Citation Nr: 1109476 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 09-35 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for diabetes mellitus, type II to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from June 1971 to June 1976. The Veteran also had a subsequent period of service in the Oklahoma Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A hearing was held on September 3, 2010, by means of video conferencing equipment with the appellant in Muskogee, Oklahoma, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. At the time of his hearing, the Veteran withdrew his claim of entitlement to service connection for depression. Thus, the claim is no longer before the Board for appellate consideration. FINDINGS OF FACT 1. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's conditions of service involved duty or visitation in the Republic of Vietnam during the Vietnam War. 2. The Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW Diabetes mellitus type II is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As the Board has granted service connection for diabetes mellitus type II, the decision is favorable to the Veteran and therefore there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Section 3.307(a)(6)(iii) also provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. 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). According to the VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, ch. 2, section C, 10,b. (hereinafter "M21-1MR"), service in the Republic of Vietnam means service in the RVN or its inland waterways, or service in other locations if the conditions of service involved duty or visitation in the RVN. Service in the Republic of Vietnam under 38 C.F.R. § 3.307(a)(6)(iii) requires the service member's presence at some point on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), see also VAOPGCPREC 7-93 (holding that 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); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases 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: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, 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) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The Federal Circuit has held that VA regulations require that a Veteran have set foot within the land borders of Vietnam for presumptive service connection and that a Veteran who never went ashore from the ship on which he served in the Vietnam coastal waters was not entitled to presumptive service connection. The Federal Circuit has further held that VA's amendment to its Adjudication Procedure Manual excluding Veterans who had not set foot in Vietnam was not invalid or impermissibly retroactively applied. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for diabetes mellitus, type II. The medical evidence of record shows that the Veteran has a current diagnosis of diabetes mellitus type II. See VA treatment records. Moreover, in a July 2007 letter, the Veteran's private physician, Dr. R.P. confirmed the Veteran's diagnosis of diabetes mellitus type II. In this case, the Veteran has contended that he is entitled to the presumption of service connection for diabetes mellitus type II because he was in Vietnam. In his statements and hearing testimony, the Veteran explained that he was a pilot during his period of active service from June 1971 to June 1976. He stated that he had a mission in August/September of 1973 which involved a two-stop (2 onload/offloads of cargo) in Vietnam at the Bien Hoa Air Base and the Tan Son Nhut Air Base. He stated that the mission was for 7.1 hours and that he used the maximum time at the Bien Hoa Air Base to go into the village and purchase decorative elephants. He stated that his team then went to the Tan Son Nhut Air Base in Saigon, which was his leg of the mission to fly. Then, they returned to Clark Air Force Base, located in the Philippines. As noted above, VA laws and regulations require a Veteran's service in the waters offshore and service in other locations to involve duty or visitation actually in the Republic of Vietnam for the purposes of establishing presumptive service connection for Type II diabetes mellitus as due to exposure to Agent Orange. 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In reviewing the evidence of record, the Board recognizes that there is no definitive record showing that the Veteran stepped foot in Vietnam. The DD Form 214 shows that the Veteran was awarded the Vietnam Service Medal (VSM). However, the VSM was awarded to service members who served 'in Vietnam and the contiguous waters or airspace thereover' or 'in Thailand, Laos, or Cambodia or the airspace, thereover, and in direct support of operations in Vietnam,' and thus is not of itself necessarily indicative of Vietnam service. See Manual of Military Decorations and Awards, 6.6 (U.S. Department of Defense Manual 1348.33-M, September 1996) (emphasis added). Nonetheless, the Veteran's DD Form 214 does show that the Veteran's military occupational specialty (MOS) was pilot transport and air operations officer. The DD 214 shows that the Veteran had 1 day of Indochina or Korea service and that he had a total of 4 months and 11 days of foreign service. During the Veteran's period of foreign service, the personnel records show that the Veteran was on temporary duty (TDY) multiple times in 1973, during the Vietnam War. In addition, the Veteran submitted a flight record which shows that the Veteran logged 1348 hours of flying time as of 1976 and had 7.1 hours of combat time. As noted above, the Veteran stated that this combat time was due to his stop in Vietnam. A personnel record also shows that the Veteran was on TDY from August 30, 1973 to September 12, 1973, when the Veteran claims that he was in Vietnam. However, there is no record to show where the Veteran was during the period of TDY. The Veteran's fellow service member, T.L.W., submitted a lay statement and explained that he knew the Veteran from December 1972 until the present. During this period of time, T.L.W. stated that they flew together in the U.S. Air Force while stationed together at the McGuire Air Force Base from 1972 until 1975. He stated that they also flew together in the Oklahoma Air National Guard from 1976 through 1999. T.L.W. stated that during their flying careers at McGuire Air Force Base in New Jersey, they both flew C141 combat missions into Vietnam during the Vietnam War. Specifically, he could remember the Veteran flying into Bien Hoa Air Base, Vietnam. In reviewing the limited evidence of record, the Board acknowledges that there is no official record that the Veteran was in Vietnam. Although no one piece of evidence is dispositive in this case, the Veteran's contentions of landing in Vietnam and disembarking are not inconsistent with the information contained in his personnel records. In fact, the Board finds that the Veteran's credibility is bolstered by the accompanying evidence of record. As explained above, the evidence shows that the Veteran was a pilot and on TDY several times during his period of foreign service in 1973, which occurred during the Vietnam War. The Veteran was also awarded the VSM, which further shows that the Veteran had overseas service during the correct time period. It is also reasonable to believe that the Veteran was listed as having 7.1 hours of combat time due to a stopover in Vietnam. Finally, the Veteran's MOS of pilot transport lends further support to the Veteran's statements regarding location and stopovers in Vietnam. In light of the Veteran's statements and the objective evidence of record, the Board finds that the evidence is in equipoise as to whether the Veteran set foot in Vietnam. When a reasonable doubt arises, such doubt will be resolved in the favor of the claimant. 38 C.F.R. § 3.102. Thus, the Board finds, after resolving all doubt in favor of the Veteran, that the Veteran's service did involve visitation or duty in Vietnam for VA purposes under 38 C.F.R. §§ 3.307 and 3.309. He was therefore 'exposed' to an herbicide agent within the meaning of VA law. As noted previously, the medical evidence shows that the Veteran has been diagnosed with diabetes mellitus type II, a disease subject to the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309. Therefore, service connection for diabetes mellitus type II is granted. ORDER Entitlement to service connection for diabetes mellitus type II is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs