Citation Nr: 21002383 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-33 289 DATE: January 13, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as due to herbicide agent exposure, is granted. Entitlement to service connection for chronic kidney disease, to include diabetic nephropathy, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his diabetes mellitus is related to active duty service, to include as due to toxic herbicide exposure. 2. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his chronic kidney disease, to include diabetic nephropathy, is related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a-b), 3.307, 3.309(a). 2. The criteria for service connection for chronic kidney disease, to include diabetic nephropathy, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1963 to December 1967. He received the Republic of Vietnam Campaign Medal and the Vietnam Service Medal. The undersigned Veterans Law Judge presided over a Board hearing in November 2020. A transcript of this hearing is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type II diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309 (e). Additionally, an individual who performed service under the Air Force under circumstances in which he or she regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray herbicide agent during the Vietnam era shall br presumed to have been exposed during service to an herbicide agent. Id. In short, if herbicide exposure is found on either an actual or presumptive basis, then service connection of a listed qualifying disability is all but guaranteed by statute. To determine whether a Veteran was exposed to herbicide agents, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being “Agent Orange,” unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Therefore, if a Veteran served in-country in Vietnam, they are entitled to a presumption of herbicide exposure, and need not prove actual exposure to herbicides. 1. Entitlement to service connection for diabetes mellitus type II, secondary to herbicide exposure. The Veteran asserts that his diabetes is related to his toxic herbicide exposure. Specifically, he contends episodes of exposure while stationed in Guam and while re-fueling in Vietnam as a crewman of an EC-121K radar plane. After a review of the evidence, the Board need not discuss the Veteran’s service in Guam, as the evidence reflects that he was likely physically present in the Republic of Vietnam, and that service connection is warranted on this basis. First, the record reflects that the Veteran was first diagnosed with diabetes in August 2010, which his private physician described as “uncontrolled”. Therefore, the critical question in this case is whether the Veteran served, at any point, in Vietnam during his active duty service. Moreover, the Veteran may be presumed to have been exposed to toxic herbicides. Specifically, the Veteran’s military service records support that the Veteran served in Guam from 1965 to 1966, and a medical examination from April 1965 reflects his status as an air crewman candidate. His personnel record reflects that he accrued 309.4 flight hours, either in training or operationally, as a member of the Airborne Early Warning Squadron One. In this role, he has stated he flew between Guam, the Philippines and Japan. In his November 2020 hearing testimony, and statements in the record since September 2013, he asserts he made at least one re-fueling stop at Cam Ranh Air Force Base in Vietnam, with boots on ground for one hour. While making routine flights to the Philippines and Japan as a crewman of a naval radar plane is not evidence that the Veteran performed service in Vietnam, it demonstrates that the Veteran served in a unit during his time stationed in Guam that would fly to other countries during the course of fulfilling its mission, and that it is at least as likely as not that these re-fueling stops were not documented in his official military personnel record. The Board notes that proof of service in the Republic of Vietnam need not be clear and unmistakable. Rather, the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, makes clear Congress’s intent that toxic herbicide exposure is sufficient “if the information in the veteran’s service records and other records of the Department of Defense is not inconsistent with the claim that the Veteran was present where and when the claimed exposure occurred.” 98 P.L. 542, 98 Stat. 2725. In the Board’s view, this standard has been met. The Board takes notice of the fact that short-duration flights to the Republic of Vietnam for temporary duty or re-fueling from the Philippines and Japan were common. Moreover, the Veteran’s service makes it likely that he probably did participate in such missions. Namely, the evidence of record supports his contentions that he served as a member of an aircrew operating throughout the South China Sea while stationed in Guam. In addition to his testimony, there is no evidence in the record inconsistent with this claim. To the contrary, there are numerous recommendations for promotion from commanding officers highlighting the Veteran’s dedication to his service, and reliability, among other qualities, further confirming the Veteran’s credibility. As the Board finds no reason to find that the Veteran’s accounts are not credible, the evidence is at least in equipoise regarding whether he was exposed to herbicide agents in service. Thus, all the requirements for substantiating claims for service connection based on exposure to herbicide have been met and service connection for diabetes mellitus is warranted. 2. Entitlement to service connection for chronic kidney disease, to include diabetic nephropathy, secondary to diabetes. The Veteran contends that his chronic kidney disease, to include his diagnosed diabetic nephropathy, is due to his service-connected diabetes mellitus. The Veteran was first diagnosed with “uncontrolled” diabetes through a private physician in August 2010. Subsequently, he was diagnosed with a chronic kidney condition in March 2011. In January 2012, the physician clarified the diagnosis as chronic kidney disease, which was noted as due to poor diabetes mellitus control for many years. The Veteran was also diagnosed with diabetic nephropathy in August 2013, which the physician described began as several years prior. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current chronic kidney disease, including diabetic nephropathy, is due to his service-connected diabetes mellitus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for his chronic kidney condition is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald