Citation Nr: 0302707
Decision Date: 02/12/03 Archive Date: 02/19/03
DOCKET NO. 02-10 656 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Entitlement to service connection for diabetes mellitus
type II as secondary to Agent Orange exposure.
ATTORNEY FOR THE BOARD
R. E. Smith, Counsel
The veteran had active military service from February 1970 to
December 1973. His medals and decorations include the
Vietnam Service Medal and the Republic of Vietnam Campaign
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a January 2002 rating decision by the
Department of Veterans Affairs (VA) Newark, New Jersey,
Regional Office (RO), denying the veteran entitlement to
service connection for diabetes mellitus type II as a result
of exposure to herbicides.
FINDINGS OF FACT
1. The veteran served on active duty from February 1970 to
December 1973, which included service in the Republic of
Vietnam during the Vietnam Era.
2. The evidence of record demonstrates that the veteran has
developed diabetes mellitus type II subsequent to his service
3. Diabetes mellitus type II, which was initially diagnosed
many years after service, may be presumed to be the result of
Agent Orange exposure.
CONCLUSION OF LAW
Diabetes mellitus was incurred during service. 38 U.S.C.A.
§§ 1101, 1110, 1116, 5103, 5103A, 5107 (West 1991 & Supp.
2001); 38 C.F.R. §§ 3.307, 3.309, 3.313 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act (VCAA) of 2000
The Board observes the recently enacted law and its
implementing regulations essentially eliminate the
requirement that a claimant submit evidence of a well-
grounded claim, and 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. 38 U.S.C.A. §§ 5103A, 5107(a);
38 C.F.R. §§ 3.102, 3.159(c)-(d) (2002).
The new law and regulations also include new notification
provisions. Specifically, they require VA to notify the
claimant and the claimant's representative, if any, 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 the claimant's representative, if
any, 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. 38 U.S.C.A.
§ 5103; 38 C.F.R. § 3.159(b).
The record reflects that the veteran has received the decree
of notice, which is contemplated by law. Specifically, VA
provided the veteran a copy of the January 2002 rating
decision of which this appeal ensued and a July 2002
statement of the case. These documents provide notice of the
law and relevant governing regulations, the evidence needed
to support a claim for service connection for diabetes
mellitus type II secondary to Agent Orange exposure and the
reasons for the determination made regarding the veteran's
claim. Moreover, it appears that all evidence identified by
the veteran or in his possession has been obtained and
associated with the claims file. Furthermore, the Board
finds that the current medical record is adequate for
favorable disposition of the appeal. Therefore, under the
circumstances, VA has satisfied both its duty to notify and
assist the veteran in this case and adjudication of this
appeal at this juncture poses no risk of prejudice to the
veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384
(1993); see also Dela Cruz v. Principi, 15 Vet. App. 143
(2001); Smith v. Gober, 14 Vet. App. 227 (2000).
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110. Service connection may
be granted for any disease diagnosed after discharge, when
all of the evidence establishes that the disease was incurred
in service. 38 C.F.R. § 3.303.
For purposes of establishing service connection for a
disability resulting from exposure to a herbicide agent, a
veteran who had active service 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 to an
herbicide agent during that service. 38 U.S.C.A. § 1116(f)
(West Supp. 2002). When such a veteran develops a disorder
listed in 38 C.F.R. § 3.309(e), which disorders have been
shown to be caused by exposure to Agent Orange, to a degree
of 10 percent or more following his service in the Republic
of Vietnam, the disorder shall be presumed to have been
incurred during service. 38 U.S.C.A. § 1116; 38 C.F.R.
§§ 3.307, 3.309(e) (2002). Thus, if such a veteran develops
diabetes mellitus type II to a degree of 10 percent or more
at any time after service, the disease shall be presumed to
have been incurred during service. 38 C.F.R. §§ 3.307,
Service in Vietnam includes service in the waters offshore or
service in other locations if the conditions of service
involve duty or visitation in Vietnam. 38 C.F.R. § 3.313(a)
Here, the veteran's DD Form 214 indicates that the veteran
performed honorable, active military service from February
1970 to December 1973, and that his awards and decorations
include the Vietnam Service Medal, and the Republic of
Vietnam Campaign Medal with Device. Thus, on balance, the
evidence of record supports a finding that the veteran
performed the requisite service in the Republic of Vietnam
during the Vietnam Era; and, as such, he may be presumed to
have exposed to Agent Orange during such service.
The service medical records, to include his October 1969
medical examination for service entrance and his December
1973 medical examination for service separation are negative
for complaints, findings and/or diagnoses referable to
Post service medical records include VA outpatient treatment
records compiled since 1998, which show that the veteran
received diabetes nutritional counseling in February 1999
relative to a diagnosis of diabetes mellitus type II. This
disorder was noted following laboratory testing that month to
be under poor control. A progress note in July 2000 records
that the veteran was seen for followup evaluation for his
diabetes mellitus, which reportedly was initially diagnosed
15 years ago. The disorder was reported to have been
initially treated with an oral antihypoglycemic agent with
good control. Following the veteran's stroke in 1995 he was
started on insulin.
Thus, as aptly noted by the record, the veteran has developed
diabetes mellitus type II subsequent to his active military
service during the Vietnam Era. Moreover, with the
resolution of all reasonable doubt in the veteran's favor,
the record indicates that the veteran has Vietnam service as
defined by the applicable VA statute and regulation noted
above. As such, the veteran satisfies the criteria for
presumptive service connection, and; hence, the Board may
presume that the veteran's diabetes mellitus type II was
incurred during service. 38 C.F.R. § 3.309(e). Accordingly,
service connection for diabetes mellitus is warranted. The
appeal is granted.
Service connection for diabetes mellitus type II is granted.
DEBORAH W. SINGLETON
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.