Citation Nr: 0901120 Decision Date: 01/12/09 Archive Date: 01/22/09 DOCKET NO. 07-03 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Ellis Boyle, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The veteran served on active duty from July 1960 to April 1964. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2008. A transcript of the hearing is associated with the claims file. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2008). FINDINGS OF FACT 1. The veteran visited the Republic of Vietnam during the Vietnam era. 2. The veteran has been diagnosed with diabetes mellitus. CONCLUSION OF LAW The criteria for presumptive service connection of diabetes mellitus due to exposure to herbicides are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini II, 18 Vet. App. at 115. VA notice and duty to assist letter in July 2004 satisfied VA's duty to notify under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159, as this letter informed the appellant of what evidence was needed to establish the benefits sought, what VA would do or had done, and what evidence the appellant should provide, and informed the appellant that it was his responsibility to make sure that VA received all requested records necessary to support the claims that are not in the possession of a Federal department or agency. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Although the veteran was not provided adequate notice on these latter two elements, given that the Board has found in favor of service connection, the 38 U.S.C.A. § 5103 notice requirements are rendered moot. The Board is not aware of the existence of additional relevant evidence in connection with the veteran's claims that VA has not sought. The veteran's service treatment records, VA treatment records, buddy statements, statements from the veteran and his representative, and Internet research regarding herbicides have been associated with the record. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. 38 C.F.R. § 3.103. Pertinent Laws and Regulations In general, service connection may be granted for disability resulting from a disease or an injury incurred in or aggravated by active military service. 38 U.S.C.A § 1110; 38 C.F.R. § 3.303(a). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service. 38 U.S.C.A. § 1116(f). The Board notes that "service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam. 38 C.F.R. § 3.313. The VA General Counsel has determined that this regulatory definition, which permits certain personnel not actually stationed within the borders 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. 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 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 the purposes of 38 U.S.C.A. § 101(29) (A). 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. If a veteran was exposed to an herbicide agent during active service and has contracted diabetes mellitus to a degree of 10 percent at any time after service, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. A compensable degree of diabetes mellitus is a finding of diabetes mellitus which is managed by a restrictive diet. 38 C.F.R. § 4.119, DC 7913. Analysis According to his Physician's Statement for Diabetes, the veteran was diagnosed with diabetes mellitus in 1991. The veteran contends that his diabetes mellitus was caused by herbicide exposure while in service. The veteran served during the Vietnam Era, but was not stationed in either the Republic of Vietnam or the demilitarized zone (DMZ) in Korea. A July 2006 Request for Information found no records of exposure to herbicides and no record of actual duty or visitation to Vietnam. In order to satisfy the conditions for presumptive service connection under 38 C.F.R. § 3.307, the veteran must show actual visitation within the Republic of Vietnam. The veteran contends that he was exposed to herbicides when his plane stopped in Vietnam in April 1963 on his way to Thailand from the United States, in April 1964 on his way back from Thailand, then again on his way to the Philippines for a medical examination while stationed in Thailand, and on his way back from the Philippines. The veteran's service personnel records confirm that he was stationed in Thailand between April 1963 and April 1964, the flight numbers, but not the actual flight plans are given. His January 1964 separation examination confirms a surgery consult at the Clark USAF Hospital in the Philippines. In a February 2008 buddy statement, F.C., likewise recalled landing at Tan Son Nhut airport in Ho Chi Minh City, Vietnam, both on the way to Thailand and on the way back to the United States. Similarly, an e-mail exchange between the veteran and a man who identifies himself as a former Pan Am pilot indicates that it was not uncommon for charter flights carrying troops bound for Thailand to stop in Vietnam along the way. However, neither of these individuals has indicated that they were in fact with the veteran during any of these layovers. Nevertheless, a lay person is competent to testify as to where a plane stopped in route to its final destination. Extending the veteran the benefit of the doubt, the Board finds credible the veteran's testimony that he had brief layovers in the Republic of Vietnam during these flights and that he disembarked during these layovers. As such, the veteran has shown actual visitation in the Republic of Vietnam and the presumption attaches. Accordingly, service connection is warranted for diabetes mellitus. In reaching this decision, the Board has extended the benefit of the doubt doctrine to the veteran. 3 8 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs