Citation Nr: 1811828 Decision Date: 02/27/18 Archive Date: 03/07/18 DOCKET NO. 12-23 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for obstructive sleep apnea (OSA). 3. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2011 and October 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in October 2017. A transcript of the hearing is of record. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's OSA is etiologically related to active duty service. 2. The Veteran was not exposed to herbicide agents during active duty service. 3. Diabetes mellitus was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicide agents. CONCLUSIONS OF LAW 1. Service connection for OSA is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. Diabetes mellitus was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(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). Sleep Apnea The Board finds that service connection is warranted for the Veteran's sleep apnea as it was incurred during active duty service. A current disability is established; OSA was diagnosed following a September 2009 sleep study at a private facility. VA medical records also confirm the finding of OSA and the Veteran has received treatment for the condition throughout the claims period. An in-service injury is also present. Service records are negative for evidence or complaints of sleep disturbance, but the Veteran provided credible testimony in October 2017 that he manifested extremely loud snoring during service and in the years immediately after. The record also contains lay statements describing the Veteran's sleep problems during active duty, including snoring and episodes of choking and breathing cessation. The Board finds that these statements demonstrate symptoms of OSA during active duty and are sufficient to establish the second element of service connection-an in-service injury. With respect to the third element of service connection, the claims file contains evidence weighing both for and against a link between the Veteran's current sleep apnea and the symptoms he experienced during service. The first medical evidence of sleep apnea dates from July 1990, when a sleep study at the VA Medical Center (VAMC) confirmed the diagnosis of OSA. Notes associated with the sleep study indicate that sleep apnea was first identified by a private neurologist in 1980, a decade after the Veteran's separation from active duty service. The lack of medical evidence for many years after service weighs against service connection for sleep apnea. However, in support of his claim, the Veteran submitted a September 2012 statement from his treating physician at the VAMC sleep clinic. Based on the Veteran's reports of symptoms dating back to active duty, the VA physician provided a medical opinion in favor of service connection for OSA. Although service records do not document the onset of sleep apnea during service and a period of 10 years lapsed before the condition was identified, the Board finds the Veteran's statements and other lay evidence are competent and credible evidence of symptoms during and since military service. As the Veteran's lay statements are competent and credible, the September 2012 medical opinion based on these statements is considered probative evidence in favor of the claim. The Board therefore finds that the evidence is at least in equipoise regarding service connection for the sleep apnea. The Board will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claim is granted. Diabetes Mellitus The Veteran contends that service connection is warranted for diabetes mellitus as it is the result of exposure to herbicide agents during active duty service in Thailand. The Veteran testified in October 2017 that he served in Thailand at U-Tapao Airfield as an aerospace ground equipment technician. He also testified that he was exposed to herbicide agents as his workspace was located close to the base perimeter where herbicides were used to clear vegetation. Additionally, he contends exposure to herbicides as he travelled to his work area on a narrow road close to the perimeter line with exposure to wind, dust and dirt. The record establishes the first element of service connection-a chronic disability. Diabetes mellitus was diagnosed upon VA examinations in August 2013 and March 2015 and VA treatment records dated throughout the claims period document treatment for the condition. The Board must now determine whether the record demonstrates the presence of an in-service injury. Service treatment records are negative for complaints or treatment related to the Veteran's endocrine system. All systems were normal at the October 1970 separation examination and laboratory testing showed normal blood sugar levels. The Veteran also denied a history of sugar or albumin in his urine on the accompanying report of medical history. Thus, service records do not indicate the incurrence of an injury during active duty. The Veteran contends that he was exposed to herbicides through his active duty service in Thailand. In his October 2017 hearing testimony and in statements dated throughout the claims period, the Veteran reports that he was exposed to herbicide agents as his work area in U-Tapao was located near the base perimeter. He also reported that he travelled in open air vehicles to his work area and received daily exposure to wind, dust, and dirt from the base perimeter where herbicide agents were utilized to clear vegetation. In response to the Veteran's contentions regarding exposure to herbicide agents, the RO associated a memorandum addressing herbicide use in Thailand during the Vietnam era with the claims file. The memorandum includes reference to a report from Project CHECO (Contemporary Historical Examination of Current Operations) addressing the use of herbicides in Southeast Asia. The report did not find that tactical herbicides were used on allied bases in Thailand, but it did indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a veteran's military occupational specialty (MOS) or unit was one which regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. VA has adopted specific procedures to determine whether a veteran was exposed to herbicides in Thailand during the Vietnam era. VA's Adjudication Procedures Manual, M21-1MR, directs that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain military bases in Thailand. See M21-1 MR, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 5(a). Additionally, the M21- 1MR provides that several items of development should be performed in claims alleging herbicide exposure in Thailand, including considering the Memorandum on "herbicide Use in Thailand during the Vietnam Era;" notifying the Veteran appropriately concerning Thailand herbicide exposure; and if necessary, requesting verification of herbicide exposure from the United States Joint Services Records Research Center (JSRRC). See id; see also VBA Fast Letter 09-20, "Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era" (May 6, 2009). After review of the record, the Board finds that the Veteran was not exposed to herbicide agents during active duty service. Personnel records verify that he was stationed at U-Tapao Airfield in Thailand during a six month period from September 1969 to March 1970. His MOS during service was an aerospace ground equipment repairman which does not indicate regular contact with the base perimeter. The M21-1 MR includes a list of the military specialties that are recognized as having regular contact with base perimeters. These specialties include security policeman, security patrol dog handler, or a member of the security police squadron. VA will also recognize service near the air base perimeter if shown by "evidence of daily work duties, performance evaluation reports, or other credible evidence." See M21-1 MR, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 5(b). In this case, the Veteran's personnel records, including performance evaluations dating from his service in Thailand, do not contain any evidence of work near the perimeter of U-Tapao base. The Veteran has testified that his workspace was located close to the base perimeter and he travelled in an open air vehicle on a road that ran alongside the perimeter. The Board finds that his testimony is credible, but also finds that the proximity to the perimeter described by the Veteran is not comparable to the type experienced by the military specialties included in the VA Manual which include regular work, walking, and patrolling alongside and "near the air base perimeter." Thus, the Board cannot conclude that the Veteran was exposed to herbicide agents by virtue of his service duties in Thailand. Additionally, to the extent the Veteran claims herbicide agents were utilized at U-Tapao Airfield during his period of service, this contention is not supported by the evidence of record detailing the use of herbicide agents in Thailand by the US military. The Memorandum on "Herbicide Use in Thailand during the Vietnam Era," specifically states that tactical herbicides (such as Agent Orange) were never used or stored in Thailand. While commercial herbicides were sporadically used for vegetation control in Thailand, the memorandum notes that units that "regularly had contact with the base perimeter" such as security police units and dog handlers and "walked the perimeters" would have a greater likelihood of exposure to commercial pesticides and commercial herbicide agents. As noted above, the Veteran's work did not bring him in such relatively close proximity to the base perimeter and it is clear that tactical herbicide agents were not used in Thailand. Furthermore, a June 2017 response from the JSRRC clearly notes that there is no documentation or evidence that tactical herbicides, such as Agent Orange, were ever used in Thailand. While the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as exposure to dust and dirt while travelling near the perimeter where he served in Thailand, the record does not establish his competency to identify the specific chemical composition of such substances. The Board therefore finds that the objective medical evidence in this case, to include the Veteran's records and official reports from the service department, are more persuasive and probative regarding any potential exposure to herbicide agents. The weight of the evidence establishes that the Veteran was not exposed to herbicide agents while on active duty in Thailand and service connection for any disability as directly due to herbicide exposure is also not possible. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (when the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation). Although the Veteran was not exposed to herbicides during active service, service connection is still possible for diabetes mellitus as a chronic disease. For veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as diabetes mellitus, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Although the record establishes a diagnosis of diabetes mellitus, there is no evidence that it manifested to a compensable degree within a year from the Veteran's separation from service. The Veteran's blood sugar levels and endocrine system were normal at the October 1970 separation examination and he denied any diabetes-related complaints on the separation report of medical history. There is also no lay or medical evidence of diabetes mellitus until October 1992, more than 20 years after the Veteran's discharge from service, when the Veteran was noted to be at risk for increased glucose after a thyroidectomy at the VAMC. Diabetes mellitus was not formally diagnosed until September 1994, two years later than the earliest evidence of glucose intolerance. Therefore, service connection for diabetes mellitus on a presumptive basis as a chronic disease is not warranted. The Board has also considered whether there is any other evidence of a link between the Veteran's diabetes mellitus and an incident of active duty service. He has not alleged any other service injuries to account for his current diabetes and service records are negative for findings or symptoms of this condition. There is also no lay or medical evidence of diabetes until decades after the Veteran's separation from service. Finally, the record is negative for any competent medical evidence in support of the claim, to include any statements from the Veteran's treating VA or private physicians. The Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for OSA is granted. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents, is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the claim for entitlement to service connection for bilateral hearing loss. The Veteran was provided a VA audiological examination in August 2011; at that time, the Veteran's loss of hearing acuity did not reach the level considered a disability by VA under 38 C.F.R. § 3.385. The Veteran testified in October 2017 that his hearing had worsened since the August 2011 examination and he is competent to report symptoms that he experiences, such as an additional loss of hearing. The Board therefore finds that the Veteran should be provided another VA audiological examination to determine the nature and etiology of any currently present hearing loss disability. The Board also notes that the Veteran is currently service-connected for tinnitus as due to in-service noise exposure associated with his duties as an aerospace ground technician. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of any currently present hearing loss disability. The claims file must be made available to and reviewed by the examiner. The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 500, 1,000, 2,000, 3,000, and 4,000 Hertz and speech recognition scores using the Maryland CNC Test. The objective findings and the Veteran's subjective complaints should be recorded in detail. If a current hearing loss disability is identified, the examiner should determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the current disability is etiologically related to any incident of service, to include the Veteran's noise exposure as an aerospace ground equipment technician. The Veteran is currently service-connected for tinnitus related to his in-service noise exposure. The complete bases for all medical opinions must be provided. 2. After completing the action detailed above, readjudicate the claim on appeal with consideration of all the evidence of record. If the benefit sought is not granted in full, issue a supplemental statement of the case and return the case to the Board if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs