Citation Nr: 21068269 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-64 938 DATE: November 9, 2021 ORDER Entitlement to service connection for a heart disability is dismissed. Entitlement to service connection for diabetes to include as due to exposure to certain herbicides is granted. FINDINGS OF FACT 1. In October 2021, at the Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal for entitlement to service connection for a heart disability was requested. 2. The Veteran has diabetes and was exposed to herbicides while stationed at U-Tapao Royal Thai Navy Airfield. 38 C.F.R. § 3.307 and 3.309(e) CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for a heart disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for diabetes to include as due to exposure to certain herbicides have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, and 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1966 to July 1970. Service Connection If a veteran was exposed to an herbicide agent during active military service, certain diseases including diabetes will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including the herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Significantly, however, there have been important changes in the information surrounding the use of herbicides in Thailand. The evidence of this was found in a declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Therefore, based on this report, the Board finds that consideration must be made from the evidence as to whether a veteran's service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. Specifically, the report observes that some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from the Republic of Vietnam, or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Therefore, special consideration of herbicide exposure cases should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. 1. Entitlement to service connection for a heart disability An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran has withdrawn his appeal for service connection for heart disability, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of service connection for this issue and the appeal as to this issue is therefore dismissed. 2. Entitlement to service connection for diabetes to include as due to exposure to certain herbicides The Veteran contends in his October 2021 Board hearing that his duties as a Crew Chief placed him near or at the perimeter of the U-Tapao Royal Thai Navy Airfield. The Veteran contends he would travel to the perimeter. The Veteran's May 2012 correspondence from his treating physician provides evidence that the Veteran is diagnosed with diabetes. The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the Veteran's October 2021 testimony that he would travel to the perimeter to in the course of his duties as Crew Chief provides credible evidence of his being near the perimeter. Therefore, the Board finds that based on the Veteran's competent and credible lay statement regarding his travel around the perimeter of the U-Tapao Royal Thai Navy Airfield he meets the criteria for presumption of exposure to an herbicide agent during active military service in Thailand. Given that diabetes is a disease that is presumed related to herbicide exposure under 38 C.F.R. § 3.307 and 3.309(e), service connection is granted on this basis. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GAYLE E. STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.