Protecting our veterans' children
Legacy of Our Veterans' Military Exposures L3C
Justice - social, environmental, human
Protecting our veterans' children™

Agent Orange in Guam associated to Prostate Cancer

DOCKET NO. 02-11 819

Citation Nr: 0527748
Decision Date: 10/13/05 Archive Date: 10/25/05

DOCKET NO. 02-11 819 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts

THE ISSUE

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

REPRESENTATION

Veteran represented by: Massachusetts Department of
Veterans Services

WITNESSES AT HEARING ON APPEAL

The veteran and his brother

ATTORNEY FOR THE BOARD

L. J. N. Driever, Counsel

INTRODUCTION

The veteran had active service from December 1966 to December
1970, including in Guam from December 1966 to October 1968.

This claim comes before the Board of Veterans’ Appeals
(Board) on appeal from a March 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts.

The veteran and his brother testified in support of this
claim at a hearing held at the RO before the undersigned in
May 2004. In September 2004, the Board remanded this claim
to the RO via the Appeals Management Center in Washington,
D.C.

FINDINGS OF FACT

1. VA provided the veteran adequate notice and assistance
with regard to his claim.

2. Diabetes mellitus is related to the veteran’s active
service.

CONCLUSION OF LAW

Diabetes mellitus was incurred in service. 38 U.S.C.A. §§
1110, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159,
3.303 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA’s Duties to Notify and Assist

On November 9, 2000, 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 law. Regulations
implementing the VCAA were published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) and codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The
VCAA and its implementing regulations are applicable to this
appeal.

The VCAA and its implementing regulations 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. They also require VA to notify the claimant and
the claimant’s representative, if any, of the information and
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
of the evidence is to be provided by the claimant and which
portion of the evidence VA will attempt to obtain on behalf
of the claimant.

The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA. See Quartuccio v. Principi, 16
Vet. App. 183 (2002). In this case, VA has strictly complied
with the VCAA by providing the veteran adequate notice and
assistance with regard to his claim. Regardless, given that
the decision explained below represents a full grant of the
benefit being sought on appeal, the Board’s decision to
proceed in adjudicating this claim does not prejudice the
veteran in the disposition thereof. See Bernard v. Brown,
4 Vet. App. 384, 392-94 (1993).

Analysis of Claim

In multiple written statements submitted during the course of
this appeal and 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).

Subsequent manifestations of a chronic disease in service,
however remote, are to be service connected, unless clearly
attributable to intercurrent causes. 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,
as distinguished from merely isolated findings or diagnosis
including the word “chronic.” Continuity of symptomatology
is required only where the condition noted during service is
not, in fact, shown to be chronic or when the diagnosis of
chronicity may be legitimately questioned. 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). In this regard, a veteran who, during active
military, naval, or air service, served in the Republic of
Vietnam during the Vietnam era shall be presumed to have been
exposed during such service to a herbicide agent, unless
there is affirmative evidence to establish that the veteran
was not exposed to any such agent during that service. 38
U.S.C.A. § 1116(a)(3).

Diseases associated with such exposure include: chloracne or
other acneform diseases consistent with chloracne; Type 2
diabetes (also known as Type II diabetes mellitus or adult-
onset diabetes); Hodgkin’s disease; multiple myeloma;
non- Hodgkin’s lymphoma; acute and subacute peripheral
neuropathy; porphyria cutanea tarda; prostate cancer;
respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea); and soft- tissue sarcomas (other than osteosarcoma,
chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38
C.F.R. § 3.309(e) (2004); see also 38 U.S.C.A. § 1116(f), as
added by § 201(c) of the Veterans Education and Benefits
Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976
(2001).

These diseases shall have become manifest to a degree of 10
percent or more at any time after service, except that
chloracne or other acneform disease consistent with
chloracne, porphyria cutanea tarda, and acute and subacute
peripheral neuropathy shall have become manifest to a degree
of 10 percent or more within a year after the last date on
which the veteran was exposed to an herbicide agent during
active military, naval, or air service. 38 C.F.R. §
3.307(a)(6)(ii). The last date on which such a veteran shall
be presumed to have been exposed to an herbicide agent shall
be the last date on which he or she served in the Republic of
Vietnam during the Vietnam era. “Service in the Republic of
Vietnam” includes service in the waters offshore and service
in other locations if the conditions of service involved duty
or visitation in the Republic of Vietnam. 38 C.F.R. §
3.307(a)(6)(iii).

The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed. Reg. 341, 346
(1994); see also 61 Fed. Reg. 41,442, 41,449 and 57,586,
57,589 (1996); 67 Fed. Reg. 42,600, 42,608 (2002).

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).

In order to prevail with regard to the issue of service
connection on the merits, “there must be medical evidence of
a current disability, see Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992); medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996).

Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The veteran’s service medical records reflect that, during
service, the veteran did not report herbicide exposure. In
addition, he did not receive treatment for and was not
diagnosed with diabetes mellitus. His DD Form 214, DD Form 7
and Airmen Performance Reports dated in March 1968 and
October 1968, 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.

Post-service medical evidence indicates that, since 1993, the
veteran has received treatment for, and been diagnosed with,
diabetes mellitus. One medical professional has addressed
the question of whether this disease is related to such
exposure. In June 2005, a VA examiner noted that the veteran
had had the disease for 12 years, had no parental history of
such a disease, and had served in Guam, primarily in an air
field, which was often sprayed with chemicals. She diagnosed
diabetes type 2 and opined that this disease was 50 to 100
percent more likely than not due to the veteran’s exposure to
herbicides between January 1968 and April 1970, when he
served as a crew chief for the 99th bomb wing on the ground
and tarmac. She explained that such exposure, rather than
hereditary factors, better explained the cause of the disease
given that the veteran’s parents did not have diabetes.

As the record stands, there is no competent medical evidence
of record disassociating the veteran’s diabetes mellitus from
his in-service herbicide exposure or otherwise from his
active service. Relying primarily on the VA examiner’s
opinion, the Board thus finds that diabetes mellitus is
related to the veteran’s service. 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
Department of Veterans Affairs