Citation Nr: 21074341 Decision Date: 12/15/21 Archive Date: 12/14/21 DOCKET NO. 17-50 161A DATE: December 15, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II (diabetes), is granted. Entitlement to service connection for Parkinson's disease is granted. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran was exposed to herbicides in service. 2. The probative evidence of record establishes that the Veteran has current diagnoses of diabetes and Parkinson's disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.156 (c), 3.303, 3.307, 3.309. 2. The criteria for service connection for Parkinson's disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.156 (c), 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from June 1962 to June 1966. In October 2019, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran's claims were most recently before the Board of Veterans Appeals (Board) in December 2019, wherein they were denied. Thereafter, the Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). Through a March 2021 Joint Motion for Remand (JMR), the Veteran's claims were remanded to the Board for further action. Service Connection 1. Entitlement to service connection for diabetes 2. Entitlement to service connection for Parkinson's The Veteran contends that his diabetes and Parkinson's conditions are related to service because he believes that he was exposed to herbicidal agents while in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, exposure to certain herbicide agents, including the one commonly referred to as Agent Orange, shall be presumed for any 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). 38 U.S.C. § 1116 (f). In addition to Vietnam service, veterans who served in certain Royal Thai Air Force Bases (RTAFB) may also be found to have been exposed to herbicide agents, depending on their military occupational specialty or other facts found relating to the circumstances of their service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including the two at issue here, shall be service-connected even though there is no record of such disease during service. 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 Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Reconsideration The Board finds that relevant, newly discovered service treatment records (STRs) and service personnel records (SPRs) were added to the file after the first regional office (RO) decision. 38 U.S.C. § 3.156 (c). In this instance, the Veteran first applied for service connection for diabetes and Parkinson's in April 2011. A June 2013 rating decision denied the Veteran's claim and he did not appeal that decision. At the time of the rating decision, the file did not contain STRs or SPRs. Within one month of the rating decision, relevant STRs and SPRs were added to the file in July 2013. The Veteran applied for service connection for the two issues in December 2015 and for reconsideration in March 2017. The Board finds that the last unappealed rating decision was the June 2013 decision which is associated with the Veteran's initial application. Given that relevant STRs and SPRs were associated with the file after the Veteran's initial application for service connection for diabetes and Parkinson's the Board finds that reconsideration is warranted. Service Connection Related to entitlement to service connection for diabetes and Parkinson's disease, the Veteran's sole contention is that he was exposed to herbicide agents in service. Most recently, the Veteran believes his exposure occurred while he served in Thailand. Earlier statements reference service in Vietnam. The two claimed conditions are subject to presumptive service connection based on herbicide exposure. 38 C.F.R. § 3.309 (e). Thus, the threshold inquiry is whether the Veteran was exposed to herbicide agents while in service. In statements dated April 2012 and June 2013, the Veteran asserted he was stationed in Vietnam. There is no record of the Veteran serving in Vietnam in his military personnel records that might detail where he was stationed. Significantly, the Veteran did not further pursue this line of exposure in later statements. The Board finds insufficient evidence to establish service in Vietnam. Regarding service in Thailand, the Veteran's service records do not make clear exactly when or where the Veteran served in Thailand. Personnel records confirm temporary duty (TDY) for 90 days beginning in June 1965, however the location is not listed. However, the Veteran has asserted that he did a 90-day tour of duty (albeit from January to March 1966) at two Thai airbase locations. The Veteran contends that he served on Udorn and Takhli, two of the bases that are recognized as having used herbicide agents; the Board finds it likely that he did have service on at least one Royal Thai Air Force Base (RTAFB). Exposure can be conceded on a "facts found basis" if the Veteran served in the Air Force and his military occupational specialty was "a security policeman, security patrol dog handler, or member of the security police squadron." If those criteria are not met, exposure can still be conceded if he was "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence." While the Veteran served in the Airforce on a RTAFB, his MOS is not one of the listed specialties. Rather, he was a jet aircraft mechanic. Thus, the Board embarks on a determination of 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." In March 2018, the Veteran submitted a statement that the aircraft that he flew (KC-135) was "revetted" near the perimeter fence, in the Southwest corner of the base. However, the Veteran did not provide more specific information as to why this work was completed near the perimeter rather than the flight line, or as to his actual participation in the work. He also submitted a statement of someone who served after him that references the "CHECO report" that indicates that VA accepted that there was Agent Orange use at Udorn. Notably, that herbicides were used at Udorn is not in dispute. VA has accepted that they were used around the perimeter of the base. The Veteran also submitted a printout from a non-government website on the Strategic Air Command, 3rd Air Division, and underlined the Arc Light and Young Tiger operations. It indicates that the 4252nd Strategic Wing at Kadena established a forward operating location at Don Muang Airport in Thailand. He testified that he was part of the Young Tiger operation, where planes flying missions to Vietnam would come to be refueled. The Veteran's accompanying statements from March 2017 include that his "duties were to maintain in top-flight condition KC135A planes that would be air refueling B52's planes flying over Vietnam enemy territory." It appears that the Veteran is arguing that he worked on planes that flew missions into Vietnam and was exposed in that manner. VA has expanded the regulation pertaining to individuals presumed to have been exposed to herbicides during the Vietnam era to include individuals who performed service in the Air Force under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent ("Agent Orange") during the Vietnam era. However, that is not the case for this Veteran, who has listed several types of aircraft that he serviced, none of which were C-123s. There is no scientific evidence of record showing that such secondary and delayed exposure from planes that flew through Vietnamese airspace is sufficient to cause health effects. After the JMR, the Veteran submitted information about his sleeping quarters at Takhli RTAFB. He asserted that he was "a few hundred yards" away from the perimeter when he wasn't working or flying. Further, there was a bare patch of grass next to the huts that was sprayed to keep the weeds down. At Udorn RTAFB, the Veteran was closer to the perimeterapproximately 500 feet. See VBMS, document labeled Correspondence, receipt date November 10, 2021, page 1 of 2. Further, the Veteran provided a map and indicated where he worked, which appears to be near the perimeter. See VBMS, document labeled Correspondence, receipt date November 10, 2021, page 2 of 133. Given the above, the Board finds that the Veteran was exposed herbicides because he was "otherwise near the air base perimeter as shown by ... other credible evidence." The credible evidence demonstrates that while the Veteran's MOS did not put him near the perimeter of the fence, he slept near the perimeter which is sufficient for exposure. In summary, the Board finds that the preponderance of the evidence demonstrates that the Veteran was exposed to herbicides. Given such exposure, presumptive service connection for diabetes and Parkinson's disease is warranted. Thus, the claims are granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.