Citation Nr: 1754418 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-01 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. 2. Entitlement to service connection for diabetes mellitus, type II (type II diabetes). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from December 1969 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2017, the Veteran appeared at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The issue of a compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has type II diabetes and is presumed to have been exposed to Agent Orange in service. CONCLUSION OF LAW The criteria for service connection for type II diabetes have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303(a)(b), 3.307(b), 3.309(e) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In light of the favorable decision to grant the Veteran's claim of service connection for type II diabetes, any deficiency as to VA's duties to notify and assist, as to this issue, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot. Service Connection Certain diseases, to include type II diabetes, may be service connected if the Veteran was exposed to an herbicide agent during active service even though there is no record of such disease during service, provided that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). Specifically, VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). In a May 2010 bulletin, C&P indicated 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. As such, C&P stated that special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. Significantly, C&P stated, "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). In the instance case, the Veteran contends that his type II diabetes is the direct result of exposure to Agent Orange in service in Thailand from 1971 to 1972. The record reflects that the Veteran currently has type II diabetes; a September 2013 pharmacy diabetes note from Tampa VA Medical Center indicates that the Veteran has had the condition, at that time, for 21 years. The Veteran's military personnel records indicate that he was stationed in Thailand on Ubon base from July 1971 to July 1972. Thus, the Board finds that the Veteran served on an applicable base in Thailand during the Vietnam Era. The remaining issue is whether there is credible evidence that he served near the air base perimeter. At his April 2017 hearing, the Veteran stated that while stationed in Thailand, he spent time in the trench pads of the perimeter of the base and also in the oil areas when they did the oil handling and supplies for the aircrafts. He also indicated that he crossed the perimeter of the base traveling between Ubon Air Field and other bases. The Board finds these statements credible. The Veteran's DD 214 indicates that his MOS was an aircraft mechanic, and given the nature of his duties, the Board finds it credible that he traveled to the perimeter of the base. The Board therefore concedes in-service exposure to Agent Orange. As the Veteran has a chronic disability listed in 38 C.F.R. § 3.309(e) and had exposure to Agent Orange in service, presumptive service connection is warranted for the Veteran's type II diabetes. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). ORDER Entitlement to service connection for type II diabetes is granted. REMAND As to the Veteran's claim for a compensable rating for his service-connected bilateral hearing loss, the Board finds that additional development is necessary. The record reflects that the Veteran last underwent a VA audiological examination in October 2011. However, in a January 2014 representative brief and at the April 2017 hearing, the Veteran indicated that his hearing has gotten worse. He indicated that he would schedule a VA audiological examination, but no report has been associated with the file. As the Veteran indicates that his symptoms have worsened since his last exam and there is no recent audiological examination of record, the Board finds that a new VA examination is appropriate to assess the current severity of the Veteran's hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). VA's General Counsel has also indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995). Thus, the Board finds that a new VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to evaluate the current severity of his service-connected bilateral hearing loss. The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished. The examiner must provide all information required for rating purposes. 2. After completion of the above, readjudicate the claim. If the benefit requested on appeal is not granted, the Veteran should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the statement of the case, and provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs