Citation Nr: 0830612 Decision Date: 09/10/08 Archive Date: 09/16/08 DOCKET NO. 06-33 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION The veteran represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD S. A. Mishalanie, Counsel INTRODUCTION The veteran served on active duty from March 1965 to December 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In August 2008, the veteran testified at a hearing before the undersigned using video-conferencing technology. FINDINGS OF FACT 1. The veteran stepped foot in Vietnam during service in the Vietnam War era. 2. The veteran has current diabetes mellitus that is present to a compensable degree. CONCLUSION OF LAW Diabetes mellitus was incurred during service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.1, 3.6, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Since the Board is granting the claim for service connection for diabetes mellitus, the claim is substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Governing Statutes and Regulations Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). In certain circumstances, a disease associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309 (e). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 C.F.R. § 3.307(a). Diseases associated with exposure to certain herbicide agents (listed under § 3.309(e)) can be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. See 38 C.F.R. § 3.307(a)(6). Type 2 diabetes (or diabetes mellitus) is one of the diseases associated with herbicide agents under § 3.309(e). In order to be service-connected under 38 C.F.R. § 3.309(e), the diabetes mellitus must have become manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii). Legal Analysis At the veteran's August 2008 hearing, he testified that he had temporary duty at Udorn Air Force Base (AFB) in Thailand from November 1967 to February 1968. He said that when he flew back to his permanent assignment in Okinawa, his plane had a layover in Da Nang, Vietnam. He said that during the layover, the plane was refueled and he left the airplane for an hour. His military personnel records confirm that he had temporary duty at Udorn AFB during this time period. VA treatment records and private medical records indicate the veteran has a diagnosis of diabetes mellitus manifest to a degree of 10 percent or more. A July 2001 medical record from West Virginia University indicates he had a 15-year history of diabetes mellitus and had been under treatment with insulin for five years. In this case, the question is whether the veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides. "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). In a July 1997 opinion, VA's General Counsel explained that this definition includes personnel who were not actually stationed within the borders of the Republic of Vietnam, but were present within the Republic's borders for duty or visitation purposes. VAOPGCPREC 27-97 (July 23, 1997). VA outpatient treatment records show that the veteran has insulin dependent type II diabetes mellitus. This evidence shows that the disease is present to a compensable degree. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2008). The evidence that the veteran visited the Republic of Vietnam consists of his statements and testimony that his plane had a layover in Da Nang on the way back to Okinawa and that he exited the plane. He is competent to provide these statements. Furthermore, his statements have been consistent and credible. While there is no official service department record of the layover and deplaning, there is no statutory or regulatory requirement for such corroboration. Resolving all reasonable doubt in his favor, the Board finds that he had visitation in the Republic of Vietnam during the Vietnam era and service connection is warranted for diabetes mellitus on a presumptive basis. Resolving all benefit of the doubt in the veteran's favor, his claim for service connection for diabetes mellitus is granted. See 38 U.S.C.A. § 5107(b) (West 2002); see Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs