOJ) has now returned the matter to the Board for further appellate consideration.

Analysis

Service connection may be established on a presumptive basis for diseases enumerated in 38 C.F.R. § 3.309(e) for veterans who were exposed to certain herbicide agents during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6).  The term “herbicide agent” is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 C.F.R. § 3.307(a)(6)(i).  VA has applied the presumptive provisions regarding herbicide agent exposure to veterans who served outside of the Republic of Vietnam when the evidence establishes their military duties resulted in herbicide agent exposure.

Here, the record establishes the Veteran was at least as likely as not exposed to an herbicide agent during active service.  The Veteran served at two different locations in the Pacific, during the Vietnam era, in which evidence shows herbicide agents were used, as confirmed by soil sample testing, first-hand accounts, and concessions by federal agencies included in various reports submitted by the Veteran.  Although the Joint Services Record Research Center informed the AOJ it was unable to research the Veteran’s specific assertions regarding herbicide agent exposure because the AOJ failed to include a 60-day window in its research request, the Board finds there is no reason to doubt the credibility of the documentary evidence the Veteran has submitted to support his claim.  The record further establishes the Veteran has been diagnosed as having diabetes mellitus, type II, a disease presumed to result from herbicide agent exposure.  See 38 C.F.R. § 3.309(e).  Resolving reasonable doubt in favor of the Veteran, the Board concludes herbicide agent exposure should be conceded in his case.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  As a result, the criteria for service connection for diabetes mellitus, type II, have been met.  See Wise v. Shinseki, 26 Vet. App. 517, 532 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”).

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	L. S. Kyle, 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.