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diabetes A.o. & Da Nang Harbor
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Chuck75
BVA ruling that Da Nang Harbor is an INLAND Waterway and presumptive.
The VA always considered the U.S.S. Oklahoma City as a "Blue Water" ship and Da Nang Harbor as "Blue Water"prior to the ruling.
http://www4.va.gov/vetapp09/files5/0941678.txt
Citation Nr: 0941678
Decision Date: 11/02/09 Archive Date: 11/09/09
DOCKET NO. 04-00 250 ) DATE
Extracts
THE ISSUE
Entitlement to service connection for diabetes mellitus type
II, to include as due to herbicide exposure.
It is undisputed that given the guidance in VAOPGCPREC 27-97,
if the Veteran's service had been limited to service on the
U.S.S. Oklahoma City outside the territorial boundaries of
the Republic of Vietnam, the presumptions contained in the
regulations would be inapplicable to his case as he would not
have met the criteria for service in the Republic of Vietnam.
However, in the instant case, the Veteran's service was
conducted on a ship that frequently anchored in a harbor
within the territorial borders of Vietnam. The evidence of
record clearly shows that Da Nang Harbor is well sheltered
and surrounded on three sides by the shoreline of Vietnam.
The harbor is nearly totally surrounded by land and that the
entire harbor is located within the territorial boundaries of
Vietnam. As such, given the location of the harbor as being
surrounded by the land on three sides and the evidence that
the harbor is within the territory of Vietnam, and resolving
all doubt in the Veteran's favor, the Board finds that Da
Nang Harbor is an inland waterway for the purposes of the
regulation.
CONCLUSIONS OF LAW
1. The conditions of the Veteran's service meet the
requirements for service or visitation in the Republic of
Vietnam during the Vietnam era. 38 C.F.R.
§§ 3.307(a)(6)(iii), 3.313(a) (2009).
2. The Veteran's diabetes mellitus is presumed to have been
incurred as a result of the Veteran's exposure to Herbicide
during service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38
C.F.R. §§ 3.303, 3.307, 3.309 (2009).
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