Citation Nr: 21064622 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-18 130 DATE: October 21, 2021 ORDER Service connection for diabetes mellitus, type II, to include as due to herbicide agents exposure, is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise that the Veteran's diabetes mellitus, type II, is due to his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from August 1960 to August 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in August 2019; a transcript is of record. Subsequently, the Board remanded these matters, with the most recent one in January 2020 for additional development to attempt to obtain NARA records for Vietnam-era Marine Corps Unit records. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105(2008). Logbooks were obtained. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Service incurrence for certain diseases, such as diabetes mellitus, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicide agents. Id. "Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). A veteran who served in the Republic of Vietnam during the Vietnam era (January 9, 1962, to May 7, 1975) 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. 38 C.F.R. § 3.307(a)(6)(iii). For veterans presumed to have been exposed to herbicide agents during the required period, a presumption of service connection exists for certain enumerated diseases, to include diabetes mellitus. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, the veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the Federal Circuit reversed its holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008). The Federal Circuit found that "veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116 (f) that they "served in the Republic of Vietnam," regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam." In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agents exposure. The Veteran claims that he was exposed to herbicide agents while stationed on the USS Bon Homme Richard. Herbicide Agents Exposure The Veteran's military personnel records reflect that he was stationed onboard the USS Bon Homme from at least December 1961 to December 1963. However, the logbooks do not show the USS Bon Homme entered the territorial waters of Vietnam. Additionally, in response to Board directives, the Archivist was unable to locate records from the US Marine Corps from January 1962 to December 1963 regarding the Marine Detachment aboard the USS Bon Homme Richard. The Veteran has submitted evidence showing the USS Bon Homme Richard was deployed to participated in strikes in Northern Vietnam. Comparatively, the Veteran's representative has provided coordinates that he asserts are within the 12 nautical miles of the Vietnam coastline. Additionally, at the Board hearing, it was suggested the Veteran was near the Vietnam coastline during his service. After review of the competent and probative evidence, the Board finds that the evidence is at least in equipoise that the Veteran was in the 12-nautical mile territorial sea of the Republic of Vietnam. Despite the fact that there is no clear evidence of herbicide agent exposure due to his service shown in the record, there is no clear evidence to show the USS Bon Homme Richard was not in the territorial waters of Vietnam. Both the positive and negative evidence of record is somewhat speculative or absent. In this regard, the archivist stated that NARA records are not available. Comparatively, the Veteran suggests he was near the Vietnam coastline while aboard the USS Bon Homme. While the evidence is somewhat lacking either to support a finding against or for service within the territorial sea of Vietnam, the Board does not find that additional development would be helpful as the records are not available. As such, when resolving reasonable doubt in favor of the Veteran on this material issue, the evidence of record in this matter is at least in equipoise that the Veteran had service on the USS Bon Homme Richard in the territorial waters of Vietnam. The Veteran's statements are consistent with the circumstances and conditions of his service aboard the USS Bon Homme Richard during the Vietnam era. 38 U.S.C. § 1154(a). Also, clear evidence is not needed, just that the evidence on a material issue be in equipoise. 38 U.S.C. § 5107(b). Here, the evidence of record, to include his military personnel records, clearly establishes that the Veteran had service aboard the USS Bon Homme Richard during the Vietnam era. Furthermore, he has provided evidence and testimony that establishes service near the Vietnam shoreline, and the Board finds such testimony to be consistent with the circumstances, places, and types of his service. While the Board acknowledges the logbooks not showing service in Vietnamese waters, there is no evidence in the file to doubt the Veteran's statements and so the Board finds the Veteran's statements suggesting being in the Vietnamese waters credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, in light of the recent Federal Circuit decision in Procopio, the Board finds that the Veteran had service in the Republic of Vietnam, so is presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran has a diagnosis of diabetes mellitus during the period on appeal. As such, the first element of service connection is met. Because diabetes mellitus, type II, is a condition for which service connection can be granted on a presumptive basis when exposure to herbicide agents is established, entitlement to service connection for diabetes mellitus, type II is granted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.