diabetes Bva Grants Diabetes - Ao - Secondary Exposure - Ft Mcclellan

[carlie]

Very interesting BVA - claim granted - Diabetes Mellitus Type II - Secondary to Herbicide Exposure

at Ft McClellan.

http://www.va.gov/vetapp11/Files4/1132526.txt

Citation Nr: 1132526

Decision Date: 09/02/11 Archive Date: 09/12/11

DOCKET NO. 08-25 924

THE ISSUE

Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure.

Factual Background and Analysis

Dr. W.D.G. concluded that the activities of cleaning equipment used in the storage, transport, use and dissemination of Agent Orange at Fort McClellan in 1972 could have exposed a chemical equipment repairman to the oily substance of Agent Orange. The possibility of any exposure to dioxin at Fort McClellan was based on the Veteran's type of unit and duties and the fact that Fort McClellan in general has been a site subjected to numerous environmental contamination complaints and investigations.

Dr. W.D.G. stated that the fact that the Veteran had a serum dioxin level of 5.700 parts per trillion (PPT) is evidence of exposure, although not necessarily from a military-related exposure. However, he found it very possible that the Veteran was engaged in activities at Fort McClellan in 1972 as a chemical equipment repairman that would have put him in direct contact with Agent Orange. Because the Veteran has diabetes mellitus, type II, and it is presumed that diabetes is related to exposure to Agent Orange, Dr. W.D.G. opined that it was as least as likely as not that the Veteran's diabetes mellitus, type II, is etiologically related to his period of active service.

Based upon a review of all the evidence of record, the Board finds that service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, is warranted in this case. Initially, the Board notes that since the Veteran concedes that he never served on the land within the borders of the Republic of Vietnam, he is not eligible for presumptive service connection for diabetes mellitus, type II, based on exposure to herbicides under the provisions of 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e). See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding foot-on-land rule to be permissible statutory interpretation), cert. denied, 129 S. Ct. 1002 (2009).

Though this presumptive theory for service connection is not in his favor, because the Veteran never actually served within the borders of Vietnam, service connection on a direct basis is still available. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As the Veteran currently is diagnosed with diabetes mellitus, type II, the first requirement for direct service connection is met as the Veteran has been diagnosed with a current disability.

Regarding the second requirement for establishing service connection on a direct basis, service treatment records, including his discharge examination, are negative for any reference to a diagnosed diabetic condition. However, the Board finds competent and credible the lay evidence presented as to the origin or onset of the Veteran's diabetic disease. Viewing the evidence most favorably in favor of the Veteran, the origin or onset of his diabetes occurred in 1972, during his first year of active duty, when he was exposed to herbicides from September 1972 to December 1972 while stationed at Fort McClellan, Alabama, with the Army Chemical Corps while on AIT. He testified that he repaired chemical equipment returned from Vietnam that had been exposed to herbicides, including flame throwers, and transported chemicals.

ORDER

Service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, is granted, subject to the laws and regulations governing the award of monetary benefits.