Citation Nr: 1112207 Decision Date: 03/28/11 Archive Date: 04/06/11 DOCKET NO. 10-16 092 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for type II diabetes mellitus; and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to January 1956 and from June 1957 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the Veteran's case was subsequently transferred to the Albuquerque, New Mexico RO. In January 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a July 2005 rating decision, the Veteran's claim of entitlement to service connection for type II diabetes mellitus was denied finding that the Veteran was not diagnosed with diabetes mellitus while on active duty or within one year of separation from service, that the evidence did not associate the Veteran's diabetes mellitus with the Veteran's active service, and that the evidence did not reveal that the Veteran served in the Republic of Vietnam. The Veteran did not perfect an appeal. 2. The evidence associated with the claims file since the July 2005 RO rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for type II diabetes mellitus. 3. The currently demonstrated type II diabetes mellitus is shown as likely as not to be due to injury or disease incurred during the Veteran's period of active service. CONCLUSIONS OF LAW 1. The July 2005 RO rating decision that denied entitlement to service connection for type II diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. The additional evidence presented since the July 2005 RO rating decision is new and material, and the claim of entitlement to service connection for type II diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. By extending the benefit of the doubt to the Veteran, his type II diabetes mellitus is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Application to Reopen In a July 2005 RO rating decision, the Veteran was denied service connection for diabetes mellitus on the basis that there was no evidence associating the Veteran's diabetes with the Veteran's active service, there was no evidence that the Veteran developed diabetes mellitus within one year after separation from service, and there was no evidence that the Veteran served in the Republic of Vietnam or was exposed to herbicides during the Veteran's period of active service. At the time of the July 2005 RO rating decision the pertinent evidence of record included the Veteran's service treatment records, records of VA outpatient treatment dated through April 2005, and a VA Compensation and Pension exam report, dated in April 1980. The July 2005 RO decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a), 20.1103 (2010). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Where the claim is filed on or after August 29, 2001, under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed his application to reopen a claim of entitlement to service connection for type II diabetes mellitus in January 2008. The pertinent evidence received subsequent to the July 2005 RO rating decision includes a portion of the CHECO Report regarding the airbase where the Veteran was stationed in Thailand, a printout from the VA website indicating that the perimeter of airbases in Thailand have been determined to have been treated with herbicides that may have been tactical in nature, and the Veteran's testimony at a hearing before the undersigned Veterans Law Judge. The Veteran's testimony at the hearing and the CHECO Report indicate that the airbase on which the Veteran worked while stationed in Thailand was treated with herbicides and was defoliated. The Veteran testified that his duties required him to be near the perimeter of the airbase. Therefore, the Board finds that the evidence submitted since July 2005 is new in that it was not associated with the claims folder prior to the July 2005 RO rating decision and material because it indicates that the Veteran was exposed to herbicides in service. Therefore, for the foregoing reasons, the Board finds that new and material evidence to reopen the claim of entitlement to service connection for diabetes mellitus has been received, and that the appeal is reopened. III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (BVA has a duty to assess). Here, the Board finds that by extending the Veteran the benefit of the doubt, service connection is warranted. The evidence of record establishes that the Veteran was diagnosed with diabetes mellitus in September 2004. He contends that the diabetes mellitus was caused by exposure to herbicides during service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases will be established even though there is no record of such disease during service, provided that the disease is manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2010). Type II diabetes mellitus is a disease for which presumptive service connection is warranted on the basis of herbicide exposure. See 38 C.F.R. § 3.309(e) (2010). The central issue in this case is whether the Veteran was exposed to Agent Orange during his service. A Veteran who, during active service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2010); 38 C.F.R. § 3.307 (2010). Here, the Veteran does not contend (and the record does not suggest) that he had service in Vietnam. In fact, at his Board hearing, he specifically testified that he did not set foot in Vietnam. As such, a presumption of herbicide exposure is not warranted. See 38 C.F.R. §§ 