Citation Nr: 21073031 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-28 783 DATE: December 7, 2021 ORDER Service connection for type II diabetes mellitus is granted. Service connection for ischemic heart disease is granted. FINDINGS OF FACT 1. The Veteran served at U-Tapao Royal Thai Airforce Base during the Vietnam era. 2. Resolving reasonable doubt in the Veteran's favor, his duties while serving at U-Tapao Royal Thai Airforce Base placed him on or near the perimeter of the fence of the base on a routine basis for approximately six months. 3. His type II diabetes mellitus and ischemic heart disease are due to herbicide-agent exposure as part of his active military service at U-Tapao Royal Thai Airforce Base. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes mellitus as due to herbicide-agent exposure have been met. 38 U.S.C. § 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for service connection for ischemic heart disease as due to herbicide-agent exposure have been met. 38 U.S.C. § 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1969 until his honorable discharge in June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 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). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an 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). When these elements are satisfied, service connection may be granted on a direct basis. Relevant to this case, VA has determined that a special consideration of herbicide- agent exposure on a factual basis should be extended to U.S. Army veterans who served at Royal Thai Ari Force Bases (RTAFBs), including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, during the Vietnam era if their duties placed them on or near the perimeters of the base. Per information from the Department of Defense, VA recognizes herbicide agents were used at certain times and places at some military bases in Thailand during the Vietnam era. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016). The "Vietnam era" is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Despite the absence of a code or regulation, VA has established procedures under which it will find exposure to herbicide agents during service in Thailand if certain conditions are met. The Board is not bound by these VA procedures. Overton v. Wilkie, 30 Vet. App. 257, 263 (2018). Nevertheless, the Board adopts these procedures as the relevant standard to analyze the Veteran's claim. See Hudick v. Wilkie, 755 Fed. Appx. 998, 100507 (Fed. Cir. 2018). VA procedures provide that herbicide agent exposure may be established on a facts-found basis for U.S. Army Veterans if the veteran provides a statement that he or she was involved in perimeter security duty and there is additional credible evidence supporting the statement. Otherwise, VA procedures direct the VA Regional Office to ask the veteran for the approximate dates, location, and nature of alleged exposure to determine whether the veteran was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. If not, a request should be sent to the Military Records Research Center for verification of exposure to herbicide agents. If VA finds exposure to herbicide agents on either a presumptive or facts-found basis, then the veteran may be entitled to presumptive service connection for conditions specifically listed by the VA Secretary as found in 38 C.F.R. § 3.309(e) ("Disease associated with exposure to certain herbicide agents."). Analysis 1. Service connection for type II diabetes mellitus 2. Service connection for ischemic heart disease The Board addresses the Veteran's claims together as their respective analyses substantially overlap. First element: A current disability The Veteran's medical records clearly indicate he has a diagnosis of type II diabetes mellitus and ischemic heart disease/coronary artery disease. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran asserts he is entitled to the presumption that he was exposed to herbicide agents while serving in Thailand at U-Tapao RTAFB. Resolving reasonable doubt in the Veteran's favor, the Board finds that there is sufficient evidence to establish presumptive exposure to herbicide agents. First, the Board finds that the Veteran served in Thailand from October 1969 to October 1970 according to his DD-214. The Veteran's military records do not indicate where in Thailand he served. He asserts he served at Camp Samae San and U-Tapao RTAFB. The Board finds in-service medical records dated between October 1969 and October 1970 document treatment at Camp Samae San only. While Camp Samae San is not included among the list of bases where herbicide agents were used, it is located in close proximity to the U-Tapao RTAFB, which is included on the list authored by VA. Given the Veteran served at an installation located close to the U-Tapao RTAFB, which is associated with herbicide-agent use, and given that the Board finds his statements about working at U-Tapao RTAFB credible, as discussed later, the Board will afford the Veteran the benefit of the doubt and find that he did serve at U-Tapao RTAFB. Second, the Board finds he was never assigned to guard duty along the base's perimeter; there is no evidence in the record indicting such. Nevertheless, he has consistently asserted that during his service in Thailand that he worked in construction, building culvert headwalls around the perimeter of U-Tapao RTAFB and revetments to house B-52 bomber planes. February 2016 Correspondence; April 2016 Correspondence; November 2016 Notice of Disagreement; August 2021 Board Hearing Transcript. In addition, he has asserted that he was required to travel between U-Tapao RTAFB and Bangkok to deliver mail. The Board observes that the Veteran's military occupational specialty was as a vehicle driver/motor transport operator according to his DD-214. The Veteran's military Record of Assignments indicates that from October 1969 to October 1970, while stationed in Thailand, his principal duties included acting as a plumber, carpenter, and heavy vehicle driver. This evidence reasonably indicates that his statements and testimony about working in construction at U-Tapao RTAFB are credible. See 38 U.S.C. § 1154(a) (Providing in relevant part that due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.) Third, and significant, resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's construction duties placed him on or near the perimeter of U-Tapao RTAFB on a consistent basis. In his November 2016 Notice of Disagreement, the Veteran stated that he was assigned to work on a daily basis at U-Tapao RTAFB to assist in building the original perimeter around the base and structures to house the B-52 bombers. He stated he spent a prolonged period of time on the perimeter constructing it. He assisted in building culverts and revetments. At his July 2021 Board hearing, his testimony was consistent with prior statements about his service at U-Tapao RTAFB. He testified that he built culvert headwalls every day as well as revetments in which to park the B-52 bombers. July 2021 Board Hearing Transcript, at 4. He worked construction at U-Tapao RTAFB consistently for approximately six months. Id. at 5. Despite the absence of military records indicating the duties performed by the Veteran, the Board finds his statements and testimony are credible. His military records do indicate that he worked in construction. He has been consistent when discussing his duties, which lends to his credibility. His statements and testimony do not appear to be exaggerated, and the photographs of his work in Thailand that he submitted lend additional support to his credibility. Overall, the Board finds that the evidence of record is relatively balanced, and as such, the Veteran is afforded the benefit of reasonable doubt. The Board finds that the Veteran did have active military service at U-Tapao RTAFB where he worked on or near the perimeter of the base on a daily basis for approximately six months between October 1969 and October 1970 building the perimeter by installing culverts and other structures. Therefore, the Veteran's exposure to herbicide agents is presumed pursuant to VA procedure. Thus, the second element is satisfied. Third element: A causal link As the Veteran is presumed to have been exposed to herbicide agents due to his service in Thailand at U-Tapao RTAFB, his type II diabetes mellitus and ischemic heart disease/coronary artery disease are presumed to have been caused by such exposure in service. 38 C.F.R. § 3.309(e) (type II diabetes mellitus and ischemic heart disease are listed disabilities presumptively caused by herbicide-agent exposure). Therefore, the third element is satisfied. Accordingly, service connection for type II diabetes mellitus and ischemic heart disease is warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.