Citation Nr: 0929575 Decision Date: 08/07/09 Archive Date: 08/14/09 DOCKET NO. 08-07 673 ) 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, including as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Timothy S. Hoseth, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2007, a statement of the case was issued in January 2008, and a substantive appeal was received in February 2008. In April 2009, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. With all reasonable doubt resolved in favor of the Veteran, the Veteran stepped foot in Vietnam during active service during the Vietnam era. 2. The Veteran has type II diabetes mellitus that is present to a compensable degree. CONCLUSION OF LAW With all reasonable doubt resolved in favor of the Veteran, the criteria for service connection for type II diabetes mellitus based on presumed Agent Orange exposure are met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Laws and Regulations The Veteran is seeking entitlement to service connection for type II diabetes mellitus, which he contends is a result of exposure to Agent Orange. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C.A. § 1116; See also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, type II diabetes mellitus (among other disorders) 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Factual Background & Analysis The Board finds that there is nothing in the Veteran's service treatment records that indicates that type II diabetes mellitus was diagnosed during active duty, or was manifested to a compensable degree within one year of his separation from service. 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) and 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 mellitus based on presumed to exposure to Agent Orange or other herbicides is appropriate. At the outset, the Board notes that post-service private medical records show that the Veteran has been diagnosed with type II diabetes mellitus. A November 2006 treatment report shows that the Veteran's diabetes mellitus was not controlled, required oral medication, and required that he either be on a restricted diet or may be required to take insulin. The Board finds that the Veteran's diabetes mellitus has therefore become manifest to a compensable degree. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2008). In this case, the Veteran contends that in January 1968 he was on an airplane that had a layover in Vietnam, and that he exited the plane and went inside the airport terminal. There is no document in the claims file that definitively indicates whether the Veteran set foot in Vietnam. In response to a request to furnish the dates of the Veteran's service in Vietnam, the National Personnel Records Center (NPRC) wrote, "We are unable to determine whether or not this Veteran had in-country service in the Republic of Vietnam." The Veteran's service personnel records do not state that the Veteran had service in the Republic of Vietnam. The Board notes that the Veteran was not awarded the Republic of Vietnam Campaign Medal or the Vietnam Service Medal, and his service personnel records do not otherwise mention Vietnam or refer to his presence there. However, the Veteran submitted a military record which supports his underlying contention that as part of his official duties he boarded a plane which had a layover in Vietnam. A Special Order from the Department of the Army, Headquarters 40th Military Police Battalion, dated December 26, 1967, states that the Veteran was scheduled to depart from Don Muang Airport on January 2, 1968. Thus, although his contention with respect to being present in Vietnam is not clearly established by any official record, the official records are entirely consistent with his contentions and do not contradict them. In support of his claim, the Veteran testified during an April 2009 hearing. The Veteran testified that he had foreign service in Thailand. He said that he flew from Korat, Thailand to Bangkok, Thailand to Oakland, California, with a layover in Saigon, Vietnam. He also testified that during the layover, the plane was offloaded in order to pick up additional troops, and that he went inside the terminal. His military personnel records confirm that he had temporary duty in Thailand during this time period. The Veteran also submitted various documents, including documents printed off of the Internet regarding military flights in the Thailand and Vietnam area during the Vietnam War, as supporting evidence to substantiate his claim that his flight had a layover in Vietnam. The evidence that the Veteran visited the Republic of Vietnam consists of various documents submitted regarding military flights, his statements, and his testimony. The Veteran contends that a plane he was on had a layover in Saigon, Vietnam in route to Oakland, California, and that he exited the plane. The Veteran is competent to provide these statements. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). After observing the Veteran at the Board hearing, the Board finds no reason to doubt his credibility. The Board also believes it reasonable to assume that the Veteran might well have exited the plane during a layover as he has testified. While there is no official service department record of the layover and deplaning, there is no statutory or regulatory requirement for such corroboration. In essence, the Board's decision on this issue turns on its determination as to the credibility of the Veteran's account of his service. The Board finds that the Veteran's statements with respect to his layover in Vietnam are credible, and his statements regarding his flight are not contradicted by any official document or account. Resolving all reasonable doubt in his favor, the Board finds that he had visitation in the Republic of Vietnam during the Vietnam era; therefore, he is presumed to have been exposed to herbicides, as provided under 38 C.F.R. § 3.307. Consequently, the benefit-of-the-doubt rule applies, and service connection for type II diabetes mellitus is warranted on a presumptive basis. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Claims Assistance Act of 2000 In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, and 3.326(a). The Board also notes that two RO letters, dated in February 2007 and March 2009, informed the Veteran of the manner in which disability ratings and effective dates are assigned. Should the Veteran disagree with the RO's actions in this regard in effecting the grants of service connection, he may always initiate an appeal with a timely notice of disagreement. ORDER Entitlement to service connection for type II diabetes mellitus is warranted on a presumptive basis. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs