Citation Nr: 0532642 Decision Date: 12/02/05 Archive Date: 12/21/05 DOCKET NO. 02-05 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to secondary service connection for blindness. 3. Entitlement to secondary service connection for hypertension. 4. Entitlement to secondary service connection for peripheral neuropathy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Associate Counsel INTRODUCTION The veteran served on active duty from July 1963 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2002, the veteran testified before the undersigned. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The evidence establishes that the veteran service in the Republic of Vietnam during the Vietnam War. 2. The veteran has been diagnosed with II diabetes mellitus. 3. The evidence has established an etiological link between the veteran's diabetes mellitus and his blindness, hypertension, and peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.313 (2005). 2. The criteria for secondary service connection for blindness have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.310(a) (2005). 3. The criteria for secondary service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.310(a) (2005). 4. The criteria for secondary service connection for peripheral neuropathy have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.310(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the issues of service connection for diabetes mellitus, blindness, hypertension, and peripheral neuropathy, the Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with the claim given the favorable Board's decision with regard to all the issues on appeal. II. Service Connection for Diabetes Mellitus In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also may be granted on a presumptive basis for Type 2 diabetes mellitus manifested to a compensable degree at any time after service in a veteran who had active military, naval, or air service during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2005). The Veterans Education and Benefits Expansion Act of 2001 (VEBEA), Public Law No. 107-103, 115 Stat. 976, among other things, added Type 2 diabetes mellitus to the list of presumptive diseases based upon herbicide exposure (codifying a VA regulation which had been in effect since July 2001), and provided a presumption of exposure to herbicides for all veterans who served in Vietnam during the Vietnam Era, not just those who have a disease on the presumptive list provided in 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e). These statutory provisions became effective on the date of enactment, December 27, 2001. The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that nation) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). Id. Similarly, in another precedent opinion, the VA General Counsel concluded that the term, "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. See VAOPGCPREC 7-93. Again, a showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam. The veteran contends and his service records verify that he was stationed at Clark Air Force Base in the Philippines during the Vietnam War. The veteran was a member of the 2876 GEEIA Squadron. He stated that he went into Vietnam in September 1964 and in mid-1966 on a Temporary Duty Assignment. The veteran's service personnel file has not been located by the RO or the National Personnel Records Center. It would likely give definitive information as to whether the veteran served in Vietnam, but it is unavailable. In August 2004, the United States Armed Services Center for Unit Records Research (USASCURR) verified that the veteran's squadron was stationed at Clark Air Force Base in the Philippines. Additionally, USASCURR indicated that Detachment 3 of 2876 GEEIA Squadron was stationed at Tan Son Nhut Air Base in the Republic of Vietnam. There is no information in the claims file as to whether the veteran was a member of Detachment 3. Furthermore, a service medical record shows the veteran was treated in January 1966 at the GP Dispensary at the Air Base in Udorn, Thailand. This evidence tends to support the veteran's claim of being assigned to Southeast Asia, to include the Republic of Vietnam, on temporary duty assignments. Given the evidence that Detachment 3 of the veteran's squadron was stationed in Vietnam and the evidence that the veteran was treated in Udorn, Thailand, the Board finds that the evidence is at least in relative equipoise as to whether the veteran had service in the Republic of Vietnam. The reasonable doubt regarding this fact is resolved in the veteran's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Board concludes that service connection for diabetes mellitus is granted, based on the veteran's service in Vietnam and the presumption of exposure to herbicides. 38 C.F.R. §§ 3.307, 3.309. III. Service Connection for Blindness, Hypertension, and Peripheral Neuropathy A disability which is proximately due to, or the result of, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). As stated above, service connection has been awarded for diabetes mellitus. The veteran has claimed service connection for blindness, hypertension, and peripheral neuropathy as secondary to his diabetes mellitus. The veteran was afforded VA examinations for diabetes mellitus and peripheral nerves in September 2004. They offered the only opinions as to whether the veteran's blindness, hypertension, and peripheral neuropathy are related to his diabetes mellitus. The examiner opined that the veteran's hypertension was as likely as not secondary to his type II diabetes mellitus. The peripheral nerves examiner opined that the veteran's peripheral neuropathy was most likely secondary to his underlying insulin dependent diabetes mellitus. A May 2003 eye care treatment record shows the veteran had a history of proliferative diabetic retinopathy. His September 2004 VA diabetes mellitus examination shows he was status post multiple laser treatments to both eyes. Therefore, while there is no specific opinion as to whether the veteran's blindness is related to his diabetes mellitus, the Board interprets his diagnosis of a history of diabetic retinopathy as such an opinion. The subsequent laser treatments may have improved his vision, but that information is pertinent to the rating assigned to the veteran's blindness, not to the issue of service connection. Given the evidence showing that the veteran's blindness, hypertension, and peripheral neuropathy are secondary to his service-connected diabetes mellitus and the absence of any medical evidence to the contrary, the Board finds that the evidence is at least in relative equipoise as to whether the veteran's claimed disabilities are secondary to his type II diabetes mellitus. The reasonable doubt regarding this fact is resolved in the veteran's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, supra. Thus, the Board concludes that secondary service connection for blindness, hypertension, and peripheral neuropathy is granted. 38 C.F.R. §§ 3.310. ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to secondary service connection for blindness is granted. Entitlement to secondary service connection for hypertension is granted. Entitlement to secondary service connection for peripheral neuropathy is granted. ____________________________________________ M. L. WRIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs