Citation Nr: 21011011 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-49 418 DATE: February 26, 2021 ORDER Entitlement to service connection for Diabetes Mellitus, Type II, to include as due to herbicide exposure, is granted. FINDING OF FACT 1. The Veteran was exposed to herbicide agents, including Agent Orange, during service. 2. The Veteran served on active duty in the Udorn Royal Thai Air Force Base. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for diabetes mellitus, type II, has been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army from June 1970 to April 1972. The Veteran served in Thailand from 1970 to 1972 to include service at the Udorn Royal Thai Air Force Base. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2017 Rating Decision issued by the Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran filed a timely Notice of Disagreement (NOD) in February 2017. The RO issued a Statement of the Case (SOC) in August 2017. In March 2019 the Board issued a decision, remanding the issue of service connection for Diabetes Mellitus, Type II. The matter was remanded to have a Joint Services Records Research Center inquiry completed. The inquiry was completed, and the RO issued a Supplemental Statement of the Case (SSOC). This matter is now properly before the Board. The Veteran may be presumed to have been exposure to herbicide agents, to include Agent Orange, while in service and seeks service connection for Diabetes Mellitus, Type II. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases, to include Diabetes Mellitus, Type II. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The diseases listed in § 3.309(e), including Diabetes Mellitus, Type II shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Entitlement to service connection for Diabetes Mellitus, Type II. The Veteran contends that he is entitled to service connection for his Diabetes Mellitus, Type II. In November 2016, the Veteran had a VA Examination, which indicated that he was diagnosed with Diabetes Mellitus, Type II in November 2009. The diagnostic findings revealed elevated glucose and hemoglobin A1c indicating uncontrolled diabetes. The examiner noted that the Veteran’s Diabetes Mellitus, Type II is managed by restricted diet and glimepiride and metformin. In a September 2017 lay statement, the Veteran reported that he was stationed at the 7th Radio Research Field Station, in Udorn, Thailand. Exposure to toxic herbicides and defoliants reportedly occurred during performance of his official duties at the 7th Radio Search Field Station and Udorn Royal Thai Air Force Base. According to the Veteran, herbicides were frequently used and stored at both locations. In an August 2017 Memorandum of Record, the Compensation Service acknowledged review of a list of sites and facilities where tactical herbicides, such as Agent Orange, were used, stored or tested within the United States and in foreign countries. According to that list, testing of tactical herbicides were conducted only on a limited basis in Thailand from April through September 1964. However, Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972, contains evidence that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand to remove foliage that provided cover for enemy forces. VA determined that herbicides used on the Thailand Base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides. The Board takes notice that the Veteran was awarded the Republic of Vietnam Service Medal and a Vietnam Campaign Medal, among other decorations for his service. See Haas v. Peake, 525 F.3d 1168, 1188 (Fed. Cir. 2008). It is undisputed that some service members who received the Vietnam Service Medal were never either in Vietnam or in its territorial waters; accordingly, those servicemembers could not properly be regarded as having served “in the Republic of Vietnam” under any definition of that phrase.” Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008). However, VA policy extends the presumption of herbicide exposure to Royal Thai Air Bases (RTAFB), including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. It is VA policy that herbicide exposure be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the RTAFB as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence from February 28, 1961, to May 7, 1975. Here, the Veteran served in the United States Army as a communications specialist and was stationed at the Ubon RTAFB. The Veteran also served near the air base perimeter. In a lay statement dated August 2014, the Veteran describes the worksite, his observations and indicated that he had many occasions to fly in for supplies from other locations where he was stationed. Udorn RTAFB was the support base where he went to every weekend. The Veteran indicated that every time he went to the Ubon RTAFB he was quartered in the same three-story barracks where he was exposed to spraying of herbicide agents. He observed nonexistence of vegetation as a result of the spraying. The Veteran also served at Lima Site 20 Alternate-Long Tieng, Laos. He was assigned there in late 1970 and reported to the Air Attache at the US Embassy in Vientiane, Laos. He worked as a special operations wing as an interpreter with an AFSC 203XO. He also worked for Air America on “Chieu Hoi” missions that attempted to induce Pathet Lao troops to defect in the Royal Laotian Government. He was there for approximately 2 months until he was injured. He indicated that he observed about 50 barrels of Agent Orange in the Petroleum Oil and Lubricants adjacent to the bomb dump on the flight line at Long Tieng. The Veteran indicated the Agent Orange barrels were clearly marked with a label on the top describing the ingredients. He noted that every time a chopper came to land large quantities of red clay dust were stirred up. He indicated that at night he would blow his nose and the dust was evident in his mucus. The Veteran’s work required him to frequent the air base perimeters as he fixed communication lines. Based on this evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran did serve at the RTFAB during the applicable presumptive period and is therefore presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Thus, an in-service event, injury or disease, specifically herbicide exposure, has been shown for the purposes of presumptive service connection. The Veteran does have a current diagnosis of Diabetes Mellitus, Type II, one of the diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). (Continued on the next page)   The Board observes the appellant’s DD 214 lists among his awards and decorations a Vietnam Service Medal, Vietnam Campaign Medal. The Board also takes note of the Veteran’s lay statement and Military Occupational Specialty required him to be exposed to herbicide agents used to remove foliage around the Thailand base perimeters. The Board notes that the Veteran observed barrels of Agent Orange and Agent Blue around the base. The Board acknowledges the Veteran was exposed to several different bases during his two-years of service in Thailand. The Board finds the record establishes that the Veteran did have herbicide exposure during the Vietnam era. There is no evidence of record that would rebut the presumption that the appellant’s diagnosed Diabetes Mellitus, Type II is related to his presumed exposure to herbicide agents while serving in Thailand. 38 C.F.R. § 3.307(d). As such, the Board concludes that criteria for entitlement to service connection have been met. 38 C.F.R. § 3.309(e). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.