APRIL 2011
IN THE APPEAL OF: NAME OF PLANTIFF DELETED FROM THIS WEB SITE TO PROTECT HIS PRIVACY
C. Diabetes Mellitus
The Veteran asserts that he has diabetes mellitus as the result of his active military service. He concedes that diabetes mellitus manifested after his periods of service. Specifically, the Veteran testified that he was initially diagnosed with diabetes mellitus in 2004. Post-service medical records also document that he was first diagnosed with diabetes mellitus in 2004. Nevertheless, the Veteran contends that service connection is warranted for diabetes mellitus due to in-service exposure to herbicide agents, such as Agent Orange. Specifically, he states that he was exposed to such agents when he was stationed at Udorn Royal Thai Air Force Base (RTAFB) in Thailand during the Vietnam era. The Veteran alleges that herbicides were used at the base, particularly on the perimeter to control jungle vegetation. He states that the performance of his duties regularly placed him near the perimeter of the base. The Veteran maintains that any current diabetes mellitus should be presumed to be related to the in-service exposure to herbicide agents in a similar manner as it is for service members who were stationed within the borders of the Republic of Vietnam.
As previously noted, the regulations pertaining to veterans exposed to herbicide agents generally require service within the land borders of Vietnam. The United States Court of Appeals for the Federal Circuit has upheld VA's longstanding interpretation of the regulation requiring the presence of a service member at some point on the land mass or inland waters of Vietnam in order to benefit from the presumption. Haas v. Peake, 525 F .3d 1168 (Fed. Cir. 2008), cert. denied, 1002 (2009). In the Veteran's case he has not indicated that he had service in Vietnam, and his service records do not show that he served within the land borders of Vietnam.
Recently, VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bullet in, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used.
Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Udorn RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence.
The Veteran's service records expressly show that he was stationed at Udorn RTAFB during the Vietnam War. Although he had an MOS of security supervisor during service, this was the case after his service at Udorn. When he was stationed there, his MOS was an aircraft inertial and radar systems repairman.
November 1970 performance report characterized the MOS as aircraft radar and inertial navigation systems equipment repairman. Specifically, the Veteran performed postflight, periodic, scheduled modifications, and unscheduled maintenance on inertial navigation and radar systems installed on RF-4C and F-4D aircraft. Thus the evidence does not show that the Veteran was a security policeman, a security patrol dog handler, or a member of a security police squadron when he was stationed at Udorn. Indeed, he does not claim that he walked the perimeter of the base as a guard. Instead, the Veteran testified that he was regularly in close proximity of the perimeter in the performance of his duties.
The Veteran has submitted substantial research material in support of his contention that he was exposed to herbicides at Udorn RTAFB. This evidence includes annotated maps and photographs showing the areas of the base in which he performed his aircraft maintenance duties, including areas near the perimeter.
In addition, the Veteran submitted statements from fellow service members. S.D.P. described Udorn from the time period from 1968 to 1969 and noted that the vegetation died off after heavy spraying from barrels. J.C.K. indicated that he worked in a shop within a hundred feet of the Veteran's shop at Udorn and recalled witnessing spraying around the shops and flight line to control vegetation. He stated that some of the base in the jungle looked like the desert. D.E.D. also recalled being stationed at Udorn at the same time as the Veteran and indicated that there was no foliage along the perimeter even though they were located in a jungle. D.E.D. further noted that aircraft technicians such as the Veteran and himself worked within a few feet of the base perimeter. In addition, L.M.T. stated that he was stationed at Udorn in 1970 and 1971 and worked with the Veteran on aircraft maintenance. L.M.T. recalled that much of the maintenance was not conducted in hangars. Instead, the aircraft were located on the flight line and were regularly parked near the base perimeter.
Moreover, E.L.G. stated that the Veteran worked under his supervision at Udorn and noted that the Veteran spent long hours on the flight line maintaining aircraft. He indicated that the Veteran spent very little time in the shop areas. T.L.E., who was also stationed at Udorn with the Veteran, similarly recalled that much of the aircraft maintenance took place on the flight line and rarely in a hangar. L.M.P. stated that he was stationed at Udorn from 1965 to 1969. L.M.P., D.L.E., and A.B.C. each recalled witnessing defoliant spraying around the perimeter of the base at Udorn.
Given the research evidence submitted by the Veteran, the numerous statements from fellow service members, and the Veteran's seemingly credible testimony, it appears that the Veteran likely performed his duties or otherwise served near the air base perimeter at Udorn RTAFB. There is no explicit evidence that he was exposed to herbicide agents. However, in view of the information set forth by C&P in the May 2010 bulletin and resolving all reasonable doubt in the Veteran's favor, the Board finds that he was exposed to herbicide agents while he was stationed in Thailand during the Vietnam era. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.l02.
As previously noted, the post-service medical evidence shows that the Veteran has type II diabetes mellitus. That disorder is listed as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). There is no affirmative evidence showing that the Veteran's diabetes mellitus was not caused by his exposure to herbicide agents. In fact, in February 2010, Dr. R.E.L. opined that it is more likely than not that the Veteran's contraction of diabetes was secondary to his exposure to herbicides during active military service. In view of this evidence, the Board finds that the Veteran has diabetes mellitus that is attributable to his active military service. Therefore, the Board concludes that service connection is warranted for diabetes mellitus. See 38 U.S.CA. § 1116; 38 C.F.R.§§ 3.307, 3.309.