Citation Nr: 1024408 Decision Date: 06/30/10 Archive Date: 07/08/10 DOCKET NO. 08-04 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for type II diabetes mellitus, claimed as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) as a member of the Army National Guard of Illinois from June to December 1963, and served on active duty in the Army from May 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife appeared at a videoconference hearing before the undersigned Veterans Law Judge in March 2010. A transcript is of record. FINDINGS OF FACT 1. The Veteran has been diagnosed with a disorder, type II diabetes mellitus, which is among those conditions presumptively related to exposure to Agent Orange or other herbicide agents in service. 2. The Veteran did not serve in the Republic of Vietnam, nor do his service records show service in any of the Army units shown to have been exposed to herbicide agents while serving in or near the Korean Demilitarized Zone (DMZ). 3. Based upon Army personnel records and the testimony and
evidence presented at his personal hearings, the record is in relative equipoise as to whether the Veteran traveled to the vicinity of the Korean DMZ during the period when Agent Orange or other herbicide agents were utilized there to suppress vegetation. CONCLUSION OF LAW Giving the benefit of the doubt to the Veteran, his type II diabetes mellitus is presumed to have been incurred in active military service. 38 U.S.C.A. 1101, 1110, 1112, 1113, 1116, 1131, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. 3.159, 3.326(a) (2009). In view of the disposition herein, additional discussion of those procedures is unnecessary, as any defect in the notice or assistance provided to the Veteran constituted harmless error. II. Service Connection A. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. 3.303(a) (2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. 1113(b); 38 C.F.R. 3.303(d).
The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The law also provides that, if a veteran was exposed to a herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type II diabetes; Hodgkin's disease; multiple myeloma; non-hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than ostrosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. 3.307(a)(6) are met. 38 U.S.C.A. 1116; 38 C.F.R. 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent... unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. 1116(f). As to veterans who did not serve in Vietnam, but served in Korea, VA has been advised by the Department of Defense that Agent Orange was used along the Demilitarized Zone in Korea from April 1968 to June 1969. Fields of fire between the front line defensive positions and the south barrier fence were defoliated using the herbicide. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence north of the "civilian control line." There is no indication that herbicides were sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters downwind. See VA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10, Subparagraph o; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003. The estimated number of exposed personnel is 12,056. If a Veteran served in Korea with one of the listed units between April 1968 and July 1969, exposure must be verified by the service department. Id. Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. 3.309(e) are applicable. In addition, the Secretary of Veterans Affairs has issued a proposed amendment to the adjudication regulations regarding this type of case. See Proposed Rule: Presumptive Herbicide
Exposure for Certain Veterans Who Served in Korea, 74 Fed. Reg. 36,640-48 (July 24, 2009). The proposed regulation would provide a presumption of exposure to Agent Orange to veterans who served in or near the Korean DMZ between April 1, 1968, and July 31, 1969. The period afforded for public comment has run, but the proposal has not been issued in final form. When a disease is first diagnosed after service and not within an applicable presumption period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to a herbicide agent while in military service. See 38 U.S.C.A. 1110; 38 C.F.R. 3.303; Combee, at 1043-44. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. 5107(b); 38 C.F.R. 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis In this case, the Veteran contends that he has type II diabetes mellitus due to exposure to Agent Orange while in active service. Specifically, in a September 2007 letter, he asserted that he was assigned to the 7th Infantry Division, which was stationed at Camp Casey in Korea. He contends that herbicides were used at Camp Casey as well as a number of places he was assigned to go to in the course of his duties. He was stationed in Korea from January 1969 to August 1969, where he was a part of the Command Maintenance Management Inspection (CMMI) team. At his March 2010 Board hearing, the Veteran explained that the CMMI team travelled to various units of the 7th Infantry to conduct inspections to ensure readiness of the units. The Veteran primarily served as the inspector of the prescribed load list on the team, and his job was to ensure that the records and maintenance parts in each company were accurate and that each company had the correct number of parts they needed to function properly. The Veteran stated that he and his team conducted inspections at places such as Camps Hovey, Beaver, and Kaiser. They also went to Sea Range, which the Veteran believed to be near Kunsan, and they stayed overnight with the 3rd Brigade in the DMZ. The Veteran testified at the March 2010 hearing that the team would often stay
overnight at the locations they were inspecting, including the locations in the DMZ. He was away from Camp Casey almost every day, although they also conducted inspections at Camp Casey itself as well. There is no evidence, and no contention, that the Veteran manifested diabetes mellitus in service or for many years after his final separation. The Board must therefore consider whether service connection can be granted presumptively based on herbicide exposure under 38 C.F.R. 3.307(a)(6). We note that type II diabetes mellitus is one of the disorders specifically found by the Secretary to be related to Agent Orange exposure under 38 C.F.R. 3.309(a). The critical question is therefore whether the Veteran either served in Vietnam or was otherwise exposed to herbicides in the course of his active duty in the U.S. Army. The Veteran acknowledges that he was never in Vietnam. The records of his National Guard ACDUTRA in 1963 show that he had no foreign service. The DD Form 214 from his Army active duty confirms that the Veteran was assigned to the Headquarters and Headquarters Company (HHC) of the 7th Infantry Division (which was based in Korea, not Vietnam), and lists his Military Occupational Specialty (MOS) as light weapons infantryman. The National Personnel Records Center (NPRC) conducted a search of the Veteran's personnel records and found no record of exposure to herbicides. The Board next observes that the claims file includes several printouts of excerpts from VA's revised Adjudication Procedures Manual (Manual), M21-1MR, including Part IV, Subpart ii, Chap. 2, Sec. C, Para. 10(o), entitled "Agent Orange in Korea." Specifically, it states that exposure to herbicides should be conceded on a factual basis if a veteran alleges service along the DMZ in Korea and was assigned to one of the specified units listed in an inserted table between April 1968 and July 1969. It clarifies that pertinent service records may show assignment to either the 2nd or 7th Infantry Division. The Manual further states that, if the veteran was not assigned to one of the specified units, the RO should submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the locations of the veteran's unit. In his September 2007 Notice of Disagreement, the Veteran contended that he was assigned to the 1-17th Infantry of the 3rd Brigade of the 7th Infantry Division, one of the units specified in the Manual provision discussed above. However, the Veteran's personnel records do not show that he was assigned to any of the units specified in the Manual. As outlined in a February 2010 letter, the Veteran contacted the JSRRC on his own to obtain information on his assignments, but received a negative response. Thus, the Veteran was unable to verify exposure to herbicides via JSRRC records. Additionally, the Veteran contacted the Asian Division of the Library of Congress, the National Archives and Records Administration, the Records Management and Declassification Agency, the U.S. Army Heritage and Education Center, and the Center for Military History, but received negative responses from all of these agencies. A January 2010 letter from the National Personnel Records Center (NPRC) is contained in the claims file. It states that a search of morning reports was
conducted for the HHC of the 7th Infantry Division from April 1, 1969, to June 30, 1969, but no entries relating to the Veteran were found. Finally, the claims file contains a December 2008 e-mail from a Compensation & Pension Policy Staff member, stating that he had reviewed a list of herbicide use and test sites outside Vietnam provided to his office by the Department of Defense (DoD), which contained 71 sites within the U.S. and in foreign countries where herbicide use or testing is acknowledged. The list did not contain any references to routine base maintenance activities such as range management, brush clearing, weed killing, etc. DoD stated that such small scale non-tactical herbicide applications have not been compiled into a list, and records of such activities have not been kept. The writer mentioned the Manual provisions described above, regarding Agent Orange use in the DMZ. Regarding the Veteran's claim, the writer stated that the 7th Infantry Division HHC CMMI Team was not one of the infantry or artillery units listed in the Manual as operating near the Korean DMZ. In addition, Camps Casey, Hovey, Kaiser, etc., were all 10 or more miles south of the DMZ. For this reason, the Veteran would need to provide some factual evidence for his duties at or near the DMZ. The writer referred the Veteran to the JSRRC, which, as mentioned above, was unable to provide any information regarding the Veteran. The Veteran submitted a number of documents and buddy statements in support of his contention that he was exposed to Agent Orange. An undated letter from T.E.M. states that the author was stationed at Camp Casey in 1965 to 1966, and that he observed the spraying of chemicals around the fence line, guard towers, and observation posts of the company area, and that the application of chemicals was performed several times during his tour in Korea. The Board notes that the events described in the letter occurred several years before the Veteran was stationed at Camp Casey. Next, a June 2004 letter from S.W. states that he was assigned to the Chemical Company of the 2nd Infantry Division and was based out of Camp Howze in Korea from 1968 to 1969. His company was responsible for the application of herbicides in Korea. S.W. said the perimeter and mess hall of Camp Casey were treated with herbicide agents. The claims file also contains a March 2010 letter from T.F.C., who was also assigned to the 7th Infantry Division and was stationed at Camp Casey from June 1968 to August 1969. It is noted that T.F.C. was a personnel specialist in the records unit. In his letter, T.F.C. states that he reviewed the Veteran's service records, and noted that Camp Casey was determined to be in the area of the DMZ per a letter from the Department of the Army to Senator John Glenn in May 1996, and by the Board in another veteran's claim for disability benefits. Excerpts from the Board's decision, dated in March 1999, cite to the letter from the Department of the Army referred to by T.F.C., and indicate the claim was granted even though the veteran in that case was not in one of the units listed in the Manual as having been exposed to herbicides. T.F.C. attached a copy of another Board decision dated in August 2007 that granted service connection for diabetes on a presumptive basis to a veteran whose service records showed that he was assigned to the 1st Battalion,
31st Artillery, of the 7th Infantry Division, one of the units listed in the Manual as having been exposed to herbicides. It must be noted that each decision of the Board stands on its own based upon the evidence of record and the applicable law and regulations, and decisions of the Board are considered nonprecedential in nature. 38 C.F.R. 20.1303. The Veteran also submitted a Board decision dated in July 2005 wherein service connection for diabetes was granted on a presumptive basis to a veteran whose service records showed that he was assigned to the 1st Battalion Field Artillery 8-inch Self Propelled (1/17 FA), which was part of I Corps Artillery, artillery battalions which performed a support role allowing the Corps commander the flexibility to assign artillery support to the divisions within the Corps which require it the most. The Board noted that the list of units exposed to herbicides provided in the Manual listed only combat maneuver units, armor, infantry, and cavalry, and did not include other combat units, such as artillery, aviation, combat support, or combat service support units which would normally be located adjacent to or within close proximity to the combat maneuver elements. The Board conducted a map study and found that that veteran's unit had been located 1.9 miles from 1/23 IN and 2.9 miles from 1/38 IN, both units listed in the Manual, during the time period of that veteran's tour in Korea. Thus, in light of that veteran's close proximity to units acknowledged by VA to have been exposed to Agent Orange, the Board granted service connection in that case. In addition, the Veteran submitted pictures of a truck that he and his team used. The truck belonged to the 10th Calvary Division, which is on the list of units acknowledged to have been exposed to herbicides. Finally, he submitted two articles discussing which additional military units should be listed in the Manual as having been exposed to herbicides. The Veteran's service treatment records (STRs) are negative for any manifestation of diabetes. Indeed, the August 1969 separation examination was normal, with the exception of vision problems. The first diagnosis of diabetes was made in October 2004 at Pocatello Family Medicine, 35 years after his separation from active service. There are no opinions in the evidence of record regarding a relationship between the Veteran's diabetes and either exposure to herbicides or active service. However, the Board finds his statements and testimony to be credible. Although his service personnel records do not confirm that he went into the DMZ or that he was assigned to one of the units acknowledged to be exposed to herbicides, the Veteran's sworn testimony and buddy statements regarding herbicide use at Camp Casey can reasonably support an inference that the Veteran was assigned to visit areas in the DMZ and was at Camp Casey when herbicides were in use. Accordingly, having weighed the evidence both in support and against the claim, the Board concludes that the preponderance of evidence is not against finding in favor of the Veteran. We find that there is reasonable doubt presented in this case, and will resolve such doubt in the Veteran's favor.
Accordingly, service connection for diabetes, as presumptively due to herbicide exposure in Korea, is warranted. See 38 U.S.C.A. 5107(b); 38 C.F.R. 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for Type II diabetes mellitus, as due to herbicide exposure in service, is granted. ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
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