Citation Nr: 21075807 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-15 699A DATE: December 21, 2021 ORDER Service connection for diabetes mellitus, type II, to include as due to herbicide agents exposure, is granted. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents based upon his service in the Republic of Vietnam. 2. The Veteran's diabetes mellitus, type II, is presumed to be associated with exposure to certain herbicide agents. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, as due to herbicide agents exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1968 to July 1970, and from November 1970 to November 1971. He died in August 2016. The Appellant is the Veteran's surviving spouse. In an April 2017 notice letter, the Appellant was determined to meet the basic eligibility for substitution as the claimant for all claims that the Veteran had pending before VA at the time of his death. This matter comes before the Board of Veterans' Appeals on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for diabetes mellitus, type II. The claim for service connection for diabetes mellitus, type II, has not been certified to the Board. On close review of the record, it does not appear the Regional Office (RO) has recognized a timely appeal in this matter. However, the record shows that in June 2010, the Veteran filed a Notice of Disagreement (NOD) with the June 2009 rating decision. Thereafter, the RO issued an August 2010 Statement of the Case (SOC), which confirmed the denial for service connection for diabetes mellitus. In response, the Veteran perfected his appeal to the Board by filing a timely August 2010 VA Form 9, substantive appeal. In May 2013, the RO issued another SOC in response to the Veteran's June 2010 NOD. The Veteran responded by filing a timely June 2013 VA Form 9, substantive appeal. Regretfully, it appears both the August 2010 and June 2013 substantive appeals were overlooked, and the appeal was closed due to a failure to respond. As noted, the Veteran properly perfected an appeal for the claim for service connection for diabetes mellitus, type II, and as this appeal was pending at the time of his death, it is now properly before the Board. See Evans v. Shinseki, 24 Vet. App. 292 (2011); see also 38 C.F.R. § 19.35 (certification of issues on appeal by the RO is used for administrative purposes and neither confers nor deprives the Board of jurisdiction over an issue). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for diabetes mellitus, type II. The Appellant seeks service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents. VA regulations provide that a veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to herbicide agents, unless there is affirmative evidence to the contrary. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). This list of diseases includes diabetes mellitus, type II. A review of the Veteran's VA treatment records reveals that he had a diagnosis of diabetes mellitus, type II, during the pendency of the appeal. See VA Treatment record received August 2021. In the June 2009 rating decision, the RO denied service connection for diabetes mellitus. In reaching this determination, the RO found that service connection was not warranted for diabetes mellitus because the evidence of record failed to establish that the condition occurred in, or was caused or aggravated by the Veteran's military service. Moreover, the rating decision indicated that service connection on a presumptive basis was not warranted as the evidence of record failed to show that the Veteran served in the Republic of Vietnam. See June 2009 Rating Decision. Following the June 2009 rating decision, new evidence was received that indicates that the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. See VA Memo received August 2021. (Continued on the next page) Accordingly, as the Veteran has been diagnosed with a disease presumed service-connected in veterans exposed to herbicide agents, and he is presumed to have been exposed to herbicide agents, entitlement to service connection for diabetes mellitus, type II, is warranted on a presumptive basis. Thus, service connection for diabetes mellitus is granted. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.