Citation Nr: 21061764 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-01 651 DATE: October 5, 2021 ORDER Entitlement to service connection for coronary artery disease is granted. Entitlement to service connection for diabetes mellitus type 2 is granted. FINDINGS OF FACT 1. The Veteran has coronary artery disease (CAD) and the evidence is in a state of relative equipoise regarding whether he was exposed to herbicides during service. 2. The Veteran has diabetes mellitus type 2 (diabetes) and the evidence is in a state of relative equipoise regarding whether he was exposed to herbicides during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for CAD are met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes are met. 38 U.S.C. §§ 1110, 1116, 5107(b); 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 December 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the record and has been reviewed. In May 2021, the Board remanded the claims on appeal for additional development. The claims are again before the Board for appellate review. Service Connection The Veteran asserts that he incurred CAD and diabetes during service as the result of exposure to herbicides while serving in the Republic of Korea. The record shows that he served there between May 1969 and June 1970 and shows that he has been diagnosed with CAD and diabetes. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran 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 active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A presumption of service connection is warranted for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307. A veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. See 38 C.F.R. § 3.307. The DoD has identified specific units that served in areas along the DMZ in Korea where herbicides were used. See VA Adjudication Procedures Manual (M21-1). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several diseases to include diabetes mellitus and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including CAD (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina). 38 C.F.R. § 3.309 (e). 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 will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of lay assertions from the Veteran, private and VA treatment records, service treatment records (STRs), service personnel records (SPRs), and July 2021 VA examination reports. For the following reasons, service connection findings are warranted here. First, the evidence shows that the Veteran has CAD and diabetes these diseases are diagnosed in the July 2021 VA reports. Second, the evidence is in a state of relative equipoise regarding whether, during his service between 1969 and 1970, the Veteran served in a unit that "operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period[.]" On the one hand, certain aspects of the record counter the notion that he served near the DMZ in an area where herbicides were used. The DoD has not informed VA that the Veteran's unit operated along the DMZ. In a June 2015 memorandum, DoD notified VA that it did not discover any information showing that the Veteran's unit used, stored, sprayed, or transported herbicides or that the unit served "along" the DMZ. Further, the Veteran's unit is not listed in the M21-1 as one of the units known to have been exposed to herbicides along the DMZ. On the other hand, certain aspects of the record indicate service "near" the DMZ where herbicides were used. The June 2015 DoD memorandum notes service at Camp Page and at a tactical site near the village of Yu Chon Ni. The memorandum notes that the unit's mission was to guard "central access sites to the Republic of Korea" along the DMZ "utilizing the Hawk Missile system." The memorandum also notes that the unit supported an orphanage at Pung Ik. An "annual unit history calendar year 1969" submitted into the record indicates that the charitable work for the orphanage occurred near the DMZ. The unit history notes the unit's service "near" the DMZ "on some of the highest missile sites in the world." And the history notes the unit's partnering with another unit, which is listed in the M21-1, to provide air defense for South Korea along the DMZ. Lastly, the Board found truthful and credible the Veteran's testimony that he served near the DMZ and witnessed the application of herbicides near the DMZ. His testimony is corroborated by several consistent statements of record in which he recalls the spraying of herbicides for vegetation control around his main base and around the tactical site. And his testimony is corroborated by statements from fellow service members who served in Korea with the Veteran and recall the use of herbicides to control vegetation near the DMZ. In sum, the record does not demonstrate service "near" the DMZ where herbicides were used. But the evidence does indicate service near the DMZ. And the lay assertions attesting to the use of herbicides for vegetation control are persuasive. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay witnesses are competent to attest to observable matters); Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). As such, the evidence is in a state of relative equipoise regarding whether the presumptions noted under 38 C.F.R. § 3.307 and § 3.309 should apply. Based on the foregoing, the Board cannot find that a preponderance of the evidence is against these claims to service connection. Accordingly, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt and grant the claims. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.