Citation Nr: 18141868 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-35 287A DATE: October 11, 2018 ORDER Service connection for type II diabetes mellitus is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran is diagnosed with type II diabetes mellitus. 2. The evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service in Thailand. CONCLUSIONS OF LAW The criteria to establish service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1967 to May 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that service connection for diabetes was previously denied in an unappealed August 2003 rating decision. Generally, new and material evidence is required to reopen a previously denied claim. However, the Veteran’s service personnel records were not on file at the time of the August 2003 rating decision, and pursuant to 38 C.F.R. § 3.156 (c) (2017), when VA receives relevant service department records that existed at the time of a prior final decision, VA will reconsider the prior decision without the need for new and material evidence. Therefore, given that the claims file now includes the Veteran’s service personnel records, the Board will consider the diabetes claim on a de novo basis. Accordingly, the matter has been recharacterized as shown above. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Diabetes Mellitus The clinical evidence of record demonstrates that the Veteran has been diagnosed with type II diabetes mellitus. See September 2014 VA physician’s statement; see also February 2014 VA treatment record (noting that the Veteran had diabetes). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force 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, herbicide exposure should be conceded on a facts-found or direct basis. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.309 (e), presumptive service connection based on Agent Orange exposure is available for type II diabetes. The Veteran maintains that his currently diagnosed diabetes is related to in-service herbicide exposure while serving in Thailand. Specifically, he contends that he was exposed to herbicide agents during his tour of duty with the College Eye Task Force while serving in Southeast Asia. A response from the Air Force Historical Research Agency(AFHRA) documents the history of the 552nd AEW&C Wing, College Eye Task Force, Forward Operating Base located at Korat Royal Thai Air Force Base (Korat RTAFB) from January 1970 to September 1970. Service personnel records show that, while serving with the College Eye Task Force, the Veteran was a “crew chief” on the EC-121D aircraft. In a September 2015 statement, the Veteran indicated that his unit was on the perimeter of the base and herbicide agents were used to control vegetation. The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the Veteran’s military occupational specialty as a crew chief (requiring him to work on aircrafts) and other related maintenance and inspection duties would reasonably require him to routinely travel near the perimeter of the air base. The Veteran also specifically indicated that his unit was on the perimeter of the base. Therefore, the Board finds that based on the Veteran’s competent and credible lay statements regarding his responsibility as a crew chief while serving in Thailand, all reasonable doubt should be resolved in his favor and it is at least as likely as not that he meets the criteria for conceding exposure to herbicide agents during active military service in Thailand. Resolving any doubt in the Veteran’s favor, his exposure to herbicide agents in Thailand during the Vietnam Era has been conceded. Accordingly, service connection for diabetes mellitus, type II is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND A remand is necessary to obtain clarification as to the etiology of the Veteran’s bilateral hearing loss disability. Initially, the evidence demonstrates the Veteran has bilateral hearing loss for VA compensation purposes, as evidenced by a July 2014 VA examination report. In the February 2015 notice of disagreement, the Veteran asserts that he was exposed to acoustic trauma during service. According to his DD 214, the Veteran’s Military Occupational Specialty (MOS) was an aircraft maintenance specialist. The Veteran maintains that his duties as a crew chief exposed him to the loud noise of the aircraft engines during start-up and testing, as well as altitude noise while in flight. The Veteran has also been awarded service connection for tinnitus based on his in-service noise exposure. As such, based on the responsibilities and duties of the Veteran, the Board concedes the Veteran was exposed to acoustic trauma in service. The Veteran was afforded a VA hearing examination in July 2014. The examiner opined that it was less likely as not the Veteran’s sensorineural right ear hearing loss was caused by or a result of military service. The examiner reasoned the Veteran’s had normal hearing thresholds on his entrance and separation examinations. In contrast, the examiner opined that the Veteran’s sensorineural left ear hearing loss was likely caused by or a result of military service, however, the examiner provided the contradicting rationale that the Veteran had normal hearing on his entrance and separation examinations. In a subsequent July 2014 VA addendum, the audiologist clarified her statement and opined that it was less likely as not the Veteran’s left ear hearing loss was caused by or a result of an event of military service, and reasoned that the Veteran had normal hearing on his entrance and separation examinations. Although the examiner seems to acknowledge the Veteran’s report of noise exposure in service, to include a grant of service connection for tinnitus due to noise exposure, the Board finds that the opinion is inadequate, as it is based, in large part, on the lack of documented hearing loss in service. Service connection is not precluded for hearing loss which first meets VA’s definition of disability at 38 C.F.R. § 3.385 after service. Moreover, the examiner does not address the Veteran’s competent lay statements that his bilateral hearing loss started in the military. See February 2015 NOD. An adequate opinion is needed to decide this claim. Once VA undertakes to provide an examination, it is obligated to ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Board is cognizant of a November 2009 article authored by Dr. Sharon G. Kujawa, titled, “Adding Insult to Injury: Cochlear Nerve Degeneration After ‘Temporary’ Noise-Induced Hearing Loss,” which addresses the possibility of late onset hearing loss as a result of noise exposure. The article explained that despite the temporary return to hearing after noise exposure, hearing damage resulting in degeneration may not occur until several years later. The Board also finds it helpful for the medical examiner to address Dr. Kujawa’s line of research as it appears to conflict with the basis for the unfavorable July 2014 opinion and addendum. The matters are REMANDED for the following actions: 1. Forward the Veteran’s claims file to a suitably qualified audiologist, for the purpose of obtaining an addendum as to the nature and etiology of the Veteran’s current bilateral hearing loss disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the claims file, the examiner is asked to address the following: (a.) State whether the Veteran’s current bilateral hearing loss disability is at least as likely as not (50 percent or greater probability) related to the conceded in-service acoustic trauma. Note: The lack of hearing loss during service is not a bar for a claim for service connection. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). (b.) In making a determination, the examiner should address the conceded acoustic noise trauma of exposure to the noise of aircraft engine and altitude noise while in flight could result in or aggravate the Veteran’s current bilateral hearing loss. (c.) Additionally, the Board would appreciate if the examiner could specifically comment on the impact, if any, of the remaining articles authored by Dr. Sharon G. Kujawa, including the following: “Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth” by S. Kujawa, M.D. and M. C. Liberman (2006). J Neurosci. 2006 Feb 15; 26(7): 2115-2123. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) “Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift.” JARO 12:605-616. Furman AC, Kujawa SG, Liberman MC (2013) “Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates.” J. Neurophysiol. 110, 577-586. The examiner should also address the referenced article, which was authored by Dr. Sharon Kujawa, titled “Adding Insult to Injury: Cochlear Nerve Degeneration After ‘Temporary’ Noise-Induced Hearing Loss.” J Neurosci. 2009 Nov 11; 29(45):14077-85. (d.) A complete rational for all opinions must be provided. 2. Thereafter, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel