Citation Nr: 21000565 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 10-00 919 DATE: January 5, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide agent exposure and as due to chemical exposures (JP-4 jet fuel, methyl ethyl ketone, acetone, and trichloromethane), is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a vision disorder, to include as secondary to diabetes mellitus type II, is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus type II, is remanded. FINDINGS OF FACT 1. The Veteran was at least as likely as not exposed to herbicide agents while stationed on U-Tapao Air Base in Thailand. 2. The Veteran’s diabetes mellitus type II has manifested to a compensable degree after separation. 3. The probative evidence weighs in favor of finding that the Veteran does not have hearing loss for VA purposes in his right ear; the probative evidence also weighs in favor of finding that the Veteran has hearing loss for VA purposes in the left ear, but that it was not chronic in service, did not manifest to a compensable degree within one year from separation, and is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 C.F.R. §§ 3.307(a)(3), 3.309(a), 3.385 (2018); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from September 1965 to January 1969, including foreign service on U-Tapao Air Base in Thailand as an aircraft fuel systems specialist and fuel system repairman. See DD Form 214; Military Personnel Record. Although the Veteran contended additional foreign service on an Okinawa airbase (see July 2008 Statement), his Military Personnel Record only shows foreign service in Thailand and does not indicate that he ever had an assignment in Okinawa. In a December 2009 VA Form 9, the Veteran requested a Board hearing. A Board hearing was scheduled for March 2014 and then rescheduled, upon the Veteran’s request, for December 2015; however, the Veteran did not report for the hearing and did not subsequently request another hearing. As such, the Board hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In an April 2016 Decision, the Board, in pertinent part, remanded all issues herein. In a February 2018 Decision, the Board again remanded all issues herein. Service Connection Presumptive service connection may be warranted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), including diabetes mellitus and sensorineural hearing loss, if manifest to at least a compensable degree within one year from separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, if a veteran was exposed to herbicide agents during service, then presumptive service connection may also be established for certain conditions, including diabetes mellitus type II, that becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran’s inability to prevail on a presumptive basis does not foreclose his opportunity to prevail on a direct or secondary basis. Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994). Direct service connection may be warranted if the evidence shows: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Secondary service connection may also be warranted for a current disability that is either proximately caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). Notably, on June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). VA’s duty to assist includes providing a medical examination when necessary to decide a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Such development is necessary if the evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran has contended that his diabetes mellitus type II is etiologically related to: (a) herbicide agent exposure; and/or (b) chemical exposures (JP-4 jet fuel, methyl ethyl ketone, acetone, and trichloromethane). See July 2008 Statements; October 2008 Statement; December 2013 Statement; March 2016 Brief; January 2018 Brief; September 2020 Brief. The Veteran has further contended that his vision condition, hypertension, and erectile dysfunction are secondary to his diabetes mellitus type II. Id. Lastly, the Veteran has contended that his bilateral hearing loss is etiologically related to noise exposure associated with his in-service duties. Id. 1. Entitlement to service connection for diabetes mellitus type II As stated above, the Veteran has contended that his diabetes mellitus type II is etiologically related to: (a) herbicide agent exposure; and/or (b) chemical exposures (JP-4 jet fuel, methyl ethyl ketone, acetone, and trichloromethane). See July 2008 Statements; October 2008 Statement; December 2013 Statement; March 2016 Brief; January 2018 Brief; September 2020 Brief. Service treatment records (STRs) do not indicate any abnormalities (including complaints, treatment, or diagnoses) related to diabetes mellitus type II upon entrance or during service. Notably, in December 2008, the agency of original jurisdiction (AOJ) made a formal finding regarding the unavailability of the service separation examination report. As such, this probative evidence weighs in favor of finding that diabetes mellitus type II was not chronic in service. Further, the probative evidence does not show that diabetes mellitus was diagnosed within one year of discharge. See private treatment records from Dr. BG (earliest diagnosis was in August 2007); San Antonio VAMC records (March 2008 problem list documents onset in November 2007). As such, this probative evidence weighs in favor of finding that diabetes mellitus did not manifest to a compensable degree within one year from discharge; as such, presumptive service connection under 38 C.F.R. § 3.309(a) is precluded. However, the Board finds that the Veteran was at least as likely as not exposed to herbicide agents while stationed on U-Tapao Air Base in Thailand because he reported exposure while living and working close to the perimeter. Further, the Board finds that the Veteran’s diabetes mellitus type II has manifested to a compensable degree. 2. Entitlement to service connection for bilateral hearing loss Impaired hearing is considered a disability for VA purposes when: (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or (b) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or (c) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability; thus, in the absence of proof of a present disability, there can be no valid claim. Brammer, supra; Rabideau, supra. As stated above, the Veteran has contended that his bilateral hearing loss is etiologically related to noise exposure associated with his in-service duties. See July 2008 Statements; October 2008 Statement; December 2013 Statement; March 2016 Brief; January 2018 Brief; September 2020 Brief. Notably, the Board has already conceded noise exposure consistent with the Veteran’s in-service duties. See DD Form 214; Military Personnel Record; STR’s. STR’s and post-separation treatment records do not indicate right-ear hearing loss for VA purposes. See May 2008 VA audiological examination (audiological data showed no hearing loss for VA purposes bilaterally); February 2020 VA audiological examination (audiological data showed sensorineural hearing loss in the bilateral ears, but not to the severity required to be a disability for VA purposes in the right ear). 38 C.F.R. § 3.385. Further, the Board highlights that: (a) the evidence fails to show that the Veteran has the necessary medical background to competently diagnose hearing loss for VA purposes in the right ear because this condition is not lay observable (it is diagnosed after objective, diagnostic testing); (b) the private and VA treatment records currently associated with the claims file lack any competent indication of hearing loss for VA purposes in the right ear; and (c) the Veteran did not submit any etiological opinions from private or VA providers indicating hearing loss for VA purposes in the right ear. As such, this probative evidence weighs in favor of finding that the Veteran does not have right-ear hearing loss for VA purposes. To the extent that the Veteran has asserted his opinion in this matter, the Board finds that the probative evidence discussed above holds greater weight because the Veteran, as a layperson, does not have the expertise and specialized education necessary to diagnose disabilities that are not lay observable. Thus, because the probative evidence weighs in favor of finding that there is no right-ear hearing loss for VA purposes, the claim for entitlement to service connection for right-ear hearing loss is denied. Brammer, supra; Rabideau, supra. On the contrary, the evidence shows that the Veteran has left-ear hearing loss for VA purposes. See STR’s (no indication of left-ear hearing loss for VA purposes); May 2008 VA audiological examination (audiological data showed no hearing loss for VA purposes bilaterally); February 2020 VA audiological examination (audiological data showed sensorineural hearing loss in the bilateral ears, with the left-ear hearing loss rising to the severity considered to be a disability for VA purposes). 38 C.F.R. § 3.385. However, the probative evidence weighs in favor of finding that the left-ear hearing loss was not chronic in service, did not manifest to a compensable degree within one year from separation, and is not otherwise etiologically related to an in-service injury or disease. STRs do not indicate any abnormalities (including complaints, treatment, or diagnoses) related to left-ear hearing loss upon entrance or during service. Notably, in December 2008, the AOJ made a formal finding regarding the unavailability of the service separation examination report. Further, the February 2020 VA examiner noted that (after converting the entrance examination from ASA to ISO/ANSI) there was no significant permanent shift in hearing thresholds beyond test variability from the entrance exam in 1965 to the audiogram conducted post-separation in 2008, which is objective evidence of no permanent auditory damage on active duty from the conceded noise. Further, during the February 2020 VA examination, the Veteran reported hearing loss onset as five years prior. As such, this probative evidence weighs in favor of finding that the left-ear hearing loss was not chronic in service and did not manifest to a compensable degree within one year from separation; as such, presumptive service connection under 38 C.F.R. § 3.309(a) is precluded. Additionally, the probative evidence does not show that the left-ear hearing loss is etiologically related to his service on a direct basis. The February 2020 VA examiner opined that the left-ear hearing loss was less likely than not related to the in-service noise exposure because: (a) there was no significant permanent shift in hearing thresholds beyond test variability from the entrance exam in 1965 to the audiogram conducted post-separation in 2008, which is objective evidence of no permanent auditory damage on active duty from the conceded noise; (b) although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well established, auditory damage and hearing loss are not conceded based on noise alone because there must be a nexus of auditory damage to relate the current hearing loss to the military noise and not another etiology; and (c) although the Veteran denied occupational noise exposure during the February 2020 examination, he reported working post-separation as an “aircraft engine mechanic for 35 years without hearing protection” during the May 2008 VA examination. The Board finds the February 2020 VA examiner’s opinion to be of high probative value because it contained sufficient analysis of the pertinent evidence and supported the conclusion with adequate rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also highlights that: (a) the evidence fails to show that the Veteran has the necessary medical background to competently render an etiological opinion regarding the left-ear hearing loss because this condition is not lay observable (for VA purposes, it is diagnosed after objective, diagnostic testing); (b) the private and VA treatment records currently associated with the claims file lack any competent indication of an etiological relationship between the left-ear hearing loss and the Veteran’s service; and (c) the Veteran did not submit any etiological opinions from private or VA providers regarding this disability. As such, this probative evidence weighs in favor of finding that the Veteran’s left-ear hearing loss was not related to service on a direct basis; as such, direct service connection is not warranted. In sum, the probative evidence weighs in favor of finding that the Veteran does not have hearing loss for VA purposes in his right ear; the probative evidence also weighs in favor of finding that the Veteran has hearing loss for VA purposes in the left ear, but that it was not chronic in service, did not manifest to a compensable degree within one year from separation, and is not otherwise etiologically related to an in-service injury or disease. To the extent that the Veteran has asserted his opinion in this matter, the Board finds that the probative evidence discussed above holds greater weight because the Veteran, as a layperson, does not have the expertise and specialized education necessary to opine regarding disabilities that are not lay observable. Thus, because the probative evidence weighs in favor of finding that the right-ear hearing loss is not a disability for VA purposes and that the left-ear hearing loss is not etiologically related to service, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a vision disorder As stated above, the Veteran has contended that his vision condition, hypertension, and erectile dysfunction are secondary to his diabetes mellitus type II. See July 2008 Statements; October 2008 Statement; December 2013 Statement; March 2016 Brief; January 2018 Brief; September 2020 Brief. Crucially, the Veteran has never been afforded a VA examination or opinion to assess the etiology of this disability, including whether it is secondary to his diabetes mellitus type II, for which the Board has granted service connection herein; further, the Veteran has never been afforded a VA examination to assess the severity of his diabetes mellitus type II, including whether manifestations include a vision condition, hypertension, and erectile dysfunction. However, VA is required to obtain an opinion because the medical evidence currently of record is insufficient to decide the claim (there are no private or VA opinions, the treatment records do not contain etiological conclusions, and the evidence does not show that the Veteran has the medical background necessary to render a competent etiological opinion about conditions that are not lay observable). McLendon, supra; Jandreau, supra; Layno, supra. Notably, VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As such, the Board must remand for further etiological development consistent with the holding in Ward. Ward, supra. 2. Entitlement to service connection for hypertension This issue is remanded for the same reasons discussed above. 3. Entitlement to service connection for erectile dysfunction This issue is remanded for the same reasons discussed above. The matters are REMANDED for the following action: 1. Examine the etiology of the vision condition, including whether it is secondary to the diabetes mellitus type II, for which the Board has granted service connection herein. The opinion must be consistent with the holding in Ward (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation [i.e., aggravation may include temporary worsening of a disability]). Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required. 2. Examine the etiology of the hypertension, including whether it is secondary to the diabetes mellitus type II, for which the Board has granted service connection herein. The opinion must be consistent with the holding in Ward (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation [i.e., aggravation may include temporary worsening of a disability]). Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required. 3. Examine the etiology of the erectile dysfunction, including whether it is secondary to the diabetes mellitus type II, for which the Board has granted service connection herein. The opinion must be consistent with the holding in Ward (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation [i.e., aggravation may include temporary worsening of a disability]). Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required. (Continued on the next page)   4. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.