Citation Nr: 0908694 Decision Date: 03/09/09 Archive Date: 03/17/09 DOCKET NO. 04-16 308A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to Agent Orange/herbicide exposure in Vietnam. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to April 1968. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2003 rating decision of the VA Regional Office (RO) in St. Petersburg, Florida that denied service connection for diabetes mellitus, type II, to include as due to Agent Orange exposure. The appellant was afforded a personal hearing in June 2006 before the undersigned Veterans Law Judge sitting at St. Petersburg, Florida. The transcript is of record. The case was subsequently remanded by a decision of the Board dated in November 2006. In April 2008, the Board notified the appellant that his claim was subject to a stay on the adjudication of cases affected by the decision of the United States Court of Appeals for Veterans Claims (Court) in Haas v. Nicholson, 20 Vet. App. 257 (2006). In Haas, the claimant served on a naval vessel that operated off the coast of Vietnam and subsequently submitted claims of service connection for disabilities that included diabetes mellitus under regulations providing for presumptive service connection to appellants who "served in the Republic of Vietnam", and subsequently developed certain disabilities presumed to be associated with herbicide exposure. See 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. § 3.307(a) (2008). The appellant was told that once the Haas case was finally resolved, the stay would be lifted, and his case would be promptly adjudicated. The appeal has now been resolved. The Board is now able to proceed with consideration of the appellant's appeal. In correspondence received at the Board in December 2008, the Veteran claimed service connection for bilateral hearing loss, tinnitus, and a right eye condition. These matters are not properly before the Board for appellate review and they are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. Diabetes mellitus was not manifest during service or within one year of separation. 2. The Veteran reasonably had visitation in the Republic of Vietnam during the Vietnam Era as defined by VA for the purposes of demonstrating presumptive exposure to Agent Orange. 3. The Veteran has a diagnosis of type II diabetes mellitus. CONCLUSION OF LAW Diabetes mellitus may be presumed to have been incurred as the result of exposure to Agent Orange in Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he served in Vietnam and now has type II diabetes for which service connection should be granted on the basis of presumed exposure to Agent Orange or other herbicides in Vietnam. Preliminary Considerations - VA's Duty to Assist the Veteran As a preliminary matter, it should be noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was promulgated in November 2000, and has imposed duties on VA to provide notice and assistance to claimants in order to help them substantiate their claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008). However, the Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A(a)(2). In view of the Board's favorable decision and full grant of the benefit sought on appeal in this instance, further assistance is unnecessary to aid the appellant in substantiating his claim. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2008). To establish service connection, there must be evidence of an etiological relationship between a current disability and active military service. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). 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 or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2008). Under the provisions of 38 C.F.R. § 3.309(e)(2008), if a veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service and has a disease listed in 38 C.F.R. § 3.309(e), such disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. These diseases include type II diabetes. 38 C.F.R. § 3.309 (e) (2008). A veteran who served in the Republic of Vietnam during the Vietnam Era during active military, naval, or air service shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the "Vietnam Era"). 38 C.F.R. § 3.307(a)(6)(iii) (2008). "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)(2008). 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. In determining whether an appellant is entitled to service connection for a disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran's DD form 214 reflects that he served in the Air Force with a military occupational specialty of weapons mechanic. Service administrative records document that he had foreign service in Libya between June and July 1964 and at U-Tapao, Thailand between June 1967 and April 1968. He is shown to have received the Vietnam Service and Republic of Vietnam Campaign Medals. Service treatment records contain no reference to diabetes. Upon examination in March 1968 for separation from service, the appellant's urinalysis for sugar was negative. Private clinical records dated in April 2002 show that the Veteran was being followed for type II diabetes and hypertension. On VA Agent Orange registry examination in November 2002, it was recorded that diabetes was first discovered in approximately 1998. The Veteran reported history to the affect that he was deployed to Vietnam between 1966 and 1967, had military service in a combat zone, and was in areas where defoliants were stored. A pertinent assessment of AO[Agent Orange]DM was provided whereupon the examiner noted the Veteran was advised to file a compensation and pension claim. The examiner added that "[i]n my opinion, any medical condition or diagnosis (including all diagnoses and symptoms documented for this patient) could possibly be related to exposure to herbicides during prior service in Viet Nam." In correspondence dated in September 2003, the Veteran stated that he had a one-year tour of duty in Vietnam for which he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. The Veteran presented testimony on personal hearing in June 2006 to the effect that as a weapons team leader in service, he loaded weapons of mass destruction, both nuclear and conventional, in Vietnam. He stated that he left on a commercial contract flight from the continental United States in 1967, and had to stop over at a base in Vietnam for military carrier transport to his assigned station in Thailand. He related that he deplaned in Vietnam and stayed there about six hours in a "holding area" until flying to Thailand. He testified that he thought he stayed in Vietnam overnight when returning from Thailand because of an injury. He said that he ate lunch and dinner there. He stated that when he left Thailand, he went back through Vietnam to get a transport to Clark Air Force Base in the Philippines to the continental United States. The Veteran related that he received hazardous duty pay for flying at least once a month, and that he made multiple other trips to the Vietnam air base to pick up parts for which he received "propay" or hazardous duty pay. He said that he doubted that those trips made TDY (travel duty) papers. In correspondence dated in July 2006, the Veteran's mother wrote that in a letter to her dated in June 1967, he described how he travelled on a civilian airline military contract carrier from Travis Air Force Base, California to Hawaii, and through to Danang Air Force Base, Vietnam. She stated that he was transported the next day by United States Air Force aircraft to his duty station at U-Tapao, Thailand. She said that he told her of his medical evacuation from Tapao via a military airplane to Vietnam where he stayed overnight enroute back to Travis Air Force Base. Subsequently received was a copy of a letter dated January 3, 1968 that the Veteran sent to his parents while he was in the military. He stated that he could not find the letter that he had sent to his mother in June 1967. In the January 1968 letter, the appellant related that he was currently in Bangkok (Thailand) again after travelling a week and a half. He said he had been to the Philippines, Okinawa and "all over Vietnam and Thailand." The Veteran wrote that he had been on government business with two other troops and had been travelling on several types of military aircraft that stopped at almost every base for three hours and had stayed in "Sigon" for a day. He said that when they landed at "N.K.P.", they could see a firefight across the river into Laos. The Veteran related that "[t]raveling across Viet Nam 'South' we could see where B-52 (sic) had hit targets." He said that he had been taking pictures as he went along. Legal Analysis At the outset, the Board finds that there is nothing in the Veteran's service treatment records that indicates that diabetes mellitus was diagnosed during active duty, or was manifested to a compensable degree within one year of his separation from service. Therefore, service connection may not be granted on a direct basis, nor may it be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2008). The Board points out, however, that the Veteran attributes the onset of diabetes to exposure to Agent Orange in Vietnam and requests service connection under the presumption of 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Therefore, a discussion of whether the appellant had the requisite service in Vietnam for purposes of service connection for type II diabetes based on presumed to exposure to Agent Orange or other herbicides is appropriate. The evidence reflects that although the Veteran reported and wrote earlier in the record that he had a one-year tour of duty in Vietnam, the record unequivocally does not corroborate this assertion. He has since presented testimony to the effect that he stopped over in Vietnam to and from his duty station in Thailand, and that he made multiple trips to what is presumed to be Danang Air Force Base during the course of his assignment in Thailand. His mother confirms his testimony of presence in Vietnam enroute to and from Thailand from a letter she said he sent to her in June 1967. However, this letter is unable to be found. In another letter dated in January 1968, the Veteran did indeed state that he had been "all over Vietnam" although it appears that this was mostly flying time. He did, however, write that he had spent a day in what he presumably meant was Saigon, the capital of the Republic of South Vietnam at that time. This contemporaneous evidence is crucial and reasonably establishes a presence in Vietnam. Given the above, the Board finds there is reliable evidence of record which establishes that the Veteran is entitled to the presumption of exposure to Agent Orange due to presence in Vietnam. A showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam which the Veteran has demonstrated in this case. Similarly, his receipt of the Vietnam Campaign Medal and Vietnam Service Medal tends to support presence in Vietnam. Under the circumstances, the Board finds that the evidence is at least in equipoise such that the benefit of the doubt may be resolved in favor of the veteran. A reasonable basis is established to conclude that service connection for type II diabetes mellitus based on the veteran's claimed exposure to Agent Orange in Vietnam is warranted. See 38 C.F.R. § 3.102 (2008). ORDER Service connection for type II for diabetes mellitus based on claimed exposure to Agent Orange in Vietnam is granted ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs