Citation Nr: 21023851 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-20 523 DATE: April 21, 2021 ORDER Entitlement to service connection for diabetes mellitus type 2 for substitution purposes is granted. FINDINGS OF FACT 1. By resolving all reasonable doubt in favor of the appellant, the evidence demonstrates that the Veteran served along the Korean Demilitarized Zone (DMZ) during a period of conceded herbicide agent usage. 2. The Veteran’s diabetes mellitus is presumed to have been caused by his exposure to herbicides in service. CONCLUSION OF LAW The criteria for establishing service connection for diabetes mellitus type 2 for substitution purposes are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from April 1968 to April 1971. He died in December 2018. The appellant, who is the Veteran’s surviving spouse, has been properly substituted as the claimant on appeal. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2014 rating decision from the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Prior to his death, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in November 2018. The Board remanded this case to the AOJ for additional development in April 2019. The AOJ substantially complied with the Board remand directives and the case is now returned for appellate review. 1. Entitlement to service connection for diabetes mellitus type 2 The Veteran contended, and the appellant contends, that the Veteran’s diabetes mellitus is related to his exposure to herbicide agents while serving in or near the Korean Demilitarized Zone (DMZ) while the Veteran was stationed in Korea. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection is presumed for certain diseases, including diabetes mellitus type 2, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 ; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Applicable regulations previously stated 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). The DMZ cuts the Korean Peninsula roughly in half following the geographic 38th parallel north latitude and is approximately 155 miles long and 2.5 miles wide. DoD has advised that herbicides were not applied within the DMZ but were applied in some adjacent areas. Specifically, DoD has reported that herbicides were applied between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line. The herbicide agents were applied through hand spraying and hand distribution of pelletized herbicides; there was no aerial spraying. DoD also has provided VA a list of the military units that are currently known to have operated in that area during the period that herbicides were applied. See 74 Fed. Reg. 36,640, 36,641. While the appeal was pending, Congress enacted, and the President signed into law, the Blue Water Navy Vietnam Veterans Act of 2019. The new law codified VA's regulation related to veterans who served in Korea in a new section of the U.S. Code 38 U.S.C. § 1116B, though with modifications. Notably, it contains no reference to units designated by DoD; it simply refers to veterans who "served in or near" the DMZ. Thus, the Blue Water Navy Vietnam Veterans Act of 2019 removed the limitation that the presumption applied only to veterans who served in the DoD-specified units. Compare 38 C.F.R. § 3.307 (a)(6)(iv), with Pub. L. No. 116-23, § 3(a), 133 Stat. 966, 969 (2019). Specifically, under 38 U.S.C. § 1116B, a veteran who developed a disease recognized as presumptively related to herbicide exposure, and who served during active military, naval, or air service, in or near the DMZ, during the period beginning on September 1, 1967, and ending on August 31, 1971, shall be considered to have been incurred or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service. See 38 U.S.C. § 1116B. Once in-service exposure to Agent Orange (either presumptive or actual) has been established, a veteran may obtain service connection on a presumptive basis for any of the diseases found to be associated with such exposure. Despite the presumptive regulations, a claimant may also establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for 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 (Fed. Cir. 1994). The Veteran has a current diagnosis of diabetes mellitus type 2 as evidenced by a March 2014 VA treatment record. At issue is whether the Veteran was exposed to herbicide agents while on active duty. Service personnel records confirm that the Veteran was stationed in Korea from February 1969 to March 1970. During his time in Korea he was stationed at Camp St. Barbara and was attached to Co. D. 4th Maint. Bn, which was under the 21st. Direct Support Group. His military occupational specialty (MOS) was auto electric repairman (fuel and electric system repairman). The Veteran noted on a November 2013 statement that as a vehicle mechanic he routinely worked on tactical trucks and jeeps that were operating in the defoliated DMZ. The Veteran also provided sworn testimony at the November 2018 Board hearing that he was a support personnel and often travelled around Korea from his base out of Camp St. Barbara. See November 2018 Board hearing transcript, p. 3. He recalled roads that he would drive to go to different camps that would take him near the DMZ border to bring materials such as batteries, tires, and other small items that could be fixed right there. Id. He stated that he was stationed in Korea for about 11 months and that he had to travel to the DMZ and the border about three times per week. Id. at p. 4. It was asserted in October 2018 that the Veteran was at Camp St. Barbara, which was about 3000 meters from the Korean DMZ; and that his MOS was auto electric repairman. A December 2013 formal finding is of record that information required to corroborate exposure to herbicides described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC). It was noted that U.S. Army personnel and service treatment records provided no evidence of exposure to herbicides. The Veteran was assigned to Co. D., 4th Maint. Bn, USARPAC-Korea from February 5, 1969 to March 1, 1970. It was noted that the unit the Veteran served in was not a unit or other military entity that DoD had identified as operating in or near the Korean DMZ during the qualifying time period. Thus, the memorandum noted that exposure to herbicides based on service in or near the Korean DMZ could not be conceded. After the Board remanded the case, a request was sent to JSRRC to verify exposure to herbicide agents during the Veteran’s