Citation Nr: 1111215 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 05-41 279 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. On April 3, 2007, the Veteran appeared and testified at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing is of record. The Board notes that the instant matter was previously before the Board in February 2009 and October 2009, at which time the Board remanded the issue of service connection for diabetes mellitus for further evidentiary development. After completing the required evidentiary development, the Appeals Management Center (AMC) re-adjudicated the matter and denied the Veteran's service connection claim in a December 2010 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. The Veteran has a current diagnosis of type II diabetes mellitus. 2. The Veteran had foreign service in Thailand from April 1968 to April 1969. CONCLUSION OF LAW Type II diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010); VA Adjudication Procedures Manual, part IV, subpt. ii, ch. 2, sec. C.10.q. REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides that 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 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). In addition, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). The law further provides that there are certain diseases, such as type II diabetes mellitus, that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.309(e). (In this context, the term "herbicide agent" is defined as 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, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i).). According to the VA Adjudication Procedures Manual and a Compensation and Pension (C&P) Service Bulletin from May 2010, VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. Thus, VA has determined that exposure to herbicides will be conceded for veterans whose duties placed them at or near the perimeters of Thailand military bases during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual (M21-1MR) part IV, subpt. ii, ch. 2, sec. C.10.q; Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). VA based this determination of evidence contained in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Here, the record shows that the Veteran has a current diagnosis of type II diabetes mellitus. The Veteran has proffered several theories of service connection, one of which is that his currently diagnosed diabetes mellitus is due to his exposure to herbicides in service. He does not contend, and the evidence does not show, that diabetes mellitus had its onset in service. Indeed, the Veteran's service treatment records (STRs) are silent for complaints or treatment related to diabetes mellitus. His pre-induction examination report records that his endocrine system was clinically evaluated as normal. Results of urinalyses conducted in July 1966 and March 1970 were also negative for sugar. The March 1970 urinalysis contained a specific gravity measurement within normal limits. The Veteran's post-service medical records do not show a specific date upon which the Veteran was first diagnosed as having diabetes. The Veteran stated during his August 2007 hearing that he was diagnosed in or around 1982. An August 1997 VA outpatient treatment record noted that the Veteran had had been recently diagnosed as having type II diabetes mellitus. Thus, the weight of the probative evidence establishes that diabetes mellitus was not manifested in service or to a compensable degree within one year of the Veteran's separation from military service in April 1970. A review of the Veteran's service personnel records shows that he had overseas service in Thailand from April 1968 to April 1969, during which time he was stationed at U-Tapao Thai Navy Airfield. The Veteran's Air Force Specialty Code was listed as security policeman. Specifically, M21-1MR provides that if a veteran served with the U.S. Air Force at a specified Royal Thai Air Force Base, of which U-Tapao is one, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure if to be conceded on a direct/fact-founds basis. See M21-1MR, part IV, subpt. ii, ch. 2, sec. C.10.q Accordingly, in light of the M21-1MR provision and the VA C&P Service Bulletin discussed above and the Veteran's service personnel records that place him at U-Tapao Royal Thai Navy Airfield as a security policeman from April 1968 to April 1969, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was likely exposed to herbicides while serving in Thailand. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990) M21-1MR, part IV, subpt. ii, ch. 2, sec. C.10.q; VBA C&P Service Bulletin (May 2010). Therefore, the Board concludes that his type II diabetes mellitus is presumed to have been incurred in service. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e); M21-1MR, part IV, subpt. ii, ch. 2, sec. C.10.q; VBA C&P Service Bulletin (May 2010). As such, the Veteran's claim of entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is granted. The Board notes that the Veteran has also asserted that he set foot in Vietnam upon leaving Thailand when his plane stopped at Tan Son Nhut Air Base, Vietnam. Given the Board's finding that the Veteran's service in Thailand allows for presumptive service connection under the facts of his case, the Board need not determine whether the Veteran had qualifying service in Vietnam for the purposes of 38 C.F.R. §§ 3.307(a)(6) and 3.309. ORDER Service connection for type II diabetes mellitus is granted ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs