Citation Nr: 0529020 Decision Date: 10/28/05 Archive Date: 11/09/05 DOCKET NO. 04-36 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus, to include as a residual of herbicide exposure in service. 2. Entitlement to service connection for erectile dysfunction, claimed as secondary to type 2 diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from June 1964 to February 1988. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision the Department of Veterans Affairs (VA) Regional office in New Orleans, Louisiana (RO). In June 2005, a hearing was held before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(b) (c) (West 2002). A motion to advance this case on the Board's docket, was granted by the Board on October 13, 2005, for good cause. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2005). FINDINGS OF FACT 1. The veteran has current medical diagnoses of type 2 diabetes mellitus and erectile dysfunction secondary to type 2 diabetes mellitus. 2. The veteran had active military service in the Republic of Vietnam within the meaning of the controlling regulations. CONCLUSIONS OF LAW 1. Type 2 diabetes mellitus is presumed to have been incurred during active military service as a result of exposure to herbicides during service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). 2. Erectile dysfunction is proximately due to, or the result of, the service-connected type 2 diabetes mellitus. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2005). Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the new law does not preclude the Board from adjudicating the veteran's claims for service connection as the Board is taking action favorable to the veteran by granting service connection; a decision at this point poses no risk of prejudice to the veteran. The veteran claims entitlement to service connection type 2 diabetes mellitus as a residual of exposure to herbicides (Agent Orange) during service. He also claims entitlement to service connection for erectile dysfunction as being caused by the diabetes mellitus. He claims that he was exposed to Agent Orange during service when served aboard aircraft that flew in to Vietnam from Taiwan. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110. 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). Service connection may also be granted when the evidence shows that a particular disability is proximately due to, or the result of, a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Further, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e)(emphasis added). The governing law provides that 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." 38 U.S.C.A. § 1116(f). VA regulations define that "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) (emphasis added). In December 2002, the veteran's private physician submitted a letter which indicated that the veteran had been diagnosed with type 2 diabetes mellitus since 1995. The physician also stated that the veteran had erectile dysfunction which was secondary to the diabetes mellitus. The veteran has a diagnosis of type 2 diabetes mellitus. However, the problem with the veteran's claim has been in establishing that he had service in the Republic of Vietnam within the mean of the controlling law and regulations to permit service connection for diabetes mellitus on a presumptive basis. The evidence of record establishes that the veteran served in the Air Force from June 1964 to February 1968. The veteran was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. Service personnel records further establish that from January 1967 to February 1968 that the veteran was stationed in Taiwan. Records further indicate that beginning in July 1967 the veteran served as a crew chief aboard C-130 aircraft. The veteran has claimed in written statements and sworn testimony before the Board that he served aboard C-130 aircraft which flew into Vietnam. He has submitted copies of photographs which he claims show him in Vietnam although it is difficult to establish this from the photos. The Board acknowledges that Air Force personnel could be awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal for service outside the Republic of Vietnam. Such service was generally in Thailand, Laos, or over-flights of Vietnam in support of operations in Vietnam. However, the evidence establishes that the veteran was based in Taiwan, which is beyond the scope of the geographical area for the award of these medals. Therefore, based on the service personnel records, the veteran's testimony, and the photographs submitted by the veteran, the only conclusion that can be reached is that the veteran served aboard C-130 flights which flew from Taiwan and landed in Vietnam. As such, he is presumed to have been exposed to Agent Orange during such service. Accordingly, the evidence supports a grant of service connection for type 2 diabetes mellitus on a presumptive basis due to Agent Orange exposure. As noted above, service connection may also be granted when the evidence shows that a particular disability is proximately due to, or the result of, a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). The medical evidence of record reveals that the veteran is diagnosed with erectile dysfunction secondary to his diabetes mellitus. Accordingly, service connection for erectile dysfunction secondary to the service-connected diabetes mellitus must be granted. ORDER Service connection for type 2 diabetes mellitus is granted. Service connection for erectile dysfunction is granted. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs