DIABETES MELLITUS

Summary

The Veteran, a Veteran who served from October 1965 to October 1969, appeals the denial of service connection for type 2 diabetes mellitus. The Veteran sought reconsideration of a prior denial, arguing that the PACT Act's expanded herbicide exposure presumptions should apply to his claim. The Veteran alleged exposure to Agent Orange and contaminated water from spray and mist on the flight deck of the USS America while offshore of Vietnam, and at "Yankee Station." He also theorized that some herbicides might have blown out to sea. However, the Veteran denied ever setting foot in Vietnam. The Board vacated its prior denial, acknowledging the PACT Act's impact. Nevertheless, the Board found no factual or presumptive basis for herbicide exposure. The Veteran's ship was not located within the 12 nautical miles defined as "offshore waters of Vietnam" under 38 U.S.C. § 1116A(d), and service records did not corroborate his claims. The Board also noted that expanded PACT Act presumptions for Thailand, Laos, Cambodia, Guam, American Samoa, and Johnson Atoll were not applicable as the Veteran did not serve in those locations. The Board also considered but rejected the applicability of a presumption related to contact with C-123 aircraft, as the Veteran did not allege such contact and served aboard aircraft carriers. The Board found no evidence to establish the threshold elements for service connection, including no presumptive exposure and no evidence of diabetes manifesting within the first post-service year. The Board concluded the persuasive evidence was against the claim, and the benefit of the doubt rule did not apply. Service connection for type 2 diabetes mellitus was denied.

Rationale

No factual or presumptive exposure to herbicides established; Service location did not meet legal definition of Vietnam's offshore waters; No evidence of diabetes manifesting within the first post-service year

Full Decision Text

Citation Nr: A26026331
Decision Date: 03/24/26	Archive Date: 03/24/26

DOCKET NO. 220606-249128
DATE: March 24, 2026

ORDER

The Board's September 2022 decision that denied service connection for type 2 diabetes mellitus is vacated.

Service connection for type 2 diabetes mellitus is denied.

FINDINGS OF FACT

1. The Veteran filed a September 2023 Motion for Reconsideration effectively asking the Board to vacate a prior September 2022 denial of service connection for type 2 diabetes mellitus and reconsider it substantively given the passage and efficacy of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) just before that decision was issued, and the Board finds the motion must be granted as the prior decision failed to substantively address the expansions of herbicide exposure presumptions under that law.

2. The persuasive evidence of record continues to show the Veteran was not factually or presumptively exposed to herbicides in service and that type 2 diabetes mellitus was not manifested in service or within the first post-service year.

CONCLUSIONS OF LAW

1. The criteria for vacating the Board's September 2022 decision that denied service connection for type 2 diabetes mellitus are met. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000.

2. The criteria for service connection of type 2 diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1116A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty from October 1965 to October 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2021 rating decision appealed by a timely June 2022 VA Form 10182 Notice of Disagreement (NOD) electing the Evidence Submission docket. 

By law, for claims appealed in this docket, the Board may only consider the evidence of record at the time of the Agency of Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of the VA Form 10182. 38 C.F.R. §20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, then, by law, the Board is not permitted to consider that evidence in this decision. 38 C.F.R. §§20.300, 20.303, 20.801. Therefore, the Board will consider the evidence of record as of the September 23, 2021 decision on appeal as well as any submitted within 90 days of the NOD (i.e., between June 6 and September 4, 2022).

1. The Board's September 2022 decision denying service connection for type 2 diabetes mellitus is vacated

The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or an authorized representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.1000. The Board's review of the prior September 2022 Board decision denying service connection for type 2 diabetes mellitus shows it failed to substantively discuss whether herbicide exposure could be found under the expanded presumptive provisions of the PACT Act, which went into effect on August 10, 2022. Therefore, the Board grants the motion for reconsideration and vacates that prior decision.

2. Service connection for type 2 diabetes mellitus is denied

To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a pertinent event or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). In evaluating these requirements, VA must analyze all evidence of record and an evaluation of its credibility and probative value
 effect on August 10, 2022. Therefore, the Board grants the motion for reconsideration and vacates that prior decision.

2. Service connection for type 2 diabetes mellitus is denied

To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a pertinent event or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). In evaluating these requirements, VA must analyze all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

Type 2 diabetes mellitus is also subject to presumptive service connection as a chronic disease under 38 U.S.C. § 1112 if manifested to a compensable degree within the first post-service year. See also 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection for such disabilities may also be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b).

Type 2 diabetes is also presumptively related to herbicide agent exposure. 38 U.S.C. §§ 1116(a)(1), (2), 1116A(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in or offshore of Vietnam is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. §§ 1116(d), 1116A(b); 38 C.F.R. § 3.307(a)(6)(iii). In addition, service in Thailand at any United States or Royal Thai base, Laos, Guam or American Samoa, Johnson Atoll, or Cambodia (at Mimot or Krek, Kampong Cham Province, during designated periods may also benefit from a presumption of herbicide exposure. 38 U.S.C. § 1116(d). 38 U.S.C. § 1116A(d) also provides that VA "shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting any of an enumerated set of points based on latitude and longitude.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the persuasive evidence of record is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Here, the Board starts by noting that a diagnosis for type 2 diabetes is conceded and, therefore, the threshold question here is whether the Veteran was factually or presumptively exposed to herbicides during service. 

Over the course of the history of this claim, in its various iterations before VA-and the Board, specifically-the Veteran has alleged that he was exposed to herbicide agents while serving aboard the USS America in the offshore waters of the Republic of Vietnam. Specifically, he has surmised that he was exposed on the flight deck from spray and mist from the water, as well as from wind blowing from the Coast of the Republic of Vietnam. He said that the water he drank and showered in may have been contaminated by Agent Orange as well, but has provided no detailed documented evidence supporting either of these claims (though he has cited, during hearings before various Veterans Law Judges (VLJs), unsourced statistics indicating large percentages of the sprayed herbicides did not land on their targets, and argued that some portion of these, therefore, must have been blown to sea). He added that he may also have been exposed to herbicide agents at "Yankee Station."

The Board acknowledges these various theories of entitlement. However, as there is no detailed or documented evidence directly corroborating any of the alleged mechanisms or manners by which herbicide agents may have made their way into contact with the Veteran under the circumstances as alleged in his various statements of record, there is no way to substantiate them. Therefore, the Board must find that this claim will live or die by the record's ability to demonstrate eligibility for the presumption of herbicide exposure in service.

To that end, the Board first notes that the Veteran does not claim-and indeed, has actively denied-ever setting foot in the Republic of Vietnam. Moreover, while
 sea). He added that he may also have been exposed to herbicide agents at "Yankee Station."

The Board acknowledges these various theories of entitlement. However, as there is no detailed or documented evidence directly corroborating any of the alleged mechanisms or manners by which herbicide agents may have made their way into contact with the Veteran under the circumstances as alleged in his various statements of record, there is no way to substantiate them. Therefore, the Board must find that this claim will live or die by the record's ability to demonstrate eligibility for the presumption of herbicide exposure in service.

To that end, the Board first notes that the Veteran does not claim-and indeed, has actively denied-ever setting foot in the Republic of Vietnam. Moreover, while he has claimed that he served in the offshore waters of Vietnam, there is no evidence or allegation of record indicating his ship was ever anchored or docked in a location consistent with the legal definition of Vietnam's "offshore waters" as laid out in 38 U.S.C. § 1116A(d). The most specific location information provided by the Veteran here is that he served at Yankee Station aboard the USS America, which he described as three or four miles offshore. However, even evidence he himself has submitted describing that location indicates it is closer to 90 or 100 miles off the North Vietnamese shores, a far cry from the 12 nautical miles described in § 1116A(d). Moreover, that section also requires service within a boundary marked by various specific intersectional points, and comprehensive research by professional VA researchers reviewing deck logs, command histories, and other relevant records associated with his service (which includes service aboard the USS America and while attached to the 13th Reconnaissance Attack (Heavy) Squadron (RVAH-13) during his time in theater), when plotted against maps considering these relevant locations, failed to show any qualifying service allowing VA to apply the presumption of exposure based on offshore service. 

The Board has also considered whether the PACT Act allows for presumptive exposure, but the only relevant expanded presumption under that Act adds locations in Thailand, Laos, Cambodia, Guam, American Samoa, and Johnson Atoll and nothing of record during the appeal period suggests he served in any such locations. Similarly, there is no evidence or allegation during the appeal period suggesting service in the inland waterways of Vietnam. Deck logs of record are silent for any such "brown water" operations, and the Veteran himself admits he only ever served aboard aircraft carriers that, by virtue of their size, plainly could not traverse into such locations.

Here, the Board also acknowledges that, during a prior May 2017 hearing before the Board, the Veteran briefly referenced the provisions of 38 C.F.R. § 3.307(a)(6)(v) describing certain individuals who served onboard or otherwise had contact with C-123 aircraft, which are "known to have been used to spray an herbicide agent during the Vietnam era," as also being afforded a presumption of herbicide exposure. However, that specific provision applies only to individuals who "performed service in the Air Force or Air Force Reserve" and, therefore, does not apply to this case and, in any case, the Veteran crucially did not affirmatively allege that he in fact had contact with such aircraft during his time in theater, even as he otherwise described spending extensive time on the flight decks of aircraft carriers.

Considering the above, the Board finds no basis for applying the presumption of herbicide exposure to the Veteran's claim. There is also no evidence or allegation during the appeal period suggesting his diabetes first manifested within the first post-service year to warrant presumptive service connection under 38 U.S.C. 1112. Absent any evidence showing any element during service to which his current diabetes could be medically related, there is also no basis for direct service connection, as even the low threshold for determining whether VA is obligated to provide an examination assessing the likely cause of the claimed disability is not met. See McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006) (holding VA must provide an examination when there is competent evidence of a current disability or relevant symptoms, an in-service factor or that certain diseases manifested during an applicable presumptive period, some indication of a causal relationship, and insufficient medical evidence to decide the claim).

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Accordingly, the Board finds the persuasive evidence of record is against finding the evidence establishes threshold elements of service connection, the benefit of the doubt rule does not apply, and the appeal must be denied at this time.

 

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Yuan, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applic
 symptoms, an in-service factor or that certain diseases manifested during an applicable presumptive period, some indication of a causal relationship, and insufficient medical evidence to decide the claim).

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Accordingly, the Board finds the persuasive evidence of record is against finding the evidence establishes threshold elements of service connection, the benefit of the doubt rule does not apply, and the appeal must be denied at this time.

 

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Yuan, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.