Citation Nr: 18154883 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-01 431 DATE: November 30, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT In resolving all doubt in his favor, the Veteran was exposed to herbicidal agents while serving at Udorn Air Force Base (AFB) in Thailand. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II is met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from September 1967 to May 1971. This matter is before the Board of Veterans Appeals (Board) from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection I. Legal Criteria Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service 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). In addition, 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 an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 are also satisfied. 38 C.F.R. § 3.309(e). Diabetes mellitus is listed among the conditions presumed to be service connected in veterans that have been exposed to certain herbicidal agents. Veterans who served in Vietnam are presumed to have been exposed to these certain herbicidal agents, including Agent Orange. 38 U.S.C. § 1116(a)(1),(2), (f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). VA has also determined that consideration should be given to claimants whose duties placed them on or near the perimeters of Thailand military bases. There was sporadic use of commercial herbicides within the fenced perimeters of several bases in Thailand, including Udorn. Resultantly, if the claimant’s military occupational specialty (MOS) or unit is one that regularly had contact with the perimeter, then that claimant was more likely exposed to commercial herbicides. Generally, if the claimant served at one of these air bases as a security policeman, a security patrol dog handler, or a member of a security police squadron, or otherwise near the air base perimeter as shown by the evidence, then herbicide exposure is conceded. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 5 (M21-1); see also VA Public Health Thailand Guidance, http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. II. Factual Background & Analysis The Veteran has a current diagnosis of diabetes mellitus, type II. See July 2014 General Medicine note. The Veteran was stationed at Udorn Royal Thai AFB in Thailand from 1968-1969. The Veteran submitted a credible statement from a fellow servicemember confirming that the Veteran had a temporary duty assignment to the “432 Security Police Squadron” that patrolled the perimeter of the base. The statement notes that the Veteran was assigned to this base security detail as an “augment” due to the limited amount of security police that could be assigned to each base. This accounts for why this assignment is not reflected in the Veteran’s personnel records. The statement also reported that C-119 aircraft were parked on the far side of the base and that those aircraft were used for defoliation purposes. The serviceman who made the statement indicates that he spoke with C-119 aircrew members who claimed that defoliation chemicals washed off the aircraft when it rained and entered the base when it flooded. Accordingly, the Board finds that the evidence is sufficient to presume the Veteran was exposed to herbicides while serving in Thailand. Accordingly, as he is now presumed to have been exposed to herbicides, his diabetes is presumed to be service connected. 38 C.F.R. § 3.307(a)(6). Service connection for diabetes mellitus, type II is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran has a current diagnosis of bilateral hearing loss. See June 2014 C & P Exam Note. The Veteran had a VA examination in June 2014. The examiner opined that the Veteran’s current hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in service because the Veteran’s hearing was within normal limits at separation from service. The examiner noted that there was a significant threshold shift in the left ear between enlistment and separation exams, indicating that the Veteran experienced some acoustic trauma while working as an airplane engine mechanic in service. As a rationale for the nexus opinion, the examiner relied on an Institute of Medicine (IOM) study in 2005 indicating it is unlikely that there is a delayed onset of noise-induced hearing loss. The United States Court of Appeals for Veterans Claims (Court) has indicated that medical opinions citing this IOM report in this manner appear to misstate or incompletely contemplate the IOM report’s pertinent conclusions. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Thus, an addendum opinion is warranted on remand. 2. Entitlement to service connection for tinnitus is remanded. The Veteran has a current diagnosis of tinnitus. See June 2014 C & P Exam Note. The June 2014 VA examiner opined that the Veteran’s tinnitus diagnosis was not at least as likely (50% probability or greater) related to his military service because the Veteran’s tinnitus began 40 years after his separation from service and was likely caused by his hearing loss. As the examiner’s opinion indicates that tinnitus is caused by his hearing loss, this issue must also be remanded as it is intertwined with the issue of service connection for bilateral hearing loss. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the Veteran’s disabilities. 2. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim of entitlement to service connection hearing loss and tinnitus. He should be invited to submit this evidence himself or to request that VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file. At least two such efforts should be made unless it is clear from the private provider’s response to the first request that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he MUST be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. After completion of directives one and two, obtain an addendum medical opinion from the June 2014 VA hearing loss and tinnitus examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of any diagnosed bilateral hearing loss and tinnitus. The examiner MUST indicate that they have reviewed the entire record. Based on the factual evidence of record, the examiner must provide an opinion that responds to the whether it is at least as likely as not (defined as a 50% or better probability) that the Veteran’s current hearing loss and tinnitus is related to his MOS as an airplane engine mechanic. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the Veteran’s claims folder): *A September 1967 entry examination reflecting no bilateral hearing loss. *An April 1971 separation examination reflecting a threshold shift in hearing loss for the left ear. *The IOM report concerning an individual’s delayed awareness on the effects on hearing from noise. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Law Clerk