Citation Nr: 22009110 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 19-01 220 DATE: February 16, 2022 ORDER Service connection for type II diabetes is granted. FINDINGS OF FACT 1. The Veteran had regular contact with base perimeter during service in Thailand. 2. The Veteran's type II diabetes mellitus is related to exposure to herbicides in service. CONCLUSION OF LAW The criteria for service connection for type II diabetes have been met. 38 U.S.C. §§ 1110, 1116, 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 from October 1968 to September 1972. The case is on appeal from a May 2017 rating decision. In July 2021, the Veteran testified at a Board hearing. The Board notes additional evidence has been associated with the Veteran's claims file since the issuance of the November 2018 statement of the case (SOC), to include in December 2021. However, in light of the decision herein to grant service connection for diabetes, there is no prejudice to the Veteran in proceeding with appellate consideration of this issue without first remanding the matter to the RO for its review of the additional evidence in the first instance. See 38 C.F.R. § 20.1305(c). 1. Whether new and material evidence has been received to reopen a claim of service connection for type II diabetes. The Veteran's claim was denied several times in the past. Most recently, by an October 2015 rating decision, a claim to reopen service connection for type II diabetes was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in January 2017. No new evidence or notice of disagreement was received by VA within one year of the issuance of the October 2015 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for type II diabetes is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also July 2021 Board Hearing testimony. 2. Service connection for type II diabetes. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran who, during active military, naval, or air 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 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. 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 or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Where a veteran was exposed to an herbicide agent during active military, naval, or air service and type II diabetes mellitus or ischemic heart disease become manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307 (a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Additionally, VA has determined that there was use of herbicides on or near the perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. See https://www.publichealth.va.gov/ exposures/agentorange/locations/thailand.asp. If a veteran served in Thailand during the Vietnam era, and provided perimeter security on Royal Thai Air Force Bases (RTAFB) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang, or was stationed on small Army installations as a member of the military police (MP), security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. VA is responsible for determining whether there is not an approximate balance of positive and negative evidence, with the veteran prevailing in that event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran maintains that his currently diagnosed diabetes is related to in-service herbicide agent exposure while serving in Thailand. Specifically, he contends that he was exposed while performing his duties at the at U-Tapao RTAFB, placed him at or near the perimeter. Lending credibility to the Veteran's assertions are his service personnel records (SPRs) which reflect that he served two tours of duty at the U-Tapao RTAFB including from October 1969 to October 1970 and in 1972. See April 2013 Military Personnel Record. Further supporting his presumed herbicide exposure is his military specialty of Aircraft Maintenance Specialist, attached to a Field Maintenance Squadron. Performance evaluations reflect that as a Sergeant and maintenance flight member, his duties included performing launch, recovery, defueling, refueling, and phase inspections on assigned aircraft, assisting in towing operations, and training newly assigned personnel. His knowledge of the KC-135 aircraft was noted to have been an asset to the Air Force. The Veteran has also provided pictures and maps of U-Tapao RTAFB that show the flight line in relation to the base perimeter. Although the flight line is not on the perimeter, portions of the flight line and end-of-runway are near the base perimeter. Additionally, the Veteran provided statements that the Veteran's duties as an aircraft mechanic placed him on the flight line. The Veteran's personnel records support these statements, which the Board finds were likely to place the Veteran on all areas of the flight line while stationed at U-Tapao RTAFB. Although the Veteran's MOS was not one that VA has established as being exposed to herbicide agents on the base perimeter, the Board finds that his specialty as a maintenance flight member (requiring him to work on aircraft at the end of the flight line close to the perimeter) and/or related duties that would reasonably require him to travel near the perimeter of the air base. Based on a facts-found basis, the Board finds his statement regarding his duties near the perimeter of the U-Tapao RTAFB to be competent and credible. The Board notes the Veteran's assertion that he and other fellow service members in his barracks received M-16 training in order to assist MP due to a shortage of security staff while stationed at U-Tapao RTAFB. See January 207 21-4138 (Statement In Support of Claim); see also July 2019 Board hearing testimony. He noted having traveled to the perimeter of the base with the MP, adding that on at least one occasion, after crossing the perimeter, shots were heard in the distance and the MP stated that they were in Vietnam territory and ordered them out of the truck and onto the ground to take cover. Although the duty is not documented in the Veteran's SPRs, the Veteran stated that it was the basis for his award of the Republic of Vietnam Campaign Medal and a Vietnam Medal w/2 Bronze Stars. See January 2017 VA 21-4138 (Statement in Support of Claim); DD Form 214. In addition, the Veteran's SPRs reflect that he was assigned to the wheel and tire shop in 1972 which the Veteran and his representative maintain was located on the perimeter. See July 2021 Board hearing testimony; see also April 2011 Military Personnel Record. As such, considering all evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's duties while stationed at the RTAFB at U-Tapao, Thailand, placed the Veteran near the perimeter of the base, resulting in exposure to herbicides. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Moving forward, the Veteran is currently diagnosed with type II diabetes mellitus which is listed as presumptively due to herbicide exposure. For the limited purpose of resolving this appeal, the Board assumed it has manifested to at least a degree of 10 percent. See December 2021 CAPRI records. Moreover, there is no affirmative evidence to the contrary. Accordingly, given his presumed exposure during service in Thailand during the Vietnam Era, presumptive service connection for diabetes is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.