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Ao Guam-


Berta

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Someone asked me for this- dont remember who---the Thailand AO BVA award I already posted here months ago.

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(:D.

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

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