Thailand veterans applying for disability benefits, like those from Okinawa, Guam, Philipines, or anywhere else (than Vietnam) herbicides were stored or used will not use the so-called "Agent Orange" laws of presumptive exposure (while in Vietnam) to support their claim.     You were not in Vietnam, therefore, the laws written to provide a "presumption of exposure" do not apply to you or your (disability) claim.

Your claim is conventional.     That is, under 38 U.S.C.A. § 1110, any injury or disease that was incurred while on active duty in service may be deemed "service connected," any.     It just is that we are talking about "herbicides" or Agent Orange.

Direct Cause

Business Law Dictionary

Definition 1:     Action, event, flaw, or force that is the immediate, initiating, or primary agent which leads to, or allows to happen, an action, event, or state.

Definition 2:     Alternative term for proximate cause.

In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury.     There are two types of causation in the law, cause-in-fact and proximate (or legal) cause.

Cause-in-fact is determined by the "but-for" test:   but for the action, the result would not have happened.

For example, but for running the red light, the collision would not have occurred.     For an act to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

Practicle Example (Illustrating Direct Cause to Herbicide Exposure)

But for being stationed at a U.S. installation in Thailand,
and the prevalent use of an proximity to herbicide use,
[you] contracted a disease harmful to your life and health.

More on cause;   legally speaking

Sentence:     Exposure to herbicides [in Thailand] resulted in medical complications such as diabetes and cancer, ie, presumptive diseases. .

Exposure

2.   The condition of being exposed, especially to severe weather or other forces of nature:   was hospitalized for the effects of exposure.

3.   A position in relation to climatic or weather conditions or points of the compass:  Our house has a southern exposure.

In biology:

1.   A condition of very poor health or death resulting from lack of protection over prolonged periods under weather, extreme temperatures or dangerous substances (see also: hypothermia, hyperthermia, radioactive contamination, radiation poisoning)

2.   Acute exposure, the exposure to a toxic substance during a short period of time

Source:   Wikipedia

From the V.A. official site

Must reading for any veteran
contemplating filing a disabiity claim
based upon herbicide exposure

Learn more at Environmental Protection Agency.     Air Toxics

Toxic and Carcinogenic Chemicals

Photo is of members of the 697th Engineer Company (Pipeline) laying pipe at Camp Samae San in Satahip.
The distinguished gentleman on the left side of the ditch, with his hands on his waste, was our X.O., 1LT Furatani.     And, yes, we built petrol farms for the air force all over Thailand and probably laid pipe for their sewer needs
(and drinking water needs too.)     Gee, does that mean we get a "pass" on being exposed .. working in the ground and all???     Bull shit.

Remember, we drink, cook our food with, wash our clothes with, and take our showers with:   you guessed it -- water.     Water that was undoubtedly contaminated by the spraying of toxins on our bases.     Now, I do not claim to be a man of science or expert in the field of water studies, but I sure know how to read a prepared study and articles in S.E.A. written by professionals of authority warning of water contamination.

Effect

1.   Something brought about by a cause or agent; a result.

2.  The power to produce an outcome or achieve a result; influence: The drug had an immediate effect on the pain. The government's action had no effect on the trade imbalance.

The National Academy of Science is the sole authority on what is and what isn't a disease that is effected by herbicide exposure.     See Presumptive Diseases Chart for more on the various diseases.

In conclusion, you see -- the staff of the various regional offices are so incompetent that the only thing they can do right is abuse their authrity and interpret any'ole way they please.    They know absolutely nothing about medical diseases, measuring (scientifically) exposure, and anything else that requires brains.

Warning Notice     (Admission of Herbicide Use in Thailand)

Now, that regional V.A. offices where claims have been filed with supporting (official) U.S. Air Force history (CHECO * SEA Project) report literally exposing the truth that U.S. personnel were subjected to a barrage of herbicides use in Thailand.     This admission could very well open the flood gates on claims, and reversal of all denied appeals.     To subjectgate the importance and to limit the real affect on Thailand veteran claims, first attempt:   Waco, Texas.     enuf said here.     Now, back on track and some imprtant stuff.     ; * Contemporary Historical Examination of Current Operations

What is Direct vs. Presumptive

During the studies Congress provided for once the medical complications of exposure to herbicides became recognized, it was determined that there was no simple solution to the problem.     There was the associated scandals, canceling the studies because the White House recognized the
"endless liability," for one.

So, in Vietnam whether a tour of duty of service or just TDY, intransit "visitation" clause, any veteran was assumed to have been exposed to herbicides, a presumptive provision.     You did not have to prove a relation between the authorized diseases in cancer, diabetes (and complications) or other skin ailments, TYPES OF SOFT TISSUE SARCOMA.     See Presumptive Disease List for details.

Let's say you were intransit to Thailand via a stop at Ton Son Knut International Airport in Saigon.     Your plane stopped for two hours and then you were on your way again.     Well, by law, you are presumed to have been exposed to herbicides.     You do not have to provide concrete evidence that you were exposed and/or contracted a presumptive disease, it is simply a "given."

Much easier than a "direct cause" situation because you are not responsible for showing a relation between your disease, eg, diabetes Type II, and your military service, on active duty.     Whether you obtain medical opinions or examinations from a V.A. physician or your own private physician, you should obtain the expert opinion of such doctors.

Medical Conditions and/or Diseases Covered

Under "direct cause" any medical condition or disease can be construed to be service-connected, documented in your service medical file, etc.     Presumptive exposure to herbicides provisions allow claims for specific diseases determined by the National Academy of Sciences; see Presumptive Disease List.     If it is not on that list, presumptive, don't even file a claim because it will be denied.

Family History

You will probably want to provide a statement as to your immediate family history, ie, parents.     Certain diseases have scientific basis of history in hereditary cause.     The important point is that they also may have been contracted by other than hereditary, even with a history.

I am the only one in my famly that has diabetes.     My cousins don't have it and my mother at age 88 is in a nursing home with onset from bedridden for over a decade the past few years (doesn't count.)     Her condition is caused directly by a lack of use of her body.     My father died at the age of 75 from lung cancer because (direct) he smoked.

Now, that I have a complication of diabetes (direct) for chronic kidney failure and to continue to live require weekly dialysis treatments, I have learned from others at my clinic the wide variety of "victims."     There seems to be an inordinate amount of African-American people and Filipino which may have its roots in a hereditary condition.     Fortunately, to make my point, I was at a treatment station next to a young man (relatively) that had kidney failure from young.     He told me that it "ran in his family" and that since he was 20 years old, he worried as to when he would become a casualty.     He is in his 30's and like me, awaiting a transplant to relieve the need for weekly dialysis.

Let me put it this way, you will know whether your medical condition is hereditary or not -- when you know the medical history of your family.

I found an erroneous note in my V.A. medical file where the "authority" noted that my mother or grandmother may have had diabetes.     Wrong.     I did not know my father's mother and at the age of 8, visited her in the hospital with a severe heart condition of which she eventually died and my mother's current condition, in her 80's, is only from old age.

I remember over-hearing a conversation at a V.A. clinic between a technician and the patient and the technician asking whether the patient had a history of heart disease and/or stroke.     The patient then indicated that he had a minor stroke about a year ago and began to go into detail.     The technician stopped him to ask him at what age.     When he said "74," well, the technician began to explain that that did not count.     He was looking for such heart condition at a much youthful age, eg, 30's or 40's.

Background Documents and Articles

"Agent Orange, which contains the lethal carcinogen dioxin, is one of the planet's deadliest toxins. According to a report by the U.S. National Academy of Science, there is a "causal relationship" between AO and 11 diseases, such as cancers of the lungs, prostate, and larynx."   - Agent Orange, Cancer and Causation

"This article offers a brief overview of the health evidence on Agent Orange and cancer.     It is intended to help doctors, Vietnam veterans, and their family members understand our current state of knowledge."  - Agent Orange and Cancer

VA Agent Orange Guide

Who Can Get Benefits?     Filing Your Claim  You can apply online

Under the law, veterans who served in Vietnam between 1962 and 1975 
(including those who visited Vietnam even briefly), and who have 
a disease that VA recognizes as being associated with Agent Orange, 
are presumed to have been exposed to Agent Orange.

These veterans are eligible for service-connected compensation based 
on their service, if they have one of the diseases on VA’s list of 
“Diseases associated with exposure to certain herbicide agents.” 
This list is found in VA’s regulation, Section 3.309(e), in title 38 
of the Code of Federal Regulations. VA updates this list regularly 
based on reports from the National Academy of Sciences, an independent 
research and education institution.  

Agent Orange, toxic agents; herbicides for legal purposes are synonymous.
You will see "herbicides" interchanged with "Agent Orange" (and vice versa)
in publications and ignorant VA/DOD staffers attempting to make a stupid
point.  Yes, the agents have different formulas or "recipes," but so what?
Result - they were all deadly.  My personal preference is to say "herbicides."

What is Agent Orange?

Agent Orange was one of the weed-killing chemicals used by the 
U.S. military in the Vietnam War. It was sprayed to remove leaves 
from trees that enemy troops hid behind. Agent Orange and similar 
chemicals were known as “herbicides.” Agent Orange was applied by 
airplanes, helicopters, trucks and backpack sprayers.

In the 1970’s some veterans became concerned that exposure to Agent 
Orange might cause delayed health effects. One of the chemicals in 
Agent Orange contained small amounts of dioxin (also known as “TCDD”), 
which had been found to cause a variety of illnesses in laboratory 
animals. More recent studies have suggested that dioxin may be related 
to several types of cancer and other disorders.


As a Vietnam Veteran, What Kind of Benefits Can I Get?

U.S. Department of Veterans Affairs (VA) pays disability compensation 
to Vietnam veterans with injuries or diseases that began in, or were 
aggravated by, their military service. These are called “service-connected” 
disabilities. VA has several pamphlets describing VA benefits. They are 
available on the Internet at:  Pamphlets.   If you do not have Internet 
access at home, you can get free access at most public libraries. 
Publications are also available at your VA Regional Office 
or by calling these offices at 1-800-827-1000.  Info on VA Helpline .. careful.

How Much Compensation Will I Get?   2007 Compensation Table

Monthly payment rates are based on the veteran’s combined rating for his or her 
service-connected disabilities. These ratings are based on the severity of the 
disabilities. Additional amounts are paid to certain veterans with severe 
disabilities (“special monthly compensation”) and certain veterans with 
dependents. 

What Evidence Do I Need?   Statements in Support of Your Claim, ie, Medical Opinion

In an Agent Orange-based claim by a Vietnam veteran for service-connected benefits, 
VA requires: a medical diagnosis of a disease which VA recognizes as being 
associated with Agent Orange (listed below), competent evidence of service in 
Vietnam, and competent medical evidence that the disease began within the 
deadline (if any). 

Who Can Get Benefits?

Under the law, veterans who served in Vietnam between 1962 and 1975 
(including those who visited Vietnam even briefly), and who have a disease 
that VA recognizes as being associated with Agent Orange, are presumed to have 
been exposed to Agent Orange.

These veterans are eligible for service-connected compensation based on their 
service, if they have one of the diseases on VA’s list of “Diseases associated 
with exposure to certain herbicide agents.” This list is found in VA’s regulation, 
Section 3.309(e), in title 38 of the Code of Federal Regulations. VA updates this 
list regularly based on reports from the National Academy of Sciences, an independent 
research and education institution. View the Section 3.309.


Diseases Associated With Exposure to Agent Orange   Presumptive Disease List

These are the diseases which VA currently presumes resulted from exposure to 
herbicides like Agent Orange. The law requires that some of these diseases be 
at least 10% disabling under VA’s rating regulations within a deadline that 
began to run the day you left Vietnam. If there is a deadline, it is listed in 
parentheses after the name of the disease.

Chloracne or other acneform disease consistent with chloracne. (Must occur within 
   one year of exposure to Agent Orange). 
Chronic Lymphocytic Leukemia 
Diabetes Mellitus, Type II 
Hodgkin’s disease. 
Multiple myeloma. 
Non-Hodgkin’s lymphoma. 
Acute and subacute peripheral neuropathy. (For purposes of this section, 
    the term acute and subacute peripheral neuropathy means temporary peripheral 
    neuropathy that appears within weeks or months of exposure to an herbicide 
    agent and resolves within two years of the date of onset.) 
Porphyria cutanea tarda. (Must occur within one year of exposure to Agent Orange). 
Prostate cancer. 
Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). 
Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, 
    or mesothelioma). 

What If My Claim is Denied?  The Steps in Denial and Appeal

If the VA Regional Office says your disability is not service-connected or if the 
percentage of disability is lower than what you think is fair, you have the right to 
appeal to the Board of Veterans’ Appeals. The first step in appealing is to send the 
VA Regional Office a “Notice of Disagreement.” This Notice of Disagreement is a 
written statement saying that you “disagree” with the denial. Be sure your Notice 
includes the date of the VA’s denial letter and be sure to list the benefits you are 
still seeking.

The Notice of Disagreement must be mailed to the VA Regional Office within one year of 
the VA Regional Office’s denial of your claim or you cannot appeal.

In response to the Notice of Disagreement, you will get a “Statement of the Case” 
from the VA Regional Office. This will repeat the reasons stated in the VA’s denial 
letter why your claim was denied and will include the relevant VA regulations. Once 
you get the Statement of the Case, if you still wish to pursue your appeal, you should 
file a VA Form 9, “Appeal to Board Veterans’ Appeals,” which is sent to with the 
Statement of the Case. You have 60 days from the date on the Statement of the Case, 
or one year from the date the VA first denied your claim, to file the VA Form 9. 
Whichever date is later is your deadline.

Can I Appeal Beyond the VA Regional Office?

The Board of Veterans' Appeals (also known as "BVA") is a part of the VA, located in 
Washington, D.C. Members of the BVA review benefit claims decisions made by VA Regional 
Offices and issue a new decision. You may have a hearing before the BVA in Washington, DC 
or at your VA Regional Office.

Anyone appealing to the BVA should read the "Understanding the Appeal Process" pamphlet. 
It explains the steps involved in filing an appeal and to serve as a reference for the 
terms and abbreviations used in the appeal process. The Board mails a copy of this 
pamphlet to anyone who appeals their case. It is also available on the Internet.

Can I Appeal to a Court?   U.S. Court of Appeals for Veterans Claims    Time Limit

If the BVA does not grant all the benefits you are seeking, you have four choices: 
decide not to pursue your claim 

2. appeal to the U.S. Court of Appeals for Veterans Claims 

3. ask the BVA to reconsider its decision or 

4. reopen your case at the VA Regional Office with new and material evidence. 
Appeal to the Court  
You may appeal to the Court only if BVA has denied some or all of your benefits.
You may not appeal a BVA decision to remand your claim back to the VA Regional 
Office. You must file your appeal by mail or by fax. Send your name, address, 
phone number, and the date of the BVA decision to: 

Clerk of the Court
U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue NW
Washington DC 20004

Fax number: (202) 501-5848 

To get a list of veterans’ representatives who practice at the Court, and for 
more information on the Court, see the Court’s web site at How to Appeal. 
This list is also available by calling the Court at 1-800-869-8654. 
Ask BVA to reconsider.

The BVA will reconsider its denial decision, if it finds an “obvious error of 
fact or law” in that decision. Such a request should be sent to the BVA.
Reopen your case.

If you can get additional evidence that is both new and material, you can 
reopen your claim at the VA Regional Office and get a new decision.
  
What If I Was Exposed to an Herbicide Outside Vietnam?   Trilogy of Hypocrisy

re:  DOD List (3 months hence of phone/fax notification)   Equal Treatment

     Notification Background   Use of Herbicides in Thailand   Affidavits

As the Law applies ...    Okinawa Case     More Details 




THE ISSUE       

Entitlement to service connection for [medical name,eg, Diabetes, Type II] 
due to Agent Orange exposure.  [due to herbicides exposure.] may be substituted as well

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Criteria (last paragraph)

In a case that coincidentally also provides significant supportive data regarding claims 
with regard to Agent Orange and the legislative and other machinations associated there-
with, the United States Court of Veterans Appeals (the Court) recently found that 
plausible medical evidence of the existence of a current presumptively service-connected 
disease with an open-ended presumption period is sufficient to present a well-grounded 
service connection claim as to that disease.     The case also holds that the presence 
of the disease would carry with it the presumption of nexus to service as well. 
See Brock v. Brown, 10 Vet. App. 155, 162 (1996). 

RONALD R. BOSCH
Member, Board of Veterans' Appeals 

Herbicides were used by the U.S. military to defoliate military facilities 
in the U.S. and in other countries as far back as the 1950s. Even if you did 
not serve in Vietnam, you can still apply for service-connected benefits if 
you were exposed to an herbicide while in the military which you believe 
caused your disease or injury. If you have a disease which is on the list of 
diseases which VA recognizes as being associated with Agent Orange, the VA 
requires: 

*   a medical diagnosis of a disease which VA recognizes as being 
    associated with Agent Orange (listed below),

*   competent evidence of exposure to a chemical contained in one of 
    the herbicides used in Vietnam (2,4-D; 2,4,5-T and its contaminant TCDD; 
    cacodylic acid; or picloram), and

*   competent medical evidence that the disease began within the deadline 
    for that disease (if any). 

If you have a disease which is not on the list of diseases which VA recognizes 
as being associated with Agent Orange, VA requires: 

*   competent medical evidence of a current disability;

*   competent evidence of exposure to an herbicide during military service; and

*   competent medical evidence of a nexus (causal relationship) between 
    the herbicide exposure and the current disability.  

View the Section 3.309. 

VA Medical Care

Even if you decide not to file a claim for VA compensation benefits based on 
Agent Orange, you can still get a free physical examination at the nearest VA Medical 
Center. This is called the Agent Orange Registry Exam. This exam consists of four 
parts: an exposure history, a medical history, laboratory tests and a physical exam 
of those body systems most commonly affected by toxic chemicals. This exam might 
detect diseases which can be treated more effectively the earlier they are diagnosed. 
You may also be entitled to free ongoing medical treatment at a VA medical facility. 
Information on VA health care is available on the Internet at:  VA Healthcare. 
A listing of all VA medical facilities is available on the Internet.

Social Security Benefits

The Social Security Administration (SSA) offers both disability insurance benefits 
and supplemental security income benefits. Veterans can receive both Social 
Security disability insurance benefits and VA disability compensation. 
(The supplemental security income benefit (SSI) is offset for VA pension or 
compensation.) Unlike VA compensation benefits that are measured in degrees of 
disability, SSA benefits require a total disability that will last at least one year. 
If you cannot work because of your disability, contact the nearest district office of 
SSA at 1-800-772-1213. SSA benefits information is available on the Internet 
at SSA.gov.

Warning:  SSA disability compensation, by law, requires that you earned
sufficient credits during the past ten years.  My kidney disability was
not allowed because of this requirement (verified with a lawyer proficient
in SSA rules and regulations.)  I might as well be dead, even though I paid
into the system over a lifetime, but did not the past ten years due to 
business losses in my self-employment career.

[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).

[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,

[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).

-- Following is NOT applicable to claimant (..serving in Guam) --

[served] in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to a herbicide agent

[Notwithstanding] the aforementioned provisions relating to presumptive service connection,

[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.

[In] order to prevail with regard to the issue of service connection on the merits, "there must be medical evidence of a current disability,

[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.

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



Principles relating to service connection.

Citation Nr: 0306131	Decision Date: 03/31/03   DOCKET NO.  97-25 146

THE ISSUE

Entitlement to service connection for a skin condition, to 
include as a result of exposure to herbicides.


Initially, the Board finds that based on the medical evidence 
of record, the veteran does not have one of the listed 
diseases in order to establish service connection by 
presumption, based on herbicide exposure. 38 C.F.R. 
§ 3.309(e).  Thus, the Board proceeds with determining 
service connection on a direct causation basis. 


Citation Nr: 0527748      Decision Date: 10/13/05   DOCKET NO.  02-11 819

THE ISSUE

Entitlement to service connection for diabetes mellitus 
secondary to herbicide exposure.


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).


re:   38 CFR 3.303(d)  Principles relating to service connection. 

    (d) Postservice initial diagnosis of disease. Service connection may be granted 
for any disease diagnosed after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was incurred in service. Presumptive 
periods are not intended to limit service connection to diseases so diagnosed when the 
evidence warrants direct service connection. The presumptive provisions of the statute 
and Department of Veterans Affairs regulations implementing them are intended as 
liberalizations applicable when the evidence would not warrant service connection 
without their aid. 

   (e) Disease associated with exposure to certain herbicide agents.  If a veteran 
was exposed to an herbicide agent during active military, naval, or air service, the 
following diseases shall be service-connected if the requirements of Sec. 3.307(a)(6) 
are met even though there is no record of such disease during service, provided 
further that the rebuttable presumption provisions of Sec. 3.307(d) are also satisfied. 

(Authority: 38 U.S.C. 501(a) and 1116)

   (d) Rebuttal of service incurrence or aggravation. (1) Evidence which may be 
considered in rebuttal of service incurrence of a disease listed in Sec. 3.309 will 
be any evidence of a nature usually accepted as competent to indicate the time of 
existence or inception of disease, and medical judgment will be exercised in making 
determinations relative to the effect of intercurrent injury or disease. The 
expression ``affirmative evidence to the contrary'' will not be taken to require a 
conclusive showing, but such showing as would, in sound medical reasoning and in the 
consideration of all evidence of record, support a conclusion that the disease was 
not incurred in service. As to tropical diseases the fact that the veteran had no 
service in a locality having a high incidence of the disease may be considered as 
evidence to rebut the presumption, as may residence during the period in question 
in a region where the particular disease is endemic. The known incubation periods 
of tropical diseases should be used as a factor in rebuttal of presumptive service 
connection as showing inception before or after service. 

    (2) The presumption of aggravation provided in this section may be rebutted by 
affirmative evidence that the preexisting condition was not aggravated by service, 
which may include affirmative evidence that any increase in disability was due to 
an intercurrent disease or injury suffered after separation from service or evidence 
sufficient, under Sec. 3.306 of this part, to show that the increase in disability 
was due to the natural progress of the preexisting condition. 

(Authority: 38 U.S.C 1113 and 1153)

Claim Granted:   0519524

THE ISSUE

Entitlement to service connection for diabetes mellitus,
associated with herbicide exposure.

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.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

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).

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

Claim Granted:   98000877     Okinawa Case

THE ISSUE

Entitlement to service connection for prostate cancer
due to Agent Orange exposure.

FINDINGS OF FACT

1.   Credible evidence sustains a reasonable probability that
the veteran was exposed to dioxins while serving in Okinawa.

2.   The veteran’s recent prostate cancer must be reasonably
attributed to his inservice dioxin exposure.

Analysis

In this case, the veteran clearly has had prostate cancer, 
which as of November 1996 is one of those diseases 
incorporated in the special presumptions with regard to 
disabilities as a result of exposure to Agent Orange.  

Thus, the only significant issue to be resolved is whether he 
was in fact exposed to dioxins in service.  The evidence in 
this regard may not be independently verifiable or 
overwhelming, but the aggregate data is entirely consistent 
therewith.  In that regard, the Board finds that the 
veteran’s explanations for the gaps in the otherwise 
contemporaneously documented information of record in that 
regard are quite credible.  He has provided a comprehensive 
description of the activities through which he was exposed to 
concentrated dioxins, as well as the reasons why the mixing 
of the concentrated chemicals with diesel fuel or other 
agents was necessary.  [Parenthetically, it is unnecessary in 
this context to address his opinion that the dioxin in its 
concentrated state, i.e., before he mixed it, was more toxic 
than the dispersed version sprayed as a defoliant in whatever 
location for whatever purpose].

These asserted facts mesh well with those more readily 
recognizable things for which there is no need for 
verification, i.e., why the secondary chemicals utilized for 
dilution of the concentrates, such as diesel fuel or 
kerosene, would have been most readily, and perhaps almost 
exclusively, available in the environment in which the 
veteran then worked. 
  
They also make good common sense when placed next to the 
known problems such as the ongoing rain in the Far East 
during that portion of the year which made the requirement 
for nonsoluble defoliants a reality in the first place.  All 
are entirely believable and consistent with the other known 
information.  

The service department has verified that the veteran was 
indeed where he said he was, at a time when military build-up 
from a support standpoint was considerable, doing a job which 
was entirely consistent with the mixing and other transport 
of herbicides, and at a time when these were both used and 
warnings not necessarily given, as he stated, since the 
hazards were not fully understood.  He can scarcely be 
faulted for the nonverifiability of specific practices in the 
so-called Okinawan theater of operations.  His assertions in 
that regard are both reasonable and justifiable and appear 
both sound and factually accurate, all of which raises a 
certain premise from which conclusions may be reasonably 
drawn.  It is exactly such situations in which the Court has 
mandated that the Board make judgments with regard to 
ultimate and relative credibility, which in this case, the 
Board finds in the affirmative.
  
Thus, having concluded that the veteran was exposed to 
herbicides while assigned to motor transport duties in 
Okinawa in 1961-2, not coincidentally concurrent with other 
entirely reasonable circumstances enumerated by the veteran, 
the Board finds that a doubt is thus raised which must be 
resolved in his favor, and in so doing, that service 
connection must be granted for prostate cancer as being the 
result of Agent Orange exposure under pertinent exceptions to 
the regulations.  38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§  
3.303, 3.307, 3.309.


ORDER

Service connection for prostate cancer due to Agent Orange 
exposure is granted.



		
	RONALD R. BOSCH
	Member, Board of Veterans' Appeals

Claim Denied:   0512980

THE ISSUE

Entitlement to service connection for diabetes mellitus associated with herbicide exposure.

FINDINGS OF FACT

1. The veteran did not serve in Vietnam and there is no credible evidence showing he ever had duty or visitation in Vietnam.

2. There is no competent evidence of actual exposure to herbicides during service. *

3. There is no medical evidence linking the appellant's current diabetes mellitus to his active military service.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Service Connection

The appellant asserts that service connection is warranted for diabetes mellitus associated with herbicide exposure. He asserts that he was exposed to herbicide while cleaning spillage from 55-gallon drums at Korat Royal Thai Air Force Base (RTAFB) in Thailand between 1970 and 1972.

Even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-452, § 5, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation).


* At the time of this filing, ie, before notice of use of herbicides in Thailand on 11 Oct 07 for DOD List, there is no evidence for direct causation and exposure to such herbicides.



NVLSP Comments
on VA proposal to rescind "offshore duty rule"
as provided for in M21-1 Adjudication Manual
to a position unfavorable to claimants

Distilled Water Discussion -

  Potential pathway to exposure to dioxins   Continued   Footnotes   Example of Runoff

  Conclusion

Congress Intent

  Intent as to 38 U.S.C. 1116     Intent as to AOA     Intent as to minutes exposed to herbicides

  Scientific Analysis lacking by VA     Egregious Conclusions