Citation Nr: 21012661 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-01 343 DATE: March 4, 2021 ORDER Entitlement to service connection for diabetes mellitus type II is granted. FINDINGS OF FACT 1. The competent and credible evidence of record in this case tends to show that the Veteran was exposed to herbicides at Korat Royal Thai Air Force Base (RTAFB) in Thailand. 2. The Veteran has a current diagnosis of diabetes mellitus type II that is presumed related to his in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, as due to exposure to herbicides agents, have been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from October 1970 to September 1973. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2013 Department of Veterans’ Affairs (VA) agency of original jurisdiction’s (AOJ) denial of service connection for diabetes mellitus type II. The Veteran timely perfected his appeal and the Board addresses this case under the legacy appeal framework. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans who, during active service, 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 an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Service incurrence for certain diseases, to include diabetes mellitus type II, will be presumed on the basis of association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. VA has recognized that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidence in the Project CHECO Southeast Asia Report: Base Defense in Thailand (CHECO Report). Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the RTAFB at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air bases perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for diabetes mellitus type II The Veteran asserts that his diabetes mellitus type II was caused by exposure to herbicides agents while in active service in Thailand during the Vietnam War. The questions in this case are whether a causal relationship or nexus exists between the Veteran’s diagnosis and his active service. The Veteran has a current diagnosis of diabetes mellitus, type II to include as noted in a May 2007 VA treatment record. As such, the first element of service connection is met. The Veteran’s military service records show that he was stationed at Korat RTAFB, Thailand from February 1972 to February 1973 as a jet engine technician. Throughout the period on appeal, the Veteran submitted lay testimony documenting his believed exposure to herbicides while in Thailand. He asserts he worked at the test pad located within 500 meters of the base perimeter fence. The evidence of record also shows that he lived in based quarters near the perimeter fence. Additionally, he contends that while living off base, he had to pass through the perimeter fence twice daily through the area that herbicides were sprayed. The Board finds the Veteran is both competent and credible in detailing his experiences at Korat RTAFB in Thailand, and how he may have been exposed to herbicide agents, to include Agent Orange. Additionally, he has submitted documents regarding the storage of Agent Orange at Korat RTAFB during the Vietnam era. The Board notes that the RO attempted to verify the Veteran’s herbicide exposure. In June 2013 and October 2016, VA memoranda indicated formal findings of lack of verification of exposure to herbicides while stationed in Thailand. However, the Board is ultimately persuaded by the Veteran’s competent and credible evidence describing his in-service experiences. Despite the fact that there is no clear evidence of herbicide exposure due to his Thailand service shown in the record, the Veteran had been consistent in his potential exposure to herbicides near the flight line and perimeter, as well as potential exposure in his living quarters. His statements were consistent with the circumstances and conditions of his service, to include his MOS and location of work with respect to the perimeter at Korat RTAFB in Thailand during the Vietnam era. 38 U.S.C. § 1154(a). The Board also notes that clear evidence is not needed, just that the evidence on a material issue be in equipoise. 38 U.S.C. § 5107(b). Here, the evidence of record, to include his military personnel records, clearly establishes that the Veteran had service at one of the designated Thailand military bases. He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. Furthermore, he has provided competent evidence that establishes service near the base perimeter, and the Board finds such testimony to be consistent with the circumstances, places, and types of his service. While the Board acknowledges the VA memoranda noting formal findings on the lack of information to verify exposure to Agent Orange, there is no evidence in the file to doubt the Veteran’s statements and so the Board finds the Veteran’s account of herbicide exposure during service to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Resolving doubt in the Veteran’s favor, this evidence establishes on a facts-found basis that the Veteran was exposed to herbicides while serving at Korat RTAFB. Given the above, the Board concludes that the Veteran is entitled to presumptions based on exposure to herbicides. See 38 C.F.R. §§ 3.307, 3.309. Because diabetes mellitus, type II, is condition for which service connection can be granted on a presumptive basis when exposure to herbicides is established, entitlement to service connection for diabetes mellitus, type II, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.