Citation Nr: 0519524 Decision Date: 07/19/05 Archive Date: 07/22/05 DOCKET NO. 02-18 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, associated with herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael F. Bradican INTRODUCTION The veteran served on active duty from October 1967 to September 1969. He served in Korea from August 1968 to September 1969. This case comes before the Board of Veterans' Appeals (Board) from a July 2002 rating decision rendered by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran served a part of his active duty in Korea from 1968 to 1969. 2. The veteran's type II diabetes mellitus is shown to be related to active duty. CONCLUSION OF LAW Affording the veteran the benefit of the doubt, type II diabetes mellitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 effective November 9, 2000. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003). The VCAA provides 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. The VCAA also requires VA to notify the claimant and any representative of any information, and any 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 any representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The veteran must also be informed that he must submit all pertinent evidence in his possession that has yet to be previously submitted. 38 U.S.C.A. §§ 5100, 5103(a), 38 C.F.R. § 3.159; Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Recently, the United States Court of Appeals for Veterans Claims (Court) revisited the notice requirements imposed upon VA by the VCAA. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Pelegrini Court held that a VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Id. The Court, however, "specifically recognize(d) that where, as here, that notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice specifically complying with [38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1)] because an initial AOJ adjudication had already occurred.'" Id. at 120. Therefore, Pelegrini did not hold that VA must vitiate all AOJ decisions rendered prior to November 9, 2000 that were pending on that date in order to provide VCAA notice and adjudicate the claims anew. The Pelegrini Court did hold that VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence he is expected to provide; and (4) request or tell the claimant to provide any evidence in his possession that pertains to the claim. Id. at 121. In the present case, a substantially complete application was received in December 2001. The RO notified the veteran of the information and evidence needed to substantiate his claim in May 2002. This notice informed the veteran of the provisions of the VCAA and the evidence required to substantiate his claim for service connection for diabetes. The RO also informed the veteran of the information and evidence that he was required to submit, including any evidence in his possession, and the evidence that the RO would try and obtain on his behalf. The RO informed him that VA would make reasonable efforts to obtain the evidence he identified. Pertinent statutes and regulations provide that VA will make reasonable efforts to help the veteran obtain evidence necessary to substantiate his claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VA's duty includes making efforts to obtain service medical records, if relevant to the claim; other relevant records pertaining to service; VA medical records; and any other relevant records held by any other source. The veteran is also required to provide the information necessary to obtain this evidence, including authorizations for the release of medical records. In a claim for disability compensation, VA will provide a medical examination which includes a review of the evidence of record if VA determines that such an examination is necessary to decide the claim. 38 C.F.R. § 3.159(c). The RO has obtained the veteran's service, VA, and private medical records. The veteran has been accorded the opportunity to present evidence and argument, and he did so at an August 2004 travel board hearing before the undersigned. The veteran has not indicated the existence of any other evidence that is relevant to his appeal. Hence, the Board concludes that all relevant data that can be obtained, has been obtained for determining the merits of the veteran's claim and that no reasonable possibility exists that any further assistance would aid him in substantiating his claim. 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). To establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred in active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). As a general matter, service connection for a disability is focused upon facts, as shown by evidence: (1) existence of a current disability; (2) existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease incurred during service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309 (1993); Cuevas v. Principi, 3 Vet. App. 542 (1992). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2003). For a 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 a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If 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) (2003). Service connection also may be granted on a presumptive basis for certain chronic disabilities when the disability in question is manifested to a compensable degree within a year after discharge from active duty. 38 C.F.R. §§ 3.307, 3.309 (2003). The veteran attributes his diabetes to exposure to herbicides in Korea. VA regulations provide that a veteran who served in Vietnam during the Vietnam era shall be presumed to have been exposed in service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date for presumption of exposure shall be the last date on which he or she served in Vietnam during the Vietnam era. See 38 C.F.R. § 3.307(a)(6) and the "Veterans Education and Benefits Expansion Act of 2001," Pub L. No. 107-103, 115 Stat. 976 (2001). If a veteran was exposed to herbicides in service in Vietnam during the Vietnam era, certain diseases, including type II diabetes mellitus, may call for presumptive service connection even without evidence of such disease in service. 38 C.F.R. § 3.309(e) (2003). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U. S. Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for a disability due to herbicide exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom., Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method by which an applicant may show causation, and thereby establish service connection. With respect to herbicide exposure claims, regulations specifically provide that, for the purposes of presumptive service connection for type II diabetes, a veteran who served in Vietnam or waters offshore or other locations if the conditions of service involved duty or visitation in Vietnam between January 9, 1962 to May 7, 1975, shall be presumed to have had herbicide exposure. See 38 C.F.R. § 3.307(a)(6)(iii). As there is no presumption of herbicide exposure for veterans who served in Korea, claims based upon herbicide exposure in Korea must present evidence that the veteran did, in fact, have such exposure. The veteran's service personnel records show that he was assigned to the 1st Battalion 17th Field Artillery 8 inch Self Propelled (1/17 FA). This unit was a part of I Corps Artillery, artillery battalions which perform a support role allowing the corps commander the flexibility to assign artillery support to the divisions within the Corps which require it the most. I Corp, at the time in question, consisted of the 2nd Infantry Division (2ID) and elements of the 7th Infantry Division (7ID). The service department has provided VA with information regarding the use of herbicides in Korea. Agent Orange was in use in Korea during the veteran's tour. A list of units located in the area of Korea where Agent Orange was used includes, among others, 1st Battalion 38th Infantry (1/38 IN) and 1st Battalion 23rd Infantry (1/23 IN). The Board notes that the list provided enumerates only combat maneuver units, armor, infantry, and cavalry. It does not list other combat units, such as artillery or aviation, or combat support and combat service support units which would normally be located adjacent to or within close proximity to the combat maneuver elements. A map study conducted by the Board indicates that the veteran's unit, 1/17 FA, was located 1.9 miles from 1/23 IN, and 2.9 miles from 1/38 IN during the time period of the veteran's tour in Korea, and subsequently during the time period when Agent Orange was used in this vicinity. In light of the close proximity of the veteran to units acknowledged by VA to have been exposed to Agent Orange, and affording the veteran the benefit of the doubt, the Board finds that a grant of service connection for type II diabetes mellitus is in order. ORDER Service connection is granted for diabetes mellitus, type II, claimed as due to in-service herbicide exposure in Korea. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs