Citation Nr: 0504005 Decision Date: 02/15/05 Archive Date: 02/22/05 DOCKET NO. 03-18 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the above claim. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran has diabetes mellitus, which had its onset due to herbicide (e.g., Agent Orange) exposure. CONCLUSION OF LAW Diabetes mellitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to notify and assist The duty to notify and assist has been met to the extent necessary to grant the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2004). Thus, there is no prejudice to the veteran in deciding his claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Factual background The service medical records reveal that the veteran was treated in August 1967 for injuries sustained after ejecting from his plane over Laos. Following service, the veteran received treatment from Darnall Army Community Hospital, Fort Hood, Texas. The treatment records from May 2001 reflected complaints of elevated blood sugar, hypertension, and urology. In July 2002, the veteran was afforded a VA examination. At that time, he reported that he had been exposed to Agent Orange during service and that about one to two years before the examination he began to have problems with his blood glucose, which would go as high as 167 mg percent. The veteran was diagnosed as having diabetes mellitus, type II, noninsulin-dependent, currently diet controlled. The RO requested the National Personnel Records Commission (NPRC) to verify the veteran's dates of service in Vietnam. A response was issued stating that they are unable to determine whether or not this veteran had in-country service in Vietnam. In November 2002, the RO denied the veteran's claim for service connection for diabetes mellitus as the information received from the service department indicated that he was stationed in Thailand and that he flew missions over Vietnam, but there was no evidence to indicate that he landed in Vietnam or ever set foot on Vietnam soil. In correspondence of record, the veteran contends that he flew many classified missions during the Vietnam War. During one of these missions in August 1967, he claimed that he was exposed to Agent Orange when he was shot down in Laos, just west of the Demilitarization Zone (DMZ) and forced to eject from his aircraft. He stated that he spent two hours in the jungle until he was rescued. The veteran's flight record corroborates his contentions that he was shot down as it states that he was shot down to the ground, as do his service medical records, which indicate that the veteran sustained injuries when he was forced to eject over hostile territory. III. Legal analysis Service connection means that the facts, shown by evidence, establish 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 during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2004). Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2004). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2004). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The veteran as a layperson has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board notes that while the veteran is competent to report symptoms, he does not have medical expertise. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). According to recent directives of the Department of Defense (DOD) from January 2003, the DOD received a listing from the Defense Department of locations outside of Vietnam where Agent Orange was used or tested. One of these sites was Laos, between December 1965 and 1967. As such, a veteran who was in Laos during this time period is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service connection for various listed diseases will be rebuttably presumed if they are manifest to a compensable degree within specified periods. This includes Type II diabetes mellitus (adult-onset diabetes) if manifest to a compensable degree at any time after service. 38 U.S.C.A. § 1116 (West 2002), 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2004). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d) (2004). The veteran claims that he was forced to eject from his plane over Laos in August 1967 and was stranded in a jungle in Laos for two hours before he was rescued. The veteran's service medical records and flight record support his claim that he ejected from his plane over hostile territory. Giving the veteran the benefit of the doubt, the record appears to indicate that he was in Laos and is presumed to have been exposed to herbicides (e.g., Agent Orange). 38 U.S.C.A. § 5107(b) (West 2002). There is no medical evidence of diabetes during service or for many years thereafter. An army hospital medical record from May 2001 notes the veteran had abnormal blood sugar. A VA examination in July 2002 shows that he has been diagnosed as having Type II diabetes mellitus, and the disease has been manifest to a compensable degree. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2004). Accordingly, the Board finds that the veteran's diabetes was incurred in service on a presumptive basis, and service connection is warranted. ORDER Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs