Citation Nr: 21012408 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-51 159 DATE: March 4, 2021 ORDER Entitlement to service connection for type 2 diabetes is granted. Entitlement to service connection for coronary artery disease is granted. FINDINGS OF FACT 1. The Veteran served in Korea from August 1969 to September 1970 and the evidence is at least in equipoise as to whether he served in or near the Korean Demilitarized Zone (DMZ); resolving reasonable doubt in his favor, he is presumed to have been exposed to herbicide agents during his active military service. 2. Medical evidence shows current diagnoses of type 2 diabetes and coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for service connection for type 2 diabetes as due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116B; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for service connection for coronary artery disease as due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116B; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to January 1972. A virtual hearing was held before the undersigned Veterans Law Judge (VLJ) in October 2020. The record was held open for 30 days and additional evidence was received with a waiver of RO jurisdiction. Service Connection Entitlement to service connection for type 2 diabetes mellitus Entitlement to service connection for coronary artery disease In February 2015, VA denied service connection for type 2 diabetes mellitus and coronary artery disease status post myocardial infarction and percutaneous coronary intervention, claimed as ischemic heart disease. Additional evidence was added to the record within the one-year appeal period and in January 2016, VA confirmed and continued the previous denials. Thereafter, the Veteran disagreed and perfected this appeal. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran does not assert that the claimed disorders began during active service and there is no evidence of diabetes or cardiovascular disease manifested to a compensable degree within one year following discharge from service. Rather, the Veteran contends that the claimed disorders are due to in-service exposure to herbicide agents. If a claimant was exposed to an herbicide agent during active military, naval, or air service, certain conditions to include type 2 diabetes and ischemic heart disease shall be presumed to be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Ischemic heart disease includes atherosclerotic cardiovascular disease including coronary artery disease. Id. Applicable regulations state that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Recent legislation has added section 1116B to 38 U.S.C. providing for a presumption of herbicide exposure for certain veterans who served in Korea, effective January 1, 2020. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (2019) (codified at 38 U.S.C. § 1116B). Specifically, the legislation provides that the presumption of exposure will apply to a veteran “who, during active military, naval, or air service, served in or near the Korean [DMZ], during the period beginning on September 1, 1967, and ending on August 31, 1971.” Service personnel records indicate that the Veteran served in Korea from August 1969 to September 1970 and was assigned to “Co B 11th Engr Bn.” The records also indicate that he was at Camp Stanley and Camp Essayons, and that his duties included heavy dump truck driver and combat construction specialist. The Veteran’s unit is not one of the units on the list provided by the DoD which is currently known to have operated near the DMZ during the periods that herbicides were applied. Responses received from the Joint Services Records Research Center (JSRRC) indicate that in 1969 the Veteran’s unit was located at Camp Red Cloud, South Korea and was involved in numerous construction projects to include at Camp Stanley and Camp Essayons. In 1970, his unit was also involved in various projects at Camp Stanley and other locations. The unit histories did not document the use, storage, spraying, or transportation of herbicides. Additionally, they did not mention or document any specific duties performed by members of the Veteran’s unit along the DMZ. In December 2015, VA completed a Formal Finding indicating that it was unable to corroborate that the Veteran was exposed to Agent Orange. Notwithstanding, the Veteran has provided lay testimony that he served in or near the DMZ. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). In a March 2015 statement, he reported that while stationed in Korea he was assigned to an engineer battalion at Camp Stanley. He indicated that he was a truck driver and drove all over Korea and did work on roads, culverts, and ditches. Around April to May 1970, his platoon was temporarily transferred to the DMZ for work. The military was closing some compounds up there and they were sent to salvage and haul equipment. Around July 1970, he transferred to Camp Essayons were he drove a tractor trailer and ran a bulldozer until he left Korea. At the October 2020 hearing, the Veteran provided similar testimony. He described in detail his duties and what he saw when he was up near the DMZ. In an October 2020 supplemental informal hearing presentation, the representative cited to internet articles showing that Camp Stanley was part of the Red Cloud garrison which is composed of Army installations near the Korean DMZ. On review, the record contains both positive and negative evidence. As above, per the responses from JSRRC, official documentation does not show that the Veteran’s unit used, stored, sprayed or transported herbicides nor does it document that any specific duties were performed by members of his unit along the DMZ. The Veteran’s service records along with his lay statements, however, support finding that he served in or near the DMZ. That is, he was at bases in close proximity to that area. Further, he is competent to report his movements during service. The Veteran’s statements that he helped dismantle camps and salvage and/or haul equipment out of the DMZ are arguably consistent with his assignments as documented in his personnel records during his service in Korea. The Board finds no reason to doubt the credibility of the Veteran’s statements in this regard. On review, the evidence is at least in equipoise as to whether the Veteran served in or near the DMZ during the relevant period. Resolving reasonable doubt in his favor, in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.102. (Continued on the next page)   In support of his claims, the Veteran submitted disability benefits questionnaires completed by his private physicians in September 2014. These show current diagnoses of type 2 diabetes and coronary artery disease. The record does not contain probative evidence to the contrary. Given the foregoing, presumptive service connection for type 2 diabetes and coronary artery disease is warranted. See 38 C.F.R. § 3.309(e). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.