Citation Nr: 21030540 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-21 707 DATE: May 19, 2021 ORDER Entitlement to service connection for type 2 diabetes is granted. FINDING OF FACT Type 2 diabetes had its' origins in service. CONCLUSION OF LAW The criteria for service connection for type 2 diabetes have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 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 with the United States Air Force (USAF) from July 1967 to August 1972. In December 2014 and April 2017, the Board of Veterans' Appeal (Board), among other things, remanded the claim of service connection for type 2 diabetes. In a May 2019 decision issued by a Veterans' Law Judge not the undersigned, the Board denied the claim of service connection for type 2 diabetes. The Veteran appealed the May 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the May 2019 decision's denial of service connection for type 2 diabetes. In an April 2021 Brief, the Veteran's representative withdrew the personal hearing request which acted as one basis for the JMR, filed with the Board outstanding service department records which formed a second basis for the JMR, filed additional VA treatment records, and waived agency of original jurisdiction review of the additional evidence associated with the record since the agency of original jurisdiction (AOJ) issued the January 2018 supplemental statement of the case. Therefore, the Board finds that it need not delay adjudicating the decision to schedule a personal hearing, undertake additional development, or obtain a waiver of AOJ review. The Service Connection Claim The Veteran claims, in substance, that he is entitled to service connection for type 2 diabetes mellitus due to his exposure to Agent Orange while going to and from work while at Don Muang Royal Thai Air Force Base from July 1969 to September 1970 because every day he had to go through the base perimeter. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying the herbicide presumption, "service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). As to herbicide exposure due to military service in Thailand, VA has found that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Therefore, if a veteran served in the United States Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base from February28, 1961, to May 7, 1975, as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by the his military occupational specialty, performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. Also see VA memorandum entitled Herbicide Use in Thailand During the Vietnam Era. The above allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The list of diseases associated with exposure to certain herbicide agents includes, among other things, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes). 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the post-service record shows the Veteran being diagnosed with type 2 diabetes since at least 2009. See, e.g., Wende Anderson, M.D., report dated in October 2009. As to herbicide exposure, service personnel records show that the Veteran was stationed at Don Muang Royal Thai Air Force Base from July 1969 to September 1970. Moreover, as claimed in his May 2017 statement in support of claim, the Board finds that the Veteran has competently and credibly reported his duties as an administrative specialist and later as a maintenance clerk at Don Muang Royal Thai Air Force Base regularly placed him in contact with the base perimeter because he had to cross it at least twice a day-once to go to work at the communications squadron buildings and once at the end of the day to return to his barracks. See Davidson, supra. Moreover, the Board finds that the Veteran's exposure claims are supported by the maps of Don Muang Royal Thai Air Force Base and the adjacent Bangkok International Airport which show the barracks/dining areas located on Don Muang Royal Thai Air Force Base and various communications squadron buildings located within the base perimeter of Don Muang Royal Thai Air Force Base as well as located next to the "North Gate" and a cantonment area separate from Don Muang Royal Thai Air Force Base. Given the above record, the Board finds that the evidence both positive and negative as to whether the Veteran's active duty service at Don Muang Royal Thai Air Force Base from July 1969 to September 1970 included significant herbicide agent exposure is at least in equipoise. Under such circumstances, and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Therefore, the Board finds that it may apply the presumptions found at 38 C.F.R. § 3.309(e) to the current appeal. Accordingly, because the Veteran has a diagnosis of type 2 diabetes, because as explained above he has presumptive herbicide agent exposure, and because type 2 diabetes is a presumptive 38 C.F.R. § 3.309(e) disease, the Board finds that the criteria to grant the Veteran service connection for type 2 diabetes has been met and his appeal is granted. See 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.307, 3.309(e). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.