service at Camp St. Barbara in December 1969 while assigned to Co. D., 4th Maint. Bn, USARPAC-Korea. It was noted that the Veteran asserted exposure to Agent Orange during his service in Camp St. Barbara in December 1969, which was in the same proximate location as the DMZ, only 3000 meters away. He also asserted exposure to vehicles that had been sprayed with Agent Orange. JSRRC responded in November 2020 that a professional researcher from the Veterans Benefits Administration, Compensation Service, Records Research Center had completed comprehensive research on the Veteran’s claimed exposure to Agent Orange while stationed at Camp St. Barbara on December 1, 1969. It was noted that unit histories from 1968 to 1969 submitted by the 1st Battalion, 17th Artillery (1st Bn, 17th Arty) were reviewed. The histories documented that the unit was stationed at Camp St. Barbara, located approximately 11 miles from the DMZ. However, the histories did not document the use, storage, spraying, or transportation of herbicides. In addition, they did not mention or document any specific duties performed by the unit members along the DMZ. According to military records, herbicides were used in Korea between 1968 and 1969. The documentation states that Republic of Korea Armed Forces used chemical herbicides along the southern boundary of the DMZ from April 1968 to July 1969, as a part of counter-infiltration operations. The herbicides were applied using hand sprayers and M8A2 trailer mounted decontamination apparatus. Although United States Army Non-Commissioned Officers advised Republic of Korea personnel in the use of herbicides, no United States personnel were known to have been actually involved in their application. The command history was reviewed in an attempt to substantiate the Veteran’s claimed incident/ event. The conclusion was that there was no evidence to support the documentation of the claimed incident/ event. The appellant’s representative asserted in March 2021 that the Veteran’s unit was listed under the 21st Direct Support Group, which provided direct support maintenance to the 2nd and 7th Infantry Divisions, which were identified by the Department of Defense as serving along the DMZ in Korea, although again, recent changes in the law removed the limitation that the presumption applies only to veterans who served in the DoD-specified units. See http://www.koreanveterans.org/documents/21st_Direct_Support_Group_AnnualHistorySupplement_CY1969.pdf; see also 74 Fed. Reg. 36,640, 36,642 (listing the 2nd and 7th Infantry Divisions as serving along the DMZ where herbicides used between April 1968 and July 1969). This is consistent with the Veteran’s personnel records, which show that his unit, Co. D. 4th Maint. Bn, was under the 21st Direct Support Group; and his testimony at the Board hearing that he was a support personnel and often travelled around Korea from his base including to areas at or near the DMZ. See November 2018 Board hearing transcript, p. 3. Based on the foregoing evidence, the Board finds that exposure to herbicide agents has been demonstrated by the particular facts in this case. Specifically, VA has conceded that herbicide agents were used at or near the Korean DMZ during the period of the Veteran’s service; thus, if the Veteran demonstrates presence in or near the Korean DMZ during his period of service, herbicide agent exposure must be conceded in this case. The evidence against finding exposure to herbicide agents in this case is solely based on the response from JSRRC. In the response, however, JSRRC stated that the unit histories for the 1st Bn, 17th Arty did not document any use, storage, spraying or transportation of herbicides by the Veteran’s unit. The Board notes, however, that the Veteran’s allegations of exposure did not stem from any of these types of activities by 1st Bn, 17th Arty, but rather by his presence at other sites where herbicide agents were known to have been used while he was assigned to Co. D. 4th Maint. Bn, under the 21st Direct Support Group. Consequently, the JSRRC response to this effect is of lesser probative weight in this case. Moreover, JSRRC stated that the unit histories do not “document any specific duties performed by the unit members along the DMZ.” The Board notes that the lack of official documentation is not evidence that activities or duties at or along the DMZ by the Veteran’s unit did not take place. Rather this is neither positive nor negative evidence to that effect. In short, the unit histories do not provide any evidence either for or against the Veteran’s allegations that he visited areas in or near the Korean DMZ during his period of service. In contrast, the Veteran’s service records and the lay statements and testimony of the Veteran, as well as the appellant’s representative’s arguments weigh in favor of finding that the Veteran was present in or near the DMZ during his period of service. These competent, credible, and probative statements and testimony explain that the Veteran, in the course of his duties as a vehicle mechanic under the 21st Direct Support Group, which provided direct support maintenance to the 2nd and 7th Infantry Divisions, which were identified by the Department of Defense as serving along the DMZ in Korea, was present at the DMZ during his period of service. His period of service was during a time which VA has conceded that herbicide agents were used at the DMZ and that presence at the DMZ presumes exposure to herbicide agents. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness’ personal knowledge); Layno v. Brown, 6 Vet. App. 465 (1994); Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency, with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)). Consequently, based on the unique facts and evidence in this matter, the Board finds that the types, places and circumstances of the Veteran’s military service are such that his exposure to herbicide agents as a result of his military service in the Republic of Korea is presumed. See 38 U.S.C. § 1154 (a). As noted, the Veteran had a current diagnosis of diabetes mellitus type 2, which is associated with exposure to certain herbicide agents, even though there is no record of such disease during service. See 38 C.F.R. § 3.309(e). Accordingly, resolving all doubt in the appellant’s favor, service connection for diabetes mellitus type II is warranted for substitution purposes. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.