Citation Nr: 21076340 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-50 413 DATE: December 23, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, he has a diagnosis of diabetes mellitus, type II and served within 12 nautical miles from the shores of the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to November 1973, from January 1986 to July 17, 1986, from July 21, 1986 to September 1986, from October 1986 to September 1988, from October 1988 to September 1989, and from July 1990 to September 1990. For the Veteran's service, he was awarded the Vietnam Service Medal with one star and Vietnam Campaign Medal with device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision. In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure is granted. The Veteran maintains that his current diabetes mellitus, type II, is related to his active service. In particular, the Veteran believes that he sustained herbicide agent exposure on the Republic of Vietnam and while aboard the U.S.S. Gallant and the U.S.S. Inflict. See August 2021 Hearing Transcript. The Board will focus its analysis on the Veteran's time on the U.S.S. Gallant as it is sufficient to establish service connection for diabetes mellitus, type II on a presumptive basis. Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2012); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Also, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). In Procopio v. Wilkie, the United States Court of Appeals for the Federal Circuit held that by using the formal term "Republic of Vietnam" in the Agent Orange Act, 38 U.S.C. § 1116, Congress unambiguously referred, consistent with uniform international law, to both its landmass and its 12 nautical mile territorial sea. The Federal Circuit concluded that veterans who served in the 12-mile nautical territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116 for a disease listed there if they meet the other requirements of the statute. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir 2019) (en banc). The diseases associated with herbicide exposure for purposes of the presumption include diabetes mellitus, type II. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). If the veteran was exposed to an herbicide agent (to include Agent Orange) during active service, diabetes mellitus, type II shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's May 2016 Diabetes Mellitus Disability Benefits Questionnaire demonstrates that the Veteran has a diagnosis of diabetes mellitus, type II. This disability is listed as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Therefore, if the evidence shows that the Veteran sustained in-service herbicide agent exposure, together with his diagnosis of diabetes mellitus, type II, the presumptive service-connection criteria of 38 C.F.R. § 3.309(e) will be satisfied. Based on the below, resolving any reasonable doubt in the Veteran's favor, as is required by the law, the Board concludes that the competent evidence of record reasonably supports a finding that he served in the 12-mile nautical territorial sea of the Republic of Vietnam. The Veteran maintains that he was exposed to herbicide agents while serving aboard the U.S.S. Gallant. Of note, the Veteran provides that his ship docked at Cam Ranh Bay, near the Republic of Vietnam. The Veteran's service personnel records and service treatment records reveal that he was stationed aboard the U.S.S. Gallant from April 30, 1970, to September 16, 1972. VA determined that the Veteran served aboard the U.S.S. Gallant, which was in the official waters of the Republic of Vietnam from May 22, 1971, to June 29, 1971, and from August 1, 1971, to September 14, 1971. The Veteran's service personnel records and service treatment records indicate that he was aboard the ship during this time period. (Continued on the next page) Further, a finding by the Defense Personnel Records Information Retrieval System states that command history and deck logs from the U.S.S. Gallant demonstrate that it was moored at Cam Ranh Bay on August 2, 1971, to August 3, 1971 and from August 15, 1971, to August 20, 1971. Additionally, deck logs demonstrate that the U.S.S. Gallant was moored at Pier Two South Naval Support Facility, Cam Ranh Bay on September 6, 1971 with additional moorings to Cam Ranh Bay on September 6, 1971 and September 12, 1971. Again, the Veteran's service personnel records and service treatment records show that he was aboard the ship during this time period. In sum, the Veteran has diabetes mellitus, type II and resolving all reasonable doubt in his favor, he is presumed to have been exposed to herbicide agents as the record reasonably supports a finding that he served in the 12-mile nautical territorial sea of the Republic of Vietnam while aboard the U.S.S. Gallant. Thus, presumptive service connection for diabetes mellitus, type II is warranted. Accordingly, the Veteran's claim for service connection is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.