Citation Nr: 21074055 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-50 187 DATE: December 14, 2021 ORDER Service connection for diabetes mellitus, type II, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the appellant, the Veteran was exposed to herbicide agents while serving in or near the Korean Demilitarized Zone (DMZ). CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to March 1969. The Veteran died in August 2017. The appellant is his surviving spouse, who has been substituted in this appeal. See Deferred Rating (October 2017). This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2021, the appellant testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 30 days for the submission of supporting evidence. The Board subsequently received additional evidentiary submissions. Entitlement to service connection for diabetes mellitus, type II. The appellant, and her representative, contends that the Veteran's diabetes mellitus stemmed from his service in Korea. Specifically, the appellant argues that the Veteran's military duties, as a courier of sensitive information, exposed him to herbicide agents because his duties placed him in or near the Korean DMZ. See Hearing Transcript at 6 (August 2021). Resolving reasonable doubt in favor of the appellant, the Board finds that the Veteran was exposed to herbicide agents while serving in or near the Korean DMZ. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA laws and regulations provide that, if a veteran was exposed to herbicide agents during active service, certain enumerated diseases, including diabetes mellitus, type II, shall be presumptively service-connected even where there is no record of such disease during service. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.309(e). 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. 38 C.F.R. § 3.307(a)(6)(iv). Under the Blue Water Navy Vietnam Veterans Act of 2019, the relevant period of service was expanded to September 1, 1967, through August 31, 1971. See 38 U.S.C. § 1116B; see also Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 3, 133 Stat. 966, 970 (eff. Jan. 1, 2020). The presumption of service connection for herbicide-related diseases may also apply if exposure to herbicide agents is shown on a factual basis. In essence, if a veteran did not serve at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the merits of the appeal, the record reflects that the Veteran had a diagnosis for diabetes mellitus, type II, which is a disease enumerated in 38 C.F.R. § 3.309(e) for presumptive service connection due to herbicide agent exposure. Thus, at issue is whether the Veteran served in an applicable region during an applicable time period where herbicide agents were used. Here, the record reflects that the Veteran served in Korea from January 1968 to March 1969, but not in one of the units identified by DoD, and the Joint Services Records Research Center (JSRRC) was unable to confirm the Veteran's in-service exposure to herbicide agents or service in or near the DMZ. The Veteran, nevertheless, contended that his military duties placed him in or near the DMZ. In support of the appeal, he submitted evidence showing that he wore the Imjin Scouts Badge (identified by the Veteran as the "DMZ patch"); and a photograph of the "Freedom Bridge" or "Bridge of No Return." The record also shows that the Veteran had military duties of a courier while in Korea; was awarded a certificate for performance of hazardous duty; and was awarded hostile fire pay. Additionally, the record shows that the Veteran had a secret security clearance and a principal duty as a Motor Messenger while in Korea. The Board finds competent, credible evidence demonstrating that the Veteran was exposed to herbicide agents while serving in or near the Korean DMZ. Here, the record contains competent, credible lay statements from the Veteran, and appellant, describing and detailing his military duties while stationed in Korea. The lay statements of record, in this regard, are consistent and corroborative with the other evidence in the record, to include official military personnel records indicative of duties for a courier of sensitive information. For instance, the Veteran has reported that due to the nature of his military occupation he had a secret security clearance. This lay report is supported by a certificate of clearance showing that the Veteran was given clearance to information classified as secret and a DA Form 1965 revealing that he delivered official matters to a colonel while in Korea. The Board, consequently, finds that the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents while serving in or near the Korean DMZ. The Board therefore concludes that, with the benefit of the doubt resolved in the appellant's favor, a grant of service connection for diabetes mellitus, type II, is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. (Continued on the next page) Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.