Citation Nr: 1014992	
Decision Date: 04/20/10    Archive Date: 04/30/10

DOCKET NO.  09-17 474	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUE

Entitlement to service connection for diabetes mellitus, type 
2, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel

INTRODUCTION

The Veteran served in the reserve and on active duty for 
training (ACDUTRA) from November 1952 to August 1956.  The 
Veteran also served on active duty from August 1956 to July 
1958 and from January 1961 to January 1966.  This matter 
comes properly before the Board of Veterans' Appeals (Board) 
on appeal from a March 2008 rating decision by the Department 
of Veterans Affairs (VA) Regional Office in No. Little Rock, 
Arkansas (RO).

The Veteran testified at a hearing before the undersigned at 
the RO in March 2010.  A transcript of the hearing is 
associated with the claims file.

The Board received additional evidence from the Veteran 
during the hearing consisting of medical evidence and lay 
statements from the Veteran and a fellow service member.  The 
new evidence was accompanied by a waiver of the Veteran's 
right to initial consideration of the new evidence by the RO. 
38 C.F.R. §§ 19.9, 20.1304(c) (2009).  Accordingly, the Board 
will consider the new evidence in the first instance in 
conjunction with the issue on appeal.

This appeal has been advanced on the Board's docket pursuant 
to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. § 7107(a)(2) 
(West 2002).


FINDINGS OF FACT

1.  The medical evidence of record shows that the Veteran has 
a current diagnosis of diabetes mellitus, type 2.

2.  The competent evidence of record shows that the Veteran 
was exposed to Agent Orange during active military service.




CONCLUSION OF LAW

Diabetes mellitus, type 2, is presumed to have been incurred 
in active military service.  38 U.S.C.A. §§ 1110, 1116, 1131, 
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 
3.307, 3.309 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 
2000, VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  In 
this case, the Board is granting in full the benefit sought 
on appeal.  Accordingly, without deciding that any error was 
committed with respect to the duty to notify or the duty to 
assist, such error was harmless and need not be further 
considered.

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. §§ 1110, 1131; 38 
C.F.R. § 3.303(a).  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).

Additionally, a Veteran who, during active military, naval, 
or air service, served 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 the Veteran was not 
exposed to any such agent during that service.  38 U.S.C.A. § 
1116(f); 38 C.F.R. § 3.307.  The following diseases are 
deemed associated with herbicide agent exposure, under VA 
law: chloracne or other acneform diseases consistent with 
chloracne, Hodgkin's disease, 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), soft-tissue 
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's 
sarcoma, or mesothelioma and diabetes mellitus (Type 2).  38 
U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309.

The Veteran's service treatment records are negative for any 
diagnoses of diabetes mellitus, type 2.

After separation from military service, a July 2005 private 
treatment records gave an impression of diabetes mellitus, 
type 2, and the medical evidence of record shows that 
diabetes mellitus, type 2, has been consistently diagnosed 
since that time.

A February 2010 letter from Dr. R.J. stated that "after 
reviewing [the Veteran]'s medical records, it is my opinion 
that exposure to Agent Orange is likely as not to have caused 
his diabetes."

The medical evidence of record shows that the Veteran has a 
current diagnosis of diabetes mellitus, type 2.  Accordingly, 
if the Veteran is found to have been exposed to an herbicide 
agent during military service, to include Agent Orange, 
presumptive service connection is warranted for the Veteran's 
diabetes mellitus, type 2.  See 38 C.F.R. § 3.307.

The Veteran's DD Form 214 shows that he served in the Air 
Force from January 1961 to January 1966 and lists his 
inservice specialty as Radio Repairman.  His service 
personnel records show that by a January 1965 temporary duty 
order he was assigned to the 1st Mobile Communications Group 
stationed at the Clark Air Force Base in the Philippines, for 
the purpose of maintaining communications facilities during 
the period from December 1964 through December 1965.  The 
Veteran contends that while stationed at the Clark Air Force 
Base (Air Force Base), he made multiple trips to Korat, 
Thailand, on temporary duty orders, to maintain and operate 
the MRC-98 radio equipment, and during one of these trips to 
Korat, he stopped in Vietnam to unload equipment.


The RO made a request to the National Personnel Records 
Center (NPRC) to verify the dates of the Veteran's service in 
Vietnam during his Air Force service; however, a July 2007 
response from the NPRC stated that there is no evidence in 
the Veteran's file to substantiate any service in the 
Republic of Vietnam.

