Citation Nr: 21010415 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-17 281 DATE: February 24, 2021 ORDER Entitlement to service connection for diabetes mellitus type II is granted. FINDING OF FACT 1. The Veteran served within 12 nautical miles offshore of the Republic of Vietnam during the Vietnam War era. 2. The Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW The criteria to establish entitlement to service connection for diabetes mellitus type II due to herbicide agent exposure are met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from September 1965 to August 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision. In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for diabetes mellitus type II. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. A Veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service "in the Republic of Vietnam" includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A. The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) was recently signed into law, which extends the presumption of exposure to herbicide agents to those Veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), which was that "Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to § 1116's presumption if they meet the section's other requirements." See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 ("The BWN Act codified the Procopio holding"). Moreover, Congress also intended the BWN Act to "ensure that VA defines 'the Republic of Vietnam' broadly." Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). The Veteran contends that he has diabetes mellitus type II as a result of his exposure to herbicide agents offshore of the Republic of Vietnam during his active duty service in the Navy from September 1965 to August 1969. The record shows that he has a current diagnosis for diabetes mellitus type II. See April 2017 VA treatment record. The Veteran has asserted that he was in, or close to, the Republic of Vietnam during his service aboard the USS Stoddard from April 1968 to August 1969 in his role as a torpedoman. The Veteran's DD 214 notes that his last duty assignment and major command was the USS Stoddard (DD-566). His specialty number was noted to be 0000/0000, and the related civilian occupation was identified as ordnance mechanics. The Veteran’s military personnel records reflect that he was transferred to the USS Stoddard (DD-566) in April 1968, and he was a torpedoman's mate seaman (TMSN) at that time. He reported to the ship in May 1968. The military personnel records also include a November 1968 entry noting that the Veteran was authorized to wear the Vietnam Service Medal/Ribbon for his service in the Vietnam area of operations onboard the USS Stoddard (DD 566) as a member of the ship's company during the period from July 12, 1968 to August 24, 1968; September 4, 1968 to September 25, 1968; October 9, 1968 to October 24, 1968; and October 29, 1968 to November 14, 1968. The Veteran submitted articles regarding the history of the USS Stoddard (DD-566) which note that it was a Fletcher class destroyer. The ship’s history notes that the USS Stoddard made a major cruise to the western Pacific from June 10. 1968 to December 7, 1968. The Veteran also submitted a map indicating that the USS Stoddard was close to Qui Nhon, Vietnam on November 6, 1968. The Board also notes that the Deck Log – Remarks Sheet for the USS Stoddard (DD-566) for November 6, 1968 shows that the ship was noted to be at sea within the vicinity of Qui Nhon on that date and traveling to the Republic of Vietnam. See Stoddard (DD-566) - November 1968, Logbooks of U.S. Navy Ships and Stations, Record Group 24: Records of the Bureau of Naval Personnel, 1798 – 2007, National Archives and Records Administration, https://catalog.archives.gov/id/172642932 (last visited Feb. 18, 2021). This information is also consistent with the information in the Veteran’s military personnel records reflecting that his service aboard the USS Stoddard on this date was during a period when it was functioning in the Vietnam area of operations. The Veteran has also asserted that the USS Stoddard had a 3 inch/50 caliber gun mount, and he submitted an article noting that this type of weapon was used on many United States Navy ships from 1946 through 1990. The article further detailed that the range of these guns with a 13-pound AA Shell was 14,600 yards, a distance which the Board notes converts to approximately 7.2 nautical miles. Thus, the Veteran contended that the ship would need to be within at least 12 nautical miles of the Republic of Vietnam in order to hit any target. The Veteran is competent to report the types of weapons that were used aboard the USS Stoddard, especially in light of his experience working as a torpedoman's mate seaman. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds his report to be credible as it is consistent with the article’s report that this type of weapon was used on United States Navy ships during the Veteran’s period of service aboard the USS Stoddard in November 1968. The Board must consider the Veteran's statements along with the other evidence of record in determining whether he served within 12 nautical miles offshore of Vietnam. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). Based on the foregoing, the Board finds that the evidence is at least evenly balanced as to whether the Veteran served in the waters within 12 nautical miles offshore of Vietnam during the Vietnam War era. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran served offshore of the Republic of Vietnam as that term is defined in 38 U.S.C. § 1116A. As he served offshore of the Republic of Vietnam aboard the USS Stoddard during the Vietnam War era, his exposure to herbicide agents is presumed. Given this presumed exposure and the Veteran's diagnosis of diabetes mellitus type II, the requirements for presumptive service connection for diabetes mellitus type II based on herbicide agent exposure are met, and service connection for diabetes mellitus type II is therefore granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.