Citation Nr: 0419974 Decision Date: 07/23/04 Archive Date: 08/04/04 DOCKET NO. 03-17 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from May 1969 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) of Columbia, South Carolina. FINDINGS OF FACT 1. The veteran flew in several combat missions over South Vietnam, twice landed and disembarked onto the soil in the Republic of Vietnam. 2. The veteran had "service in the Republic of Vietnam" as defined for purposes of VA compensation benefits. 3. The veteran has a diagnosis of type II diabetes mellitus. 4. The veteran is shown to have been exposed to an herbicide agent during service, and his diagnosed type II diabetes mellitus is shown to be causally or etiologically related to his military service. CONCLUSION OF LAW Diabetes mellitus, type II was incurred in or aggravated by active service as a result of herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA is applicable in this case. The Act and implementing regulations essentially provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim and also includes new notification provisions. In the recently decided case of Pelegrini v. Principi, (No. 01-944, June 24, 2004), referred to as Pelegrini II, the United States Court of Appeals for Veterans Claims (Court) essentially held that VA must provide notice "upon receipt" and "when" mandate that notice precede an initial unfavorable AOJ (agency of original jurisdiction) decision on a service-connection claim. For the reasons enumerated below, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events is not shown to have any effect on the case, or to cause injury to the veteran. As such, the Board concludes that any such error is harmless, and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). In the present case, notice was given the veteran in a November 2002 letter prior to the rating action in December 2002. He was advised of the applicable law and regulations in the June 2003 statement of the case. Accordingly, the Board concludes it should proceed, as specific notice as to which party could or should obtain which evidence has been provided in effect and no additional pertinent evidence appears forthcoming. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The claimant has sufficient notice of the type of information needed to support said claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including the Veterans Claims Assistance Act of 2000, has been satisfied with respect to said issue on appeal. Accordingly, appellate review may proceed without harm or prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background and Analysis The veteran is seeking entitlement to service connection for diabetes mellitus, type II, to include as a result of herbicide exposure during active service. The Board has carefully reviewed the evidence and statements made in support of the veteran's claim and finds that, for reasons and bases to be explained below, a preponderance of the evidence is against the veteran's service connection claim and service connection therefore cannot be granted. The Board notes that with respect to claims based on exposure to herbicides, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e) (2003). Diabetes mellitus must be manifest to a degree of 10 percent or more at any time after active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 C.F.R. § 3.307(a)(6)(ii) (2003); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2003). VA's General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic of Vietnam. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961 and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. Similarly, in another precedent opinion, the VA General Counsel concluded that the term "service in Vietnam" does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace. See VAOPGCPREC 7-93. Again, a showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam. In this case, the veteran claims that he was exposed to Agent Orange when he flew in combat missions over South Vietnam. Although he served during the Vietnam Era his DD214 does not reflect that he had service in Vietnam, in country, during the Vietnam Era. However of record is a copy of Form ADC 151, Vietnam Combat Flight Information, dated July 1971, which shows that the veteran had 51.7 flight hours on 5 combat missions between June 6 and June 18 in 1971 on an EC121T aircraft. In his substantive appeal, received in June 2003, the veteran stated that he landed twice in Vietnam, and disembarked from the aircraft. During a RO hearing in March 2004 the veteran testified that he was a radio operator on an EC-121, early warning aircraft, which was stationed out of Khorat Airforce Base in Thailand. He testified that depending on mission requirements, he normally flew over South Vietnam, off the coast of South Vietnam or over Cambodia. His main job was to monitor for enemy fighters and to check in and out aircraft, helicopter gunships or any other aircraft that flew into his area of responsibility. He testified that landing in Vietnam was not a normal part of his responsibility. He testified, however, that of the five combat missions over South Vietnam the aircraft was required to land on two occasions, one of which was at Tan Son Nhut because of a red alert at the Khorat Airforce Base in Thailand. He testified that he was on the ground for about 1-1/2 hours. The Board finds that the veteran's military duties did include service in Vietnam as that term is applied in VA regulations pertaining to Agent Orange claims. See VAOPGCPREC 7-93. The veteran has twice indicated that his aircraft landed in Vietnam and he as made statements that he left the plane on both occasions. This meets the criteria for service "on the ground in Vietnam". There has been no development of facts by the RO to refute his statements. The veteran has a current diagnosis of diabetes mellitus, type II. Resolving all doubt in the veteran's favor, we conclude that the veteran actually served in Vietnam, and thus could be presumed to have been exposed to Agent Orange. ORDER Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2