Citation Nr: 21065938 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-09 916 DATE: October 28, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, as due to the Veteran's conceded Agent Orange exposure is granted. REMANDED Entitlement to a compensable disability rating for the Veteran's bilateral hearing loss is remanded. FINDING OF FACT The Veteran's type II diabetes mellitus is presumptively related to his Agent Orange exposure. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for diabetes mellitus, type II, as due to the Veteran's conceded Agent Orange exposure have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. Type II Diabetes Mellitus is among the diseases specified. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Diabetes Mellitus The Veteran seeks service connection for type II diabetes mellitus which he contends was caused by his in-service exposure to the herbicide colloquially referred to as Agent Orange. The medical evidence submitted by the Veteran confirms that he has a diagnosis of type II diabetes mellitus, and that it had manifested to a compensable degree. Specifically, the Board notes an October 2021 private treatment record which indicated the Veteran was diagnosed with type II diabetes mellitus. As noted above, this condition shall be presumed to have been caused by service if a veteran was exposed to herbicides. The Veteran had boots on the ground service in Vietnam, therefore Agent Orange exposure is conceded. The RO has made favorable findings conceding as much. Therefore, the Veteran's claim for service-connection for type II diabetes mellitus must be granted. In sum, the evidence of record demonstrates the Veteran served boots on the ground in Vietnam, has conceded in-service herbicide exposure, and he was diagnosed with type II diabetes mellitus that manifest to a compensable degree following his discharge from service. Therefore, service connection is warranted for the Veteran's type II diabetes mellitus on a presumptive basis. REASONS FOR REMAND Bilateral Hearing Loss The Board notes that the last VA examination in connection with the Veteran's service-connected bilateral hearing loss disability was conducted over 6 years ago in April 2015. The Veteran has testified in his October 2021 Board hearing that his hearing loss disability has worsened since this last examination. Given the length of time since the last examination, and the potential worsening of the Veteran's claimed conditions, a remand is warranted for a contemporaneous examination. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination, with a qualified audiologist, to determine the current nature and severity of his bilateral hearing loss. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.