Citation Nr: 1011720	
Decision Date: 03/30/10    Archive Date: 04/07/10

DOCKET NO.  05-35 872A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North 
Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for type II diabetes 
mellitus.

2. Entitlement to service connection for hypertension, 
including as secondary to type II diabetes mellitus.


REPRESENTATION

Appellant represented by:	Arkansas Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

D. Richard Rasmussen, Associate Counsel


INTRODUCTION

The Veteran had active military service from September 1968 
to September 1991.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
North Little Rock, Arkansas.

(The issue of entitlement to service connection for 
hypertension is addressed in the remand portion of the 
decision below.)  


FINDING OF FACT

It is as likely as not that the Veteran has type II diabetes 
mellitus attributable to herbicide exposure during his period 
of active military service.


CONCLUSION OF LAW

The Veteran has type II diabetes mellitus that is the result 
of disease or injury incurred during active military service.  
38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5107 (West 2002 
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 
(2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

In a January 2005 statement, the Veteran contends that he was 
exposed to herbicides due to his service on the ground in 
Vietnam.  Specifically, the Veteran contends that, while 
stationed in Naha, Okinawa, assigned to the 374th 
Organizational Maintenance Squadron (OMS), he was a crew 
chief for C-130 aircraft and was sent to both Tan Son Nhut 
Air Force Base (AFB) and Cam Ranh Bay AFB in Vietnam and 
while on Temporary Duty assignment (TDY) to Ching Chaung Kang 
Air Force Base in Taiwan from August 1972 to November 1972 
with the 316th Tactical Airlift Wing, the Veteran was part of 
the maintenance crew for C-130 aircraft and was sent to Na 
Trang AFB in Vietnam in November 1972.  At a January 2010 
hearing, the Veteran stated that he was sent to Vietnam three 
times:  (1)  while stationed in Naha, Okinawa as a crew chief 
aboard a C-130A with the 374th OMS, he went to Tan Son Nhut 
AFB in Vietnam for 15 days as part of the maintenance team; 
(2) as crew chief of a maintenance team, he went to Cam Ranh 
Bay AFB in Vietnam for 35 days; and (3) in 1972, he flew from 
Ching Chaung Kang AFB in Taiwan to Vietnam for a short TDY 
while working in the records section of a C-130E unit.  
Hearing Transcript at 3-5, 8-9.  Thus, the Veteran contends 
that service connection is warranted for type II diabetes 
mellitus associated with herbicide exposure.

Service connection may be established for a disability 
resulting from disease or injury incurred in, or aggravated 
by, active military service.  38 U.S.C.A. § 1110 (West 2002); 
38 C.F.R. §§ 3.303, 3.304 (2009).  In general, service 
connection requires:  medical evidence of a current 
disability; medical or, in certain circumstances, lay 
evidence of incurrence or aggravation of a disease or injury 
in service; and medical evidence of a nexus between the 
claimed in-service injury or disease and the current 
disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999).

In addition, if a Veteran was exposed to an herbicide agent 
during active military service, certain diseases, including 
type II diabetes mellitus, are presumed to be incurred in or 
aggravated during service, even though there is no record of 
the disease during service, provided that there is no 
affirmative evidence to establish that the Veteran was not 
exposed to any such agent during that service.  38 U.S.C.A. 
§§ 1113, 1116(a); 38 C.F.R. § 3.307(a)(6), 3.307(d), 3.309(e) 
(2009).  In this context, "herbicide agent" is defined as a 
chemical in an herbicide used in support of the United States 
and allied military operations in the Republic of Vietnam 
during the period beginning on January 9, 1962 and ending on 
May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant 
TCDD; cacodylic acid; and picloram.  38 C.F.R. § 
3.307(a)(6)(i).

In general, for service connection to be granted on a 
presumptive basis, it must be manifest to a degree of 10 
percent or more at any time after service.  A Veteran who 
served in the Republic of Vietnam during the period beginning 
on January 9, 1962, and ending on May 7, 1975, will be 
presumed to have been exposed during such service to an 
herbicide agent unless there is affirmative evidence to the 
contrary.  However, in order for service connection to be 
thus granted on a presumptive basis, the Veteran must have 
actually had duty or visitation in Vietnam during the 
specified time period.  See 38 C.F.R. § 3.307(a)(6)(iii) 
("service in the Republic of Vietnam" defined as "service 
in the waters offshore and service in other locations if the 
conditions of service involved duty or visitation in the 
Republic of Vietnam.").

A review of the Veteran's post-service medical treatment 
records reveals a September 2001 and October 2003 assessments 
of type II diabetes mellitus.  Thus, the Board finds that the 
Veteran has presented sufficient medical evidence of a 
current disability.

A review of the Veteran's service personnel records indicates 
the Veteran has confirmed overseas duty in Okinawa from 
February 1970 to April 1971 and in Thailand from February 
1973 to February 1974.  Additionally, the Veteran was awarded 
the Vietnam Service Medal and the Vietnam Campaign Medal.  
Finally, the RO received a response from the service 
department to the effect that:  "Record shows Veteran served 
in the Republic of Vietnam; however, we are unable to 
determine the dates in-country."

In support of his claim, the Veteran submitted a statement 
from T.G., a service comrade of the Veteran, who indicates he 
served with the Veteran in Okinawa and was sent to Vietnam 
with the Veteran to perform maintenance on C-130 aircraft.  
The Board notes that competent lay testimony is limited to 
that which the witness has actually observed, and is within 
the realm of his personal knowledge; such knowledge comes to 
a witness through use of his senses, that which is heard, 
felt, seen, smelled, or tasted.  Layno v. Brown, 6 Vet. 
App. 465 (1994). Additionally, the Board notes that the 
credibility of a witness can be impeached by a showing of 
interest, bias, inconsistent statements, or, to a certain 
extent, bad character.  As such, the Board must analyze the 
credibility and probative value of the evidence, account for 
the evidence that it finds persuasive or unpersuasive, and 
provide the reasons for its rejection of any material 
evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. 
App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 
1996).

Here, the statements of the Veteran and T.G. are consistent.  
There is no evidence of record that contradicts the Veteran's 
claims and no evidence to impeach the statement of T.G.  The 
Veteran's service personnel records do not corroborate his 
contentions that his service included time on the ground in 
Vietnam, but the Board finds that the evidence is in 
equipoise on this point, especially given the service 
department's indication that the Veteran was in fact in 
Vietnam.  In such cases, reasonable doubt is to be resolved 
in the Veteran's favor.  38 U.S.C.A. § 5107 (West 2002); 
38 C.F.R. § 3.159 (2009).  When resolving reasonable doubt in 
the Veteran's favor, the Board finds that service connection 
is warranted for type II diabetes mellitus on a presumptive 
basis.  See 38 C.F.R. § 3.307(a)(6)(iii); 3.309(e).  He was 
in Vietnam during the pertinent period and has since been 
found to have type II diabetes mellitus.


ORDER

Service connection for type II diabetes mellitus is granted.




REMAND

A review of the Veteran's post-service medical treatment 
records reveals a May 2001 assessment of hypertension.  Thus, 
the Board finds that the Veteran has presented sufficient 
medical evidence of a current disability.

VA regulations require VA to obtain a medical opinion based 
on the evidence of record if VA determines such evidence 
necessary to decide the claim.  See 38 U.S.C.A. § 5103A(d)(2) 
(West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2009).  A medical 
opinion is necessary if the information and evidence of 
record does not contain sufficient competent medical evidence 
to decide the claim.  See McLendon v. Nicholson, 20 Vet. App. 
79 (2006).  In this case, there is no medical opinion 
evidence on the relationship between hypertension and 
diabetes.  As such, the Board finds that further development 
is necessary to address the etiology of the Veteran's 
hypertension.  The Board will, therefore, remand the case to 
schedule the Veteran for a VA examination to obtain a medical 
opinion regarding the medical probability that any 
hypertension is attributable to military service or to the 
Veteran's service-connected type II diabetes mellitus.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's VA treatment 
records pertinent to hypertension 
treatment or evaluation from the 
Fayetteville VAMC prepared since October 
2009, and any other medical facility 
identified by the Veteran, and associate 
the records with the claims folder.  
Assist the Veteran in obtaining any 
identified records.

2.  Schedule the Veteran for a VA 
examination.  (Advise the Veteran that 
failure to appear for an examination as 
requested, without good cause, could 
adversely affect his claim.  See 
38 C.F.R. § 3.655 (2009).)  The claims 
file, including a complete copy of this 
remand, should be made available to, and 
reviewed by, the designated examiner.  
The examiner should take a detailed 
history from the Veteran, conduct an 
examination, and ensure that all tests 
necessary to providing the opinion 
requested below are conducted. 

In consideration of the examination 
results, the examiner should ascertain 
whether the Veteran has hypertension.  
The examiner should then discuss the 
etiology and the onset of any diagnosed 
hypertension.  The examiner should 
indicate whether it is at least as likely 
as not (i.e., there is at least a 50 
percent probability) that hypertension is 
related to the Veteran's period of active 
military service, or has been caused or 
made chronically worse by service-
connected type II diabetes mellitus.  The 
bases for the opinion(s) provided should 
be explained in detail.  (The Board 
recognizes that a certain degree of 
conjecture is required to arrive at any 
medical opinion; the examiner should 
state the medical probabilities even if 
speculation is required to do so.)

After the requested examination has been 
completed, the report should be reviewed 
to ensure it is in complete compliance 
with the directives of this remand.  If 
the report is deficient in any manner, it 
should be returned to the examiner.  See 
Stegall v. West, 11 Vet. App. 268 (1998).

3. After undertaking any other 
development deemed appropriate, re-
adjudicate the claim of service 
connection for hypertension, including as 
secondary to service-connected type II 
diabetes mellitus.  If the benefit sought 
is not granted, furnish the Veteran and 
his representative with a supplemental 
statement of the case (SSOC) and afford 
them an opportunity to respond before the 
record is returned to the Board.

By this remand, the Board intimates no opinion as to any 
final outcome warranted.  No action is required of the 
Veteran until he is notified by VA.  The Veteran has the 
right to submit additional evidence and argument on the 
matter the Board has remanded.  Kutscherousky v. West, 12 
Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law 
requires all claims remanded by the Board or by the United 
States Court of Appeals for Veterans Claims for additional 
development or other appropriate action must be handled in an 
expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 
2002 & Supp. 2009). 



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs



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