Citation Nr: 21002407 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-23 476 DATE: January 13, 2021 ORDER Entitlement to service connection for a heart disability, including coronary artery disease and congestive heart failure, as due to herbicide exposure is granted. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure is granted. FINDINGS OF FACT 1. At the time of the Veteran’s death, claims for entitlement to service connection for a heart disability and for diabetes mellitus were pending. 2. The Veteran was stationed at Takhli Royal Thai Air Force Base (RTAFB), Thailand during the Vietnam Era and his military occupational specialty was weapons mechanic and weapons maintenance supervisor. 3. The evidence of record is at least in equipoise as to whether the Veteran was exposed to herbicides during his service in Thailand. 4. The Veteran’s heart disease, diagnosed during the appeal period and prior to his death, is presumed to have been caused by herbicide exposure. 5. The Veteran’s diabetes mellitus, diagnosed during the appeal period and prior to his death, is presumed to have been caused by herbicide exposure. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Appellant’s favor, the criteria for service connection for a heart disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. Resolving reasonable doubt in the Appellant’s favor, the criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1954 to November 1975. He passed away in January 2016, and the Appellant is his surviving spouse. The Appellant has been substituted as the claimant. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Appellant and the Veteran’s daughter and granddaughter testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a May 2018 decision, the Board denied the Appellant’s claims for service connection for a heart condition and for diabetes mellitus. The Appellant appealed that decision to the Court of Appeals for Veterans Claims (Court). In December 2018, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board’s decision and returned it to the Board for actions consistent with the Joint Motion. In a September 2019 decision, the Board denied the Appellant’s claims for service connection for a heart condition and for diabetes mellitus. The Appellant appealed that decision to the Court of Appeals for Veterans Claims (Court). In July 2020, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board’s decision and returned it to the Board for actions consistent with the Joint Motion. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). Service Connection 1. Entitlement to service connection for a heart disability, as due to herbicide exposure 2. Entitlement to service connection for diabetes mellitus, as due to herbicide exposure Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove 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). Service connection for certain specified diseases, including coronary ischemic heart disease (including coronary artery disease) and diabetes mellitus, may be established on a presumptive basis if the Veteran served during specified time periods, was exposed to an herbicide agent, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. § 3.07(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicide agents, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). However, the above statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand. Rather, special consideration of herbicide exposure on a factual basis for veterans whose duties placed them on or near the perimeters of certain Thai military bases (including Takhli RTAFB) during the Vietnam era is required. Specifically, 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 military occupational specialty, performance evaluation or other credible evidence, herbicide exposure should be acknowledged. The Appellant is the Veteran’s wife and was substituted as claimant after he passed away in 2016. She asserts, in essence, that the Veteran’s heart condition and diabetes mellitus were caused by his exposed to herbicides while performing his military duties and job duty requirements, which placed him on or near the base perimeter while stationed at Takhli RTAFB, Thailand. She asserted that the Veteran’s performance reports note work on the flight line and accommodations for loading and unloading aircraft, which indicate he served on the perimeter of the base; that he regularly passed through the perimeter of the base; and that he loaded and unloaded Agent Orange canisters on the bottom of C-123 aircraft for missions into Vietnam. See October 2016 Board transcript, and Appellant’s April 2016, February 2018 and March 2018 statements. In an October 2015 statement prior to this death, the Veteran stated that his squadron was mobilized in August 1964 to an abandoned airfield no longer used by the Thai Air Force in Korat, Thailand, and he slept for one and one-half weeks in an abandoned building next to the flight line before the barracks were built in the jungle surrounding the base; that he crossed the perimeter when going off-base for movies and relaxation; and that aircraft at the base were F105D fighters and L-20 Observation Planes, parked at the end ramp near the weapons loading equipment. The record shows that the Veteran was diagnosed with congestive heart failure, coronary artery disease and diabetes mellitus. Thus, the question becomes whether his heart condition and diabetes mellitus were related to service, to include due to herbicide exposure therein. The Veteran’s service records reflect that he served in the U.S. Air Force from April 1954 to November 1975 and his specialty number was 46250; that from February 1963 to February 1967 he was assigned to the 354th Tactical Fighter Squadron as a weapons mechanic and weapons maintenance supervisor installing and inspecting M-61 Gunnery systems and loading and unloading conventional munitions on F105 aircraft; and he was stationed at Takhli RTAFB, Thailand from December 1966 to November 1967. The record does not show service in the Republic of Vietnam, nor has the Appellant alleged such service. A VA memorandum in the claims file indicates that sporadic use of non-tactical (commercial) herbicides were used in Thailand within fenced perimeters, and if a veteran’s military occupational specialty or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. An April 2015 formal finding from the Joint Services Records Research Center (JSRRC) indicated that, after reviewing all of the Veteran’s records, the JSRRC could not confirm that the Veteran was exposed to herbicides while stationed in Thailand. Although the record does not contain official evidence reflecting that the Veteran was in close proximity to the perimeter while stationed at Takhli RTAFB, Thailand, the Board, nevertheless, finds that the evidence is in equipoise as to whether the Veteran’s military duties and base activities placed him near the base perimeter. In written statements and oral testimony, the Veteran and the Appellant stated that his military occupational specialty as weapons mechanic and weapons maintenance supervisor at Takhli RTAFB placed him on the flight line and near the base perimeter, where the JSRRC acknowledges herbicides had been used. These statements are consistent with the Veteran’s service records and are uncontradicted. The Board finds there is no basis in the record to question the claimant’s credibility as to the nature and responsibilities of the Veteran’s service as a weapons mechanic and weapons maintenance supervisor while stationed in Thailand. Therefore, based on the credible assertions of having performed duties on or near the base perimeter at Takhli RTAFBs, and resolving all reasonable doubt in favor of the claimant, the Board finds that the Veteran as likely as not was exposed to herbicides during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In sum, the evidence of record establishes that the Veteran was diagnosed with heart disease and diabetes mellitus during the appeal period and prior to his death. Resolving reasonable doubt in the claimant’s favor, the Board finds the Veteran was exposed to herbicides while stationed at Takhli RTAFB during the Vietnam Era. Accordingly, the claims for entitlement to service connection for heart disease and diabetes mellitus are granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.