Citation Nr: 18143325 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 14-38 177A DATE: October 18, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus type II. Service connection for diabetes mellitus type II is granted. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A January 2010 rating decision denied service connection for diabetes mellitus type II. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The weight of the evidence of record supports a finding of that the Veteran had exposure to herbicide agents during his service in Thailand. 3. The competent medical evidence shows that the Veteran is currently diagnosed with diabetes mellitus type II. CONCLUSIONS OF LAW 1. The January 2010 rating decision is final. 38 U.S.C. §§ 7104, 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for diabetes mellitus type II has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1116(a); 38 C.F.R. §§ 3.156(a), 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from June 1962 to November 1985. These matters come before the Board on appeal from Rating Decisions issued by the agency of original jurisdiction (AOJ) in November 2011 and July 2013. The Veteran filed a claim for service connection for diabetes mellitus type II before the November 2011 Rating Decision. The Veteran filed a Notice of Disagreement in February 2012. The Veteran filed in March 2012 a claim for increased rating for hearing loss. The AOJ then issued the July 2013 Rating Decision. The Veteran filed a Notice of Disagreement in February 2014. The AOJ issued a consolidated Statement of the Case in October 2014. The Veteran appealed using a Form 9 in November 2014. The appeal was certified in January 2015. 1. New and material evidence has been received sufficient to reopen the claim for service connection for diabetes mellitus II. The AOJ’s last final denial of service connection for diabetes mellitus type II was in January 2010. In that determination, the AOJ stated that the Veteran had not shown the requisite service in Vietnam to qualify for the herbicide agent presumption under 38 C.F.R. §§ 3.307(a)(6), nor had the condition manifested to a compensable degree within one year after military discharge to qualify for the chronic disease presumption under 3.309(a). As such, the AOJ did not reopen the issue. The Veteran was notified of the decision and did submit new evidence within the applicable one-year appellate period. The Veteran submitted medical records that were not previously in the claim file within a year of the January 2010 rating decision. However, these documents were not new and material because while they reflected that the Veteran had a diagnosis of diabetes mellitus type 2, previous medical records in the file already reflected this diagnosis. 38 C.F.R. § 3.156(a), (b). Further, none of the records submitted at this time made it more or less likely that the Veteran was in Vietnam. Because the new records were not new and material, the January 2010 rating decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If any relevant service records are added to the claim file after a decision has been issued in a case, the claim will need to be reopened. 38 C.F.R. § 3.156(c). Newly submitted evidence is generally presumed to be credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. The evidence of record in January 2010 consisted of service treatment records (1962-1985), service personnel records including discharge documents (1962-1985), medical evidence from the Gainesville VA Medical Center Healthcare system (June 2005), medical evidence from the Orlando Outpatient Clinic (November 2009), and a previous rating decision from April 2006. After the January 2010 Rating Decision, the Veteran has submitted additional evidence. The Veteran submitted a lay statement from D.H., an Air Force Veteran who served in Thailand with the Veteran from 1970 to 1971. D.H. explained that the two of them were both jet engine mechanics at Ubon, and he corroborated the Veteran’s statements pertaining to their daily contact with the base perimeter. The Veteran also submitted three photographs that help to show the location of the barracks building and the Veteran’s duty station, as well as the route he took to get to work. None of these pieces of evidence were submitted prior to the January 2010 decision, and thus they are new. The new evidence submitted is also material because it is probative of whether or not the Veteran was exposed to herbicide agents at all (the January 2010 rating decision acknowledged only very limited herbicide agent usage in Thailand and on this basis concluded that the Veteran was not exposed). The submitted evidence makes it more likely that the Veteran came in contact with the perimeter of the base where herbicide agents would have been used. Overall, this evidence is not redundant or duplicative. Therefore, reopening of the claim is warranted. 2. Service connection for diabetes mellitus type II is granted. Certain diseases associated with exposure to herbicide agents, including diabetes mellitus type II, 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. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran has claimed exposure to herbicide agents while stationed in Thailand. VA 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 as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” 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. This 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. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. The Veteran’s medical records reflect that the Veteran has a current diagnosis of diabetes mellitus type II. The Veteran states that he was stationed at Ubon Royal Thai Air Force Base (RTAFB) from August 1970 to August 1971; the Veteran’s military personnel record confirms this assignment. The Veteran served as a Jet Engine Technician during this time period. While the Veteran did not have a MOS that is typically associated with service near the perimeter of the base, the Veteran provides a plausible explanation as to why his service was consistent with herbicide agent exposure. The Veteran states that he was quartered in a barracks that was across the street from the perimeter of the base. He also states that he had to walk through a perimeter fence every day in an area that was devoid of any vegetation (which implies that it could have been sprayed with herbicide agents) to get to his duty station. The Veteran’s statements are corroborated by statements made by D.H., an Air Force Veteran who served with the Veteran at Ubon RTAFB. D.H. states that he troubleshooted, repaired, and fine-tuned jet engines with the Veteran while they were both stationed at Ubon. D.H. states that the apparatus used to test jet engines is very loud, and for this reason the apparatus is always located as far away from the main base as is possible. D.H. states that the testing apparatus at Ubon was located adjacent to the aircraft trim pad, on the base perimeter at the far end of the taxi way. D.H. also states that he lived in the same barracks building as the Veteran, and that the barracks building was across the street from a perimeter fence which was devoid of vegetation on both sides of the fence. D.H. states that the shortest path from their barracks to their duty location was to walk along the perimeter road toward the end of the runway, and that this road was always nothing but dirt (i.e. devoid of any vegetation). D.H. opines that in all, they probably walked the perimeter of the base as much or more than the security forces that actually patrolled the perimeter. The Veteran has also submitted a few photographs in support of his statement. One such photo is a picture of the Veteran’s barracks building at Ubon RTAFB which shows the proximity of the building to the perimeter. The Veteran also submitted two aerial photographs of the base, which the Veteran marked up to reflect the location of his duty station and the route the Veteran took to and from his duty station. The photographs demonstrate that there was little to no vegetation along this route, and also demonstrate that walking this route would’ve likely been the most efficient way to get to and from the Veteran’s duty station. As such, the evidence of record clearly establishes that the Veteran served at one of the designated Thailand military bases during a time period in which the VA has acknowledged that herbicide agents were used near air base perimeters. The Veteran has provided evidence that indicates that he was frequently positioned near the perimeter of the base where herbicide agent exposure was likely. There is no evidence in the record that would call the Veteran’s statements into doubt. Based on the facts of this case as described above, the Board finds that the Veteran’s statements credible. Thus, the Veteran will be presumed to have been exposed to herbicide agents. Diabetes mellitus type II is presumed to be causally related to herbicide agent exposure. 38 C.F.R. § 3.309(e). As such, service connection for diabetes mellitus type II is warranted on a presumptive basis. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.10. For bilateral hearing impairment, the rating process begins with a state-licensed audiologist performing a controlled speech discrimination test (Maryland CNC) and a puretone threshold test on each ear. The puretone threshold test score is calculated by taking the scores at 1000, 2000, 3000, and 4000 Hertz (Hz), and then dividing by four (resulting in an average puretone threshold). The average puretone threshold and the speech discrimination score for each ear are then applied to Table VI to determine a Roman numeral designation for each ear. Table VII is then used to determine the percentage evaluation by combing the Roman numeral designations for hearing impairment of each ear, with the horizontal row representing the ear with poorer hearing and the vertical column representing the ear with better hearing. 38 C.F.R. § 4.85. The most recent VA examination in which the Veteran’s hearing was tested using a Maryland CNC test and a puretone threshold test took place in April 2013. However, the Veteran asserts that his hearing has gotten worse since that April 2013 examination. During a January 2017 evaluation the Veteran underwent speech reception threshold testing and word recognition score testing. His left ear had a speech reception threshold of 40 dB and a word recognition score of 76 percent at 80 dB. His right ear had a speech reception threshold of 40 dB and a word recognition score of 68 percent at 80 dB. The Veteran previously underwent testing in September 2015. At that time his left ear had a speech reception threshold of 35 dB with a word recognition score of 80 percent at 80 dB. His right ear had a speech reception threshold of 45 dB with a word recognition score of 68 percent at 80 dB. These hearings evaluation do not indicate the type of word/speech recognition test used to obtain the foregoing results. Because the September 2015 and January 2017 audiological evaluations did not include a Maryland CNC test or a puretone threshold test, those results cannot be used by the Board in determining whether the Veteran should be granted an increased rating for his hearing loss. 38 C.F.R. § 4.85(a). Additionally, those two evaluations indicate that the Veteran’s hearing has underwent some changes, which suggests that the results of the April 2013 examination may not be an accurate reflection of his current hearing. On remand, the AOJ should provide the Veteran with an audiological examination that can help the Veteran verify his belief that his hearing is now worse and substantiate his claim that he should be granted a compensable rating. The matter is REMANDED for the following actions: 1. Contact the audiologists who conducted the September 2015 and January 2017 audiological examinations to determine whether a Maryland CNC test was conducted at those times. If so, the audiologists should furnish any associated medical records and should explain the results of those tests. (Continued on the next page)   2. Schedule the Veteran for a VA examination that includes an audiological examination using the Maryland CNC test and puretone threshold testing. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Law Clerk