In May 2007 and March 2010, statements in support of the 
Veteran's claim were submitted by a fellow service member, 
K.W., who served in the same unit with the Veteran during his 
service in the Philippines.  K.W. stated that the Veteran and 
himself were given temporary duty orders to make trips to 
Korat, Thailand, on Team 49-64 to maintain and operate the 
MRC-98 Tropo Scatter Radio Equipment.  On one of their trips 
to Thailand, they made a stop to unload equipment in Vietnam.  
He stated they landed on a pierced steel plate runway and 
were required to leave the aircraft to unload the equipment.  
At a March 2010 hearing before the Board, the Veteran 
testified that the trip was around June 1965 and he stayed on 
the ground in Vietnam for about 45 minutes until the 
unloading of all the equipment was accomplished.

The Veteran's service personnel records include an Air Force 
Outstanding Unit Award to the 1st Mobile Communications Group 
issued by the Department of the Air Force regarding the 
installation and operation of the AN/MRC-98 system.  The 
citation of the award stated that 

The 1st Mobile Communication Group, Air Force 
Communications Service, distinguished itself 
by exceptionally meritorious achievement in 
support of military operations in Southeast 
Asia, from 1 January 1965 to 31 December 1965.  
During this period, by overcoming extreme 
difficulties associated with living and 
working under field condition, while subject 
to combat actions by hostile forces, the 
personnel of the 1st Mobile Communications 
Group successfully established communications 
and navigational aids facilities in Southeast 
Asia.  These facilities and the 1st Mobile 
Communications Group personnel assigned to 
them played a vital role in the defense 
against Communist aggression and infiltration 
in the Republic of Vietnam....

In August 2008, the Veteran submitted photographs that he 
claims were taken while he was in Korat, Thailand.  The 
photographs show the Veteran as a young man posing against 
the background of a park in downtown, Korat, a temporary 
hooch at the Army camp in Korat where the Veteran notes he 
stayed while the Air Force hooches were being built, the 
Veteran putting up mosquito nets in a hooch and his bunk in 
the hooch.  One photograph shows a man sitting on a chair in 
a room filled with heavy equipment and a hand-written 
notation has been made indicating that the man in the 
photograph is K.W. in the MRC van in Korat, Thailand.

The Veteran's service personnel records confirm that K.W. 
actually served with the Veteran in the same communications 
group on temporary duty orders to Korat, Thailand for the 
claimed time period, and the statements of both the Veteran 
and his friend are not inconsistent with the record.

In summary, the lay testimony that the Veteran was present in 
Vietnam in June 1965 during a temporary duty order to Korat 
is consistent with the evidence of record.  While the NPRC 
finding does not clearly identify the specific location at 
which the Veteran made a stop during his trip to Korat, the 
Board highlights that there is no basis in the record to 
question the Veteran's credibility regarding his statements.  
The Veteran's statements as to his presence in Vietnam during 
his temporary duty order to Korat, Thailand, and the type of 
duties performed are competent lay evidence of what the 
Veteran actually observed and is within the realm of his 
personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 
469-470 (1994).  It is the defined and consistently applied 
policy of VA to administer the law under a broad 
interpretation, consistent, however, with the facts shown in 
every case.  Indeed, in consideration of the aforementioned 
evidence along with the credible testimony he provided before 
the undersigned, the Board finds that there is sufficient 
evidence to support the Veteran's claim of having visited 
Vietnam as part of his duties while serving between Clark AFB 
and Korat, Thailand.  See Dalton v. Nicholson, 21 Vet. App. 
23, 38 (2007) (a a finder of fact, the Board, when 
considering whether lay evidence is satisfactory, the Board 
may also properly consider facial plausibility, consistency 
with other evidence submitted on behalf of the veteran, and 
the veteran's demeanor when testifying at a hearing).  Any 
reasonable doubt regarding the accuracy of the Veteran's 
statements is resolved in favor of the Veteran.  See 38 
C.F.R. § 5107(b).

Accordingly, applying the doctrine of reasonable doubt, 
presumptive service connection is warranted for diabetes 
mellitus, type 2.  Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

Service connection for diabetes mellitus, type 2, to include 
as due to herbicide exposure is granted.



____________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs