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Question
Berta
> http://www.va.gov/vetapp05/files4/0527748.txt
>
--------------------------------------------------------------------------------
> Citation Nr: 0527748
> Decision Date: 10/13/05 Archive Date: 10/25/05
>
> DOCKET NO. 02-11 819 ) DATE
> )
> )
>
> On appeal from the
> Department of Veterans Affairs Regional Office in Boston,
> Massachusetts
>
>
> THE ISSUE
>
> Entitlement to service connection for diabetes mellitus
> secondary to herbicide exposure.
>
>
> REPRESENTATION
>
> Veteran represented by: Massachusetts Department of
> Veterans Services
>
>
> WITNESSES AT HEARING ON APPEAL
>
> The veteran and his brother
>
>
> ATTORNEY FOR THE BOARD
>
> L. J. N. Driever, Counsel
>
>
> INTRODUCTION
>
> The veteran had active service from December 1966 to December
> 1970, including in Guam from December 1966 to October 1968.
>
> This claim comes before the Board of Veterans' Appeals
> (Board) on appeal from a March 2002 rating decision of the
> Department of Veterans Affairs (VA) Regional Office (RO) in
> Boston, Massachusetts.
>
> The veteran and his brother testified in support of this
> claim at a hearing held at the RO before the undersigned in
> May 2004. In September 2004, the Board remanded this claim
> to the RO via the Appeals Management Center in Washington,
> D.C.
>
>
> FINDINGS OF FACT
>
> 1. VA provided the veteran adequate notice and assistance
> with regard to his claim.
>
> 2. Diabetes mellitus is related to the veteran's active
> service.
>
>
> CONCLUSION OF LAW
>
> Diabetes mellitus was incurred in service. 38 U.S.C.A. §§
> 1110, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159,
> 3.303 (2004).
>
>
>
>
> REASONS AND BASES FOR FINDINGS AND CONCLUSION
>
> VA's Duties to Notify and Assist
>
> On November 9, 2000, the Veterans Claims Assistance Act of
> 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
> 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations
> implementing the VCAA were published at 66 Fed. Reg. 45,620,
> 45,630-32 (August 29, 2001) and codified at
> 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The
> VCAA and its implementing regulations are applicable to this
> appeal.
>
> The VCAA and its implementing regulations provide that VA
> will assist a claimant in obtaining evidence necessary to
> substantiate a claim but is not required to provide
> assistance to a claimant if there is no reasonable
> possibility that such assistance would aid in substantiating
> the claim. They also require VA to notify the claimant and
> the claimant's representative, if any, of the information and
> medical or lay evidence not previously provided to the
> Secretary that is necessary to substantiate the claim. As
> part of the notice, VA is to specifically inform the claimant
> and the claimant's representative, if any, of which portion
> of the evidence is to be provided by the claimant and which
> portion of the evidence VA will attempt to obtain on behalf
> of the claimant.
>
> The United States Court of Appeals for Veterans Claims
> (Court) has mandated that VA ensure strict compliance with
> the provisions of the VCAA. See Quartuccio v. Principi, 16
> Vet. App. 183 (2002). In this case, VA has strictly complied
> with the VCAA by providing the veteran adequate notice and
> assistance with regard to his claim. Regardless, given that
> the decision explained below represents a full grant of the
> benefit being sought on appeal, the Board's decision to
> proceed in adjudicating this claim does not prejudice the
> veteran in the disposition thereof. See Bernard v. Brown,
> 4 Vet. App. 384, 392-94 (1993).
>
>
>
> Analysis of Claim
>
> In multiple written statements submitted during the course of
> this appeal and during his personal hearing, the veteran
> alleged that he developed diabetes mellitus as a result of
> his exposure to herbicide agents while serving on active duty
> in Guam. His military occupational duties as an aircraft
> maintenance specialist allegedly required him to work in an
> air field, the perimeter of which was continuously brown due
> to herbicide spraying every three months. The veteran also
> alleges that he recalls seeing storage barrels at the edge of
> the base, which he now knows housed herbicides. Following
> discharge, Anderson Air Force base in Guam, where the veteran
> was stationed, underwent an environmental study, which showed
> a significant amount of dioxin contamination in the soil and
> prompted the federal government to order a clean up of the
> site.
>
> Service connection may be granted for disability resulting
> from disease or injury incurred in or aggravated by service.
> 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004).
> Service connection may also be granted for any disease
> 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).
>
> Subsequent manifestations of a chronic disease in service,
> however remote, are to be service connected, unless clearly
> attributable to intercurrent causes. For the showing of
> 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 diagnosis
> including the word "chronic." Continuity of symptomatology
> is required only where the condition noted during service is
> not, in fact, shown to be chronic or when the diagnosis of
> chronicity may be legitimately questioned. 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).
>
> In some circumstances, a disease associated with exposure to
> certain herbicide agents will be presumed to have been
> incurred in service even though there is no evidence of that
> disease during the period of service at issue. 38 U.S.C.A.
> § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e)
> (2004). In this regard, a veteran who, during active
> military, naval, or air service, served in the Republic of
> Vietnam during the Vietnam era shall be presumed to have been
> exposed during such service to a 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(a)(3).
>
> Diseases associated with such exposure include: chloracne or
> other acneform diseases consistent with chloracne; Type 2
> diabetes (also known as Type II diabetes mellitus or adult-
> onset 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 sarcomas (other than osteosarcoma,
> chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38
> C.F.R. § 3.309(e) (2004); see also 38 U.S.C.A. § 1116(f), as
> added by § 201© of the Veterans Education and Benefits
> Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976
> (2001).
>
> These diseases shall have become manifest to a degree of 10
> percent or more at any time after service, except that
> chloracne or other acneform disease consistent with
> chloracne, porphyria cutanea tarda, and acute and subacute
> peripheral neuropathy shall have become manifest to a degree
> of 10 percent or more within a year after the last date on
> which the veteran was exposed to an herbicide agent during
> active military, naval, or air service. 38 C.F.R. §
> 3.307(a)(6)(ii). The last date on which such a veteran shall
> be presumed to have been exposed to an herbicide agent shall
> be the last date on which he or she served in the Republic of
> Vietnam during the Vietnam era. "Service in the Republic of
> Vietnam" includes service in the waters offshore and service
> in other locations if the conditions of service involved duty
> or visitation in the Republic of Vietnam. 38 C.F.R. §
> 3.307(a)(6)(iii).
>
> The Secretary of Veterans Affairs has determined that there
> is no positive association between exposure to herbicides and
> any other condition for which the Secretary has not
> specifically determined that a presumption of service
> connection is warranted. See Notice, 59 Fed. Reg. 341, 346
> (1994); see also 61 Fed. Reg. 41,442, 41,449 and 57,586,
> 57,589 (1996); 67 Fed. Reg. 42,600, 42,608 (2002).
>
> Notwithstanding the aforementioned provisions relating to
> presumptive service connection, which arose out of the
> Veteran's Dioxin and Radiation Exposure Compensation
> Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725,
> 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L.
> No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court
> of Appeals for the Federal Circuit has determined that a
> claimant is not precluded from establishing service
> connection with proof of direct causation. Combee v. Brown,
> 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also 38 C.F.R. §
> 3.303(d).
>
> In order to prevail with regard to the issue of service
> connection on the merits, "there must be medical evidence of
> a current disability, see Rabideau v. Derwinski,
> 2 Vet. App. 141, 143 (1992); medical or, in certain
> circumstances, lay evidence of in-service incurrence or
> aggravation of a disease or injury; and medical evidence of a
> nexus between the claimed in-service disease or injury and
> the present disease or injury. See Caluza v. Brown, 7 Vet.
> App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).
>
> Except as otherwise provided by law, a claimant has the
> responsibility to present and support a claim for benefits
> under laws administered by the Secretary. The Secretary
> shall consider all information and lay and medical evidence
> of record in a case before the Secretary with respect to
> benefits under laws administered by the Secretary. When
> there is an approximate balance of positive and negative
> evidence regarding any issue material to the determination of
> a matter, the Secretary shall give the benefit of the doubt
> to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
> Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
>
> The veteran's service medical records reflect that, during
> service, the veteran did not report herbicide exposure. In
> addition, he did not receive treatment for and was not
> diagnosed with diabetes mellitus. His DD Form 214, DD Form 7
> and Airmen Performance Reports dated in March 1968 and
> October 1968, however, confirm that he had active service
> from December 1966 to December 1970, including at Anderson
> Air Force base in Guam from December 1966 to October 1968.
>
> He has submitted copies of articles indicating that Agent
> Orange may have been stored and/or used on Guam from 1955 to
> the late 1960s, which is the time period during which the
> veteran served there. These articles also reflect that in
> the 1990s, the Environmental Protection Agency listed
> Anderson Air Force base as a toxic site with dioxin
> contaminated soil and ordered clean up of the site. Given
> this evidence, particularly, the articles reflecting the
> latter information, and the veteran's testimony, which is
> credible, the Board accepts that the veteran was exposed to
> herbicides during his active service in Guam.
>
> The veteran did not serve in Vietnam; therefore, he is not
> entitled to a presumption of service connection for his
> diabetes mellitus under the aforementioned law and
> regulations governing claims for service connection for
> disabilities resulting from herbicide exposure. As
> previously indicated, however, the veteran may be entitled to
> service connection for this disease on a direct basis if the
> evidence establishes that his diabetes mellitus is related to
> the herbicide exposure.
>
> Post-service medical evidence indicates that, since 1993, the
> veteran has received treatment for, and been diagnosed with,
> diabetes mellitus. One medical professional has addressed
> the question of whether this disease is related to such
> exposure. In June 2005, a VA examiner noted that the veteran
> had had the disease for 12 years, had no parental history of
> such a disease, and had served in Guam, primarily in an air
> field, which was often sprayed with chemicals. She diagnosed
> diabetes type 2 and opined that this disease was 50 to 100
> percent more likely than not due to the veteran's exposure to
> herbicides between January 1968 and April 1970, when he
> served as a crew chief for the 99th bomb wing on the ground
> and tarmac. She explained that such exposure, rather than
> hereditary factors, better explained the cause of the disease
> given that the veteran's parents did not have diabetes.
>
> As the record stands, there is no competent medical evidence
> of record disassociating the veteran's diabetes mellitus from
> his in-service herbicide exposure or otherwise from his
> active service. Relying primarily on the VA examiner's
> opinion, the Board thus finds that diabetes mellitus is
> related to the veteran's service. Based on this finding, the
> Board concludes that diabetes mellitus was incurred in
> service. Inasmuch as the evidence supports the veteran's
> claim, that claim must be granted.
>
>
> ORDER
>
> Service connection for diabetes mellitus secondary to
> herbicide exposure is granted.
>
>
>
>
> ____________________________________________
> ROBERT E. SULLIVAN
> Veterans Law Judge, Board of Veterans' Appeals
>
>
>
> Department of Veterans Affairs
>
>
>
GRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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