3.307(a)(6)(iii) (2010). Rather, he contends that he was exposed to herbicides during service at Ubon Royal Thai Air Force Base (RTAFB), in Thailand. The record confirms that he served in the United States Air Force at Ubon RTAFB from July 1970 to July 1971. The historical evidence of record is far from clear in establishing that the Veteran was, in fact, actually exposed to Agent Orange during his service. Nonetheless, the Board finds that the evidence is at least in a state of relative equipoise in showing that it is as likely as not that he was exposed to an herbicide at Ubon. He testified during a January 2011 Board hearing that he was Muntions Maintenance Squadron (MMS) commander at Ubon. He indicated that the air base at Ubon was on the Moon River and that it was a major base for F-4 flights. In addition, he stated that there were B-57 and C-130 gunships stationed at the base. He reported that his military occupational specialty was the loading of bombs, rockets, missiles, and flares on these aircraft. The Veteran stated that the main office area was on the very perimeter of the base and that the bomb storage area was three to six miles outside of Ubon. He indicated that there was not a lot of vegetation outside of Ubon because the area had been sprayed with Agent Orange. The Veteran stated that the area along the perimeter was sprayed with Agent Orange but that the area where the bombs was stored was cleared by the local people because of a reluctance to spray where the local inhabitants lived. In addition, the Veteran reported that he was instructed to have his men clean up an area where Agent Orange was stored, mixed, and delivered to C-123 aircraft. The Board finds that the Veteran's assertions are competent and credible evidence establishing that he visited the perimeter of Ubon. The Veteran submitted a portion of the CHECO Report that indicated that the MMS area was six miles off-base and that it was cleared of off-base vegetation by hiring local villagers. The report indicated that the Rules of Engagement (ROE) prohibited the use of herbicides outside of the perimeter but that Base Civic Action undertook the project of having vegetation cleared 100 meters from the MMS area fence. The Veteran submitted a printout from the VA Office of Public Health and Environmental Hazards website indicating that Veterans who served in the U.S. Air Force near the perimeter of the RTAF base at Ubon anytime between February 1961 and May 1975 may have been exposed to herbicides. In addition, the VA website indicated that "DOD determined that herbicides used on the Thailand base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides." The Veteran submitted statements of Veterans that indicate that base had little to no vegetation growing on it. The Board notes that the CHECO Report indicates that herbicides were employed to assist in the task of vegetation control to aid in observation at the perimeters of the Thailand air bases. However, the use of these agents was limited by the ROE and supply problems. See Project CHECO Southeast Asia Report: Base Defense in Thailand, available at http://www.afhra.af.mil/shared/media/document/AFD-080819-065.pdf. In a memorandum from the JSRRC Coordinator dated in June 2010, it was noted that the Veteran's exposure to Agent Orange in Thailand is not plausible. The opinion, based upon the CHECO Report, indicated that although the report indicated that herbicides were used on air base perimeters in Thailand, these herbicides were commercial in nature as Base Civil Engineers were not permitted to purchase or apply tactical herbicides and that Agent Orange was tactical herbicide. The Board reiterates that the record in this case does not establish that any herbicide used at Ubon was an "herbicide agent" as defined in 38 C.F.R. § 3.307(a)(6)(i) (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloraman). Nonetheless, the Board finds the Veteran's reports of the use of herbicides, the CHECO Report detailing the use of herbicides, the evidence that the herbicides used on air base perimeters may have been tactical, and the Veteran's current diabetes mellitus, type II, to be indicative of a history of herbicide exposure. In addition, as the VA website printout indicates that the herbicides used along the perimeters of airbases in Thailand may have been tactical in nature, the CHECO Report does not indicate the type of herbicides used along the perimeter of airbases in Thailand, and the JSRRC Coordinator has indicated that the herbicides used along the Thai airbase perimeters were not tactical in nature, the Board finds that the evidence is in equipoise regarding whether the herbicides that the Veteran was exposed to were tactical in nature. In short, based on the distinct factual circumstances in this case the Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran was as likely as not exposed to an herbicide agent while stationed on the perimeter of the RTAF base in Ubon. As diabetes mellitus, type II, is a disorder for which presumptive service connection is warranted on the basis of herbicide exposure, the Veteran's claim is granted. 38 C.F.R. §§ 3.307, 3.309 (2010). ORDER New and material evidence having been received, the claim of service connection for diabetes mellitus is reopened, and to this extent the appeal is granted. Service connection for diabetes mellitus is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs