diabetes Dmi From Ao Guam (bva)

[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

>

>

>