Citation Nr: 1119288 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 04-00 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for diabetes mellitus and associated diabetic complications, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Ms. N. E. Farve, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967 with subsequent service in the Air Force Reserves and Louisiana Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2006, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of this hearing is of record. Although the VLJ who conducted the April 2006 VA hearing is no longer employed by the Board, the decision below grants the full benefits on appeal and the Veteran is not prejudiced by the lack of an opportunity to request another hearing before the Board. In July 2006 and February 2009 the Board remanded the case for further action by the originating agency. The case returned to the Board where it was denied in an August 2010 decision. The Board has raised a motion to vacate the August 2010 decision with respect to the denial of service connection for diabetes mellitus, and the motion to vacate and readjudication of the claim on appeal are discussed below. The Board's August 2010 decision also referred issues of entitlement to service connection for erectile dysfunction, hypertension, and lesions and scars of the skin to the Agency of Original Jurisdiction (AOJ). The record currently before the Board does not indicate whether any action has been taken on these claims, therefore, they are once again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In August 2010, the Board denied the claim for entitlement to service connection for diabetes mellitus and associated diabetic complications. 2. Prior to the issuance of the August 2010 Board decision, VA amended the provisions of its Adjudication Procedure Manual (M21-1 MR) pertaining to the development of claims involving exposure to herbicides in Thailand during the Vietnam era. The Board's August 2010 decision did not take into account the amended portions of the M21-1 MR. 3. The Veteran was exposed to herbicides during active duty service in Thailand. 4. The Veteran has diabetes mellitus that became manifest to a degree of 10 percent or more after service; he has also been diagnosed with peripheral neuropathy and diabetic retinopathy secondary to diabetes. CONCLUSION OF LAW 1. The criteria for vacating the Board's August 2010 decision regarding the denial of the claim for service connection for diabetes mellitus and associated diabetic complications have been met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2010). 2. The incurrence of diabetes mellitus and its associated diabetic complications during service is presumed based on the Veteran's exposure to herbicides in Thailand. 38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION Motion to Vacate On August 3, 2010, the Board issued a decision denying the Veteran's claim for entitlement to service connection for diabetes mellitus with associated diabetic complications, to include as due to herbicide exposure. The Board found that the Veteran had not been exposed to herbicides during his active duty service in Thailand and service connection due to such exposure was therefore not warranted. This decision was based, in part, on specific guidelines provided in M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(n). However, a May 2010 Compensation & Pension (C&P) Services Bulletin indicates that VA amended the portion of the M21-1 MR pertaining to herbicide exposure in Thailand prior to the Board denial of the claim of service connection for diabetes. The Board did not consider the amended provisions in its August 2010 decision denying the Veteran's claim. A Board decision may be vacated at anytime upon the Board's own motion. 38 C.F.R. 20.904 (2010). The Board's August 2010 decision was not based on all the available evidence, and it is therefore vacated. Service Connection Diabetes Mellitus The Veteran contends that he incurred diabetes mellitus with diabetic complications of peripheral neuropathy and retinopathy as a result of herbicide exposure during active duty service. At his April 2006 videoconference hearing and in multiple letters to VA, the Veteran stated that he served as an air policeman with the 818th Combat Defense Squadron on temporary duty assignment in Thailand. While in Thailand, he was exposed to herbicides as he personally sprayed the defoliant and was in close proximity to aircraft that sprayed Agent Orange in Vietnam as part of Operation RANCH HAND. 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, 1131; 38 C.F.R. § 3.303(a). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and manifests type II diabetes to a degree of 10 percent or more at any time after service, the veteran is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. § 3.307. 3.309(e). The record documents that the Veteran has diabetes mellitus that manifested to a degree of 10 percent or more since service. He was diagnosed with diabetes mellitus in February 1996 by his private physician and peripheral neuropathy secondary to diabetes and diabetic retinopathy were diagnosed at the VA Medical Center (VAMC) and upon VA examination in October 2009. The October 2009 VA examination also indicates that the Veteran's diabetes is treated with insulin, an oral hypoglycemic agent, a restricted diet, and that he visits his diabetic caregiver approximately twice a month. Such manifestations of diabetes are associated with a disability rating of at least 10 percent under 38 C.F.R. § 4.119, Diagnostic Code 7913. Thus, the central inquiry in this case is whether the Veteran was exposed to herbicides during active duty service. The evidence does not establish that the Veteran served in the Republic of Vietnam between January 1962 and May 1975, and his exposure to herbicides is therefore not presumed. See 38 U.S.C.A. § 1116(f) (West 2002). However, the record does demonstrate that the Veteran was exposed to herbicides while serving in Thailand. Service personnel records show that the Veteran served on several air force bases in Thailand, including Ubon and Takhli, with a military occupational specialty (MOS) of air policeman. In accordance with the current version of the M21-1 MR, if a veteran served at the Ubon or Takhli air bases as an Air Force security policeman (or similar position that brought him or her into contact with the air base perimeter), VA will concede exposure to herbicides. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). The Veteran's service in Thailand and his MOS have been confirmed by service records, and the Board finds that he was exposed to herbicides during active duty service. Service connection is therefore warranted for the Veteran's diabetes mellitus and associated complications, as these disabilities are presumed to have been incurred during active duty service based on the Veteran's exposure to herbicides during service in Thailand. Given the favorable nature of the Board's decision, the Board concludes that any failure of the RO to comply with the duties to notify and assist the claimant as required by the Veterans Claims Assistance Act of 2000 (VCAA), see 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a), is not prejudicial to the Veteran. ORDER The August 3, 2010 Board decision denying the claim for entitlement to service connection for diabetes mellitus and associated diabetic complications, to include as due to herbicide exposure, is vacated. Entitlement to service connection for diabetes mellitus and associated diabetic complications is granted. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs