Citation Nr: 21031008 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-10 110 DATE: May 20, 2021 ORDER Entitlement to service connection for type II diabetes mellitus (diabetes) is granted. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam and therefore is presumed to have been exposed to herbicide agents during service. 2. The presumption that the Veteran's diabetes was incurred by in-service exposure to herbicide agents has not been rebutted. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes are met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1964 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although a prior unappealed August 2009 rating decision addressed service connection for diabetes, additional relevant official service department records were associated with the claims file in March 2014 that existed and had not been associated with the record when VA first decided the claim, warranting reconsideration of the same. 38 C.F.R. § 3.156(c). The Veteran testified before the undersigned Veterans Law Judge in May 2021. 1. Entitlement to service connection for diabetes is granted. 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide agent exposure include diabetes, if manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease. See 38 C.F.R. § 3.307(d). Recently, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit held that the phrase "the Republic of Vietnam" includes the 12 nautical mile territorial sea of Vietnam. Procopio, 913 F.3d at 1379. As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. Id. at 1380-81. Here, the Veteran is currently diagnosed with diabetes, requiring use of an oral hypoglycemic agent, and his need for a restricted diet is presumed, given the nature of his disability. See March 2019 VA treatment record; 38 C.F.R. § 4.119, Diagnostic Code 7913. Therefore, the Veteran's diabetes is of a compensable degree and the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran does not report, nor do his service treatment records (STRs) identify any complaints, treatment for, or diagnosis of diabetes or symptoms indicative of diabetes. However, his STRs indicate that he served on the USS Sioux (AFT-75) from January 1970 to July 1971. Furthermore, a March 2015 response from the Joint Services Records Research Center reflects a determination that the Veteran was aboard the USS Sioux which was "in the official waters of Vietnam" from June 29, 1970 to August 28, 1970 and from September 729, 1970, finding that the ship conducted operations at Da Nang, Cam Rahn Bay, and Vung Tau in the Republic of Vietnam. Da Nang Harbor is clearly within the 12 nautical mile boundary which defines the territorial seas. Moreover, deck logs of the USS Sioux reflect positional coordinates place the ship within the 12 nautical mile territorial sea of Vietnam on multiple occasions in 1970 while the Veteran was aboard the ship; specifically, at 10-15.3 N latitude and 107-06.2 E longitude; 11-48.3 N latitude and 109-18 E longitude; 16-10 N latitude and 108-13 E longitude. Therefore, the Board takes judicial notice that these deck logs confirm the that Veteran was geographically within the 12 nautical mile territorial sea of Vietnam during active duty. Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (allowing for taking of judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201(b)). Thus, the Board finds that the Veteran meets the criteria for having service in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents during service. Additionally, the Board finds that there is insufficient evidence to rebut the presumption that the Veteran's diabetes is related to his in-service exposure to herbicide agents, as there is no competent medical opinion of record clearly attributing the same to intercurrent causes. Accordingly, the Board finds that presumptive service connection for diabetes is established. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.