Citation Nr: 21029291 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 12-33 586 DATE: May 13, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, as due to in-service exposure to herbicide agents is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his currently diagnosed diabetes mellitus, type II, is due to in-service exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1969 to January 1971, to include service at Camp Casey, South Korea with the 2nd Battalion, 8th Artillery, 7th Infantry Division and the 1st Battalion, 31st Artillery, 7th Infantry Division. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It has been before the Board on multiple occasions. After remands in September 2013 and January 2015, the Board denied the claim in September 2016. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) and, in a December 2017, Joint Motion for Remand (Joint Motion), the parties agreed that there was insufficient development of the claim based upon the January 2015 remand for further development regarding the Veteran's claimed exposure to Agent Orange. The Board again remanded the matter in June 2018. Another Board decision was issued in May 2020, which also denied the claim for service connection for diabetes mellitus. The Veteran also appealed that Board decision to the Court. In December 2020, the Court issued an Order that granted a Joint Motion filed by counsel for both parties, vacated the Board's decision on this issue, and remanded the matter to the Board for action in compliance with the Joint Motion. Service Connection for Diabetes Mellitus, Type II The Veteran asserts that his diabetes mellitus, type II, is due to his exposure to herbicides while he was stationed at Camp Casey in South Korea, located near the Korean demilitarized zone (DMZ), during his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110; 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). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Regarding service connection due to Agent Orange exposure, VA laws and regulations provide that if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, which includes diabetes mellitus, type II. 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 (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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In evaluating the Veteran's claim for service connection on a presumptive basis under 38 C.F.R. § 3.309(e), the Board acknowledges the presence of a current diagnosis as the record is clear that the Veteran was formally diagnosed with diabetes mellitus, type II in April 2011. Diabetes mellitus, type II is also a disease enumerated in 38 C.F.R. § 3.309(e) for presumptive service connection due to Agent Orange exposure. Thus, at issue is whether the Veteran served in an applicable region during an applicable time period where Agent Orange was used. In this regard, the Veteran's military personnel records reflect that he served in Korea from May 1970 to January 1971 with the 2nd Battalion, 8th Artillery, 7th Infantry Division and the 1st Battalion, 31st Artillery, 7th Infantry Division. The Joint Service Records Research Center (JSRRC) reflects that his battalion was stationed at Camp Casey, which was approximately 13 miles from the DMZ. The records did not document the use, storage, spraying, or transportation of herbicides, nor any specific duties by the 2nd Battalion, 8th Artillery at the DMZ. While service in the area between April 1968 to August 1971 is a qualifying time period for exposure to herbicide agents, the Veteran was assigned to the 2nd Battalion, 8th Artillery, 7th Infantry Division and the 1st Battalion, 31st Artillery, 7th Infantry Division, which are not among the units for which presumption of exposure to herbicides is provided due to service in or near the DMZ. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part IV, subpt. ii, ch. 1, sec. H.4. Thus, the evidence fails to establish that the Veteran was assigned to one of the units specified by the DoD as having presumed exposure to Agent Orange. Nevertheless, the Board finds the Veteran's lay statements regarding having to perform duties along, or near, the DMZ to be credible. It is also undisputed that Camp Casey was the installation closest to the Korean DMZ during the presumptive period and that several of the units entitled to presumptive exposure belonged to the same command structure, the 7th Infantry Division, as the Veteran's unit. The Veteran submitted a prior Board decision (decided in March 1999), in which a different Veteran who served during the applicable presumptive period was granted service connection based on service at Camp Casey, determined to be near the Korean DMZ. Specifically, the decision notes that an official letter from the Department of the Army to Senator John Glenn, dated in May 1996, reflects that official records show use of 21,000 gallons of Agent Orange in Korea in 1968 and 1969 in the area of the DMZ. This letter also states that Camp Casey was in the DMZ. That Board decision also referenced another letter from the Director, United States Armed Services Center for Research of Unit Records (USASCRUR) (formerly the United States Army and Joint Services Environmental Support Group, ESG), to VA, dated in February 1998, which also confirms use of Agent Orange in Korea in 1968 and 1969, and confirms that Camp Casey was located near the DMZ. The Board notes that these two letters were requested for the Veteran in the June 2018 Board Remand and were determined to not be available. However, pursuant to the December 2020 Joint Motion, there is no indication that VA's effort to locate these documents was adequate. Although the findings and conclusions of previous Board decisions are binding only with regard to the specific case decided therein, the Board does strive for consistency in issuing its decisions. See 38 C.F.R. § 20.1303. In light of this, the Board acknowledges the probative value of its previous finding regarding a different Veteran in very similar circumstances. Accordingly, as the Veteran in the current appeal served in the applicable region in South Korea during the relevant presumptive period, and as the Board assigns probative value to his credible lay assertions, the Board resolves all reasonable doubt in his favor and finds that exposure to herbicides is conceded. Thus, service connection for diabetes mellitus, type II, on a presumptive basis is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.