Citation Nr: 0432676 Decision Date: 12/09/04 Archive Date: 12/15/04 DOCKET NO. 03-02 861 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for Type II diabetes mellitus, claimed as secondary to herbicide exposure. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The veteran served on active duty from May 1956 to May 1976. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2002 decision by the RO in Winston- Salem, North Carolina which denied service connection for Type II diabetes mellitus, claimed as secondary to herbicide exposure. In January 2004, the Board remanded the case to the RO for a Travel Board hearing. The case was subsequently returned to the Board. The Board notes that a Board hearing was scheduled in May 2004. By a letter dated in May 2004, the veteran requested that his hearing be rescheduled. Although this has not yet been done, in light of the instant decision which grants the benefit sought on appeal, the Board finds that the veteran has not been prejudiced by the failure to reschedule his hearing. The Board also notes that in a November 2001 rating decision, the RO granted service connection for bilateral hearing loss, rated 10 percent disabling. The veteran submitted a notice of disagreement with respect to the disability rating in November 2002. A statement of the case was issued in June 2003. A timely substantive appeal was not received from the veteran, and thus this issue is not in appellate status and will not be addressed by the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302 (2003). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran had "service in Vietnam", as his plane stopped in Vietnam while en route from California to the Philippine Islands in March 1966. 3. The veteran currently has Type II diabetes mellitus. CONCLUSION OF LAW Type II diabetes mellitus was incurred in service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is satisfied that all relevant facts regarding the matters decided below have been properly developed and no further assistance to the veteran is required in order to comply with the duty to notify and assist. See 38 U.S.C.A. § 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2003). In any event, based on the favorable decision discussed below, any failure in VA's duty to notify and assist the veteran regarding his claim for service connection for Type II diabetes mellitus would be harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background The veteran served on active duty in the Air Force from May 1956 to May 1976. Records reflect that the veteran was awarded the Vietnam Service Medal based on service in Thailand from March 1966 to February 1967. During this period, his primary military occupational specialty was that of an aircraft technician. Service medical records are negative for diabetes mellitus. Post-service medical records reflect treatment for a variety of conditions. The first medical evidence reflecting a diagnosis of diabetes mellitus is dated in 1998. Private medical records dated in June 1998 from M. G., MD, reflect that the veteran complained of polydipsia and polyuria, and that subsequent blood tests showed high levels of glucose. Private medical records dated from July 1998 to July 2001 reflect treatment for Type II diabetes. A September 2000 history and physical completed by F.C.W., MD reflects that the veteran gave a history of diabetes mellitus for the past two years. In a December 2001 statement, Dr. P. indicated that the veteran had visual and cardiovascular symptoms from diabetes mellitus. In March 2001, the veteran submitted a Veteran's Application for Compensation and/or Pension. In this form, he stated that he did not serve in Vietnam. In December 2001, the veteran submitted a claim for service connection for Type II diabetes mellitus. By a letter dated in March 2002, he asserted that he first had visual symptoms in 1968 or 1969. By a letter dated in September 2002, he stated that he did not go to Vietnam in service. He contended that he was exposed to Agent Orange during service when he worked on planes that returned from Vietnam. He reiterated his contention in a December 2002 statement. In March 2003, the veteran submitted original travel documents and vouchers reflecting that he traveled from California to Thailand during service in early March 1966, via Clark Air Force Base (AFB), in the Philippine Islands. Such documents do not reflect that he was in Vietnam. The veteran stated that on that trip in March 1966, his plane landed in Vietnam prior to arriving in Thailand. He said that when he filed his travel voucher for that trip, he was told not to indicate that he landed in Vietnam. He believed because of problems regarding combat pay. He said that the doors of his plane were open while it was in Vietnam. In January 2004, the Board remanded the case to the RO for a Board hearing. A Board hearing was subsequently scheduled in May 2004. By a letter dated in May 2004, the veteran requested that his hearing be rescheduled. Analysis Service incurrence will be presumed for certain chronic diseases, including diabetes mellitus, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service. In the case of such a veteran, service connection based on herbicide exposure will be presumed for certain specified diseases, including Type II diabetes that become manifest to a compensable degree within a year after last Vietnam service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2003). Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2003). Service connection based on herbicide exposure may also be established with proof of actual direct causation, although such carries a very difficult burden of proof. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service medical records are negative for diabetes mellitus, and the first post-service medical evidence of a diagnosis of diabetes mellitus is dated in the late 1990s, more than 20 years after separation from service. While the evidence demonstrates that the veteran currently has Type II diabetes mellitus, there is no medical evidence linking such disease directly to service. The veteran served in the Air Force, and was awarded the Vietnam Service Medal for service in Thailand from March 1966 to February 1967. The veteran has provided statements that on his flight from California to Thailand in March 1966, his plane landed in Vietnam and the doors of the plane were opened. Although the original travel documents submitted by the veteran do not reflect that his plane landed in Vietnam while en route to Thailand, one of the normal flight paths to Thailand from California included stops in the Philippine Islands and Vietnam. The Board finds the veteran's statements both competent and credible. Hence, the Board finds that the evidence is in equipoise on the question of whether the veteran had "service in Vietnam" as defined by regulation, and he is therefore entitled to the presumption that he was exposed to herbicide agents during service in 1966. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2003). As the veteran did have "service in Vietnam", the Agent Orange presumption of service connection for Type II diabetes mellitus applies to this case. Hence, with consideration of the benefit-of-the doubt rule (38 U.S.C.A. § 5107(b)), the Board finds that service connection for Type II diabetes mellitus is warranted on a presumptive basis. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2003). ORDER Service connection for Type II diabetes mellitus is granted. ____________________________________________ ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2