Citation Nr: 21070592 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-59 631 DATE: November 24, 2021 ORDER Entitlement to service connection for type two diabetes mellitus due to herbicide agent exposure is granted. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for peripheral neuropathy, to include as secondary to type two diabetes mellitus, is remanded. Entitlement to a compensable initial disability rating for bilateral hearing loss is remanded. Entitlement to a compensable initial disability rating for residuals of nose contusion with chronic sinusitis and rhinitis is remanded. FINDING OF FACT The Veteran has a diagnosis of type two diabetes mellitus, and the probative evidence is at least in relative equipoise that the Veteran's military occupational specialty required him to work along or near the perimeter of the Air Force base he served on while in Thailand during the Vietnam War. CONCLUSION OF LAW The criteria for entitlement to service connection for type two diabetes mellitus, as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force on active duty from February 1967 to August 1970. The issues come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing has been included with the record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases associated with herbicide agent exposure in service, including type two diabetes mellitus, are presumed to be service-connected if the disease is manifested to a compensable degree within a time period specified for each disease. 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6) 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(d) are also satisfied. Entitlement to service connection for type two diabetes mellitus due to herbicide agent exposure The Veteran contends that he suffers from type two diabetes mellitus as a result of herbicide agent exposure during his active military service in Thailand. The Veteran asserts while stationed at the Takhli Royal Thai Air Force Base (Takhli RTAFB) he witnessed regular spraying of herbicides along the perimeter-fence line as well as along the flight line. The Veteran asserted that his duties as an aircraft fuel systems mechanic at Takhli RTAFB required him to work in areas within 100 yards of the perimeter fence. Further, the Veteran contends that while on augmentee security detail, he was exposed to herbicide agents sprayed along the perimeter fence. The evidence of record establishes that the Veteran has a diagnosis of type two diabetes mellitus. The Veteran's service personnel records show the Veteran served at Takhli RTAFB, from August 1969 to August 1970. The Veteran's personnel records listed his assignments as aircraft fuel systems mechanic. At the June 2021 Board hearing, the Veteran testified that he worked daily in a hangar near the perimeter fence and along the flight line. The Veteran reported witnessing spraying along the perimeter and flight line, and noted the grass and vegetation looked brown and dead. Additionally, the Veteran recalled leaving the base daily, which required the Veteran to spend time at the fence line coming and going. Moreover, the Veteran testified that he was assigned temporary augmentee duty involving security patrol duties. The Veteran reported that as an augmentee guard he regularly patrolled the perimeter fence line and was assigned to a radar post on a hill that was sprayed and cleared of foliage. During the hearing, the Veteran presented pictures that showed the Veteran on guard duty, as well as pictures showing the location of the hangars in relation to the perimeter fencing. The Veteran submitted lay statements from airmen who served with the Veteran at Takhli RTAFB. The Veteran submitted a statement from September 2015 from an airman who worked in the same duty section. The airman reported he was able to see herbicide sprayed around the hangar where they worked. The September 2015 statement also noted the Veteran performed augmentee duty with the security police. The airman noted the security duty involved 12 hour shifts at the perimeter of the base. The Veteran submitted a statement in March 2014 from a fellow airman who served at Takhli RTAFB with the Veteran. The airman noted the Veteran was selected to perform augmentee guard duty. The airman also recalled the area around the perimeter, flight line, and communications tower was clear of vegetation due to defoliant use. VA has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. Herbicide exposure may be established on a direct facts-found basis if the veteran served with the United States Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases, including Takhli RTAFB, and as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). While the evidence of record does not definitively confirm the Veteran's exposure to herbicide agents, the Board acknowledges the Veteran's credible lay statements establish the Veteran worked along the perimeter of Takhli RTAFB likely sprayed with tactical and commercial herbicides. Additionally, the Veteran's testimony and the competent lay statements of the Veteran's fellow airman who served at Takhli RTAFB establish that the Veteran performed temporary security duties placing him in areas reported to be sprayed with herbicide agents. Thus, resolving all reasonable doubt in favor of the Veteran, the Board establishes that the Veteran was exposed to herbicide agents during his active service. 38 C.F.R. § 3.102. The evidence of record establishes that the Veteran had qualifying service at Takhli RTAFB, where herbicide agents were determined on a facts-found basis to have been sprayed. The Veteran's post-service medical evidence shows that the Veteran has a diagnosis of type two diabetes mellitus. Type two diabetes is listed as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Accordingly, the Board finds that the evidence of record satisfies the presumptive service connection criteria of 38 C.F.R. § 3.309(e), and the claim of service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. The Veteran contends that his diagnosis of hypertension is related to herbicide exposure during his service at Takhli RTAFB. As established above, the Veteran is presumed to have been exposed to herbicide agents during his tour of duty at Takhli RTAFB. Currently, hypertension is not listed as a presumptive disease entitled to service connection due to herbicide exposure. 38 C.F.R. § 3.309(e). Thus, presumptive service connection for hypertension is not warranted. Presumptions notwithstanding, the Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent 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). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). The Board finds the evidence of record indicates the Veteran has a medical history of hypertension and established herbicide agent exposure. As VA has not afforded the Veteran an examination to address his claim of direct service connection for hypertension, the Board finds that a remand is required to obtain a medical opinion addressing the nature and etiology of the Veteran's hypertension, to include as a result of established herbicide agent exposure. McLendon, 20 Vet. App. 83-86. 2. Entitlement to service connection for peripheral neuropathy, to include as secondary to type two diabetes mellitus, is remanded. The Veteran contends that he suffers from peripheral neuropathy associated with his active-duty service at Takhli RTAFB, to include as secondary to his diagnosis of type two diabetes mellitus. The issue of entitlement to service connection for peripheral neuropathy secondary to type two diabetes mellitus is remanded to provide the Veteran a VA examination addressing the etiology of his peripheral neuropathy secondary to type two diabetes mellitus. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As the Veteran's May 2014 VA medical treatment record demonstrates the Veteran complained of numbness and tingling in his feet associated with his diagnosis of type two diabetes mellitus, the Board finds the evidence of record meets the low threshold criteria linking the Veteran's current disability and his active service, so as to require a VA medical examination. Locklear, 20 Vet. App. at 419; McLendon, 20 Vet. App. at 83. Given the above, the Board finds that a remand is required in order to obtain an examination with an opinion on the etiology of the claimed condition. McLendon, 20 Vet. App. at 83. 3. Entitlement to a compensable initial disability rating for bilateral hearing loss is remanded. 4. Entitlement to a compensable initial disability rating for residuals of nose contusion with chronic sinusitis and rhinitis is remanded. The May 2013 rating decision, which denied service connection for type two diabetes mellitus, hypertension, and neuropathy, also granted service connection for residuals of a nose contusion with chronic sinusitis and rhinitis (nasal condition) with a noncompensable disability rating effective March 30, 2011 and bilateral hearing loss with a noncompensable evaluation effective March 30, 2011. In the Veteran's May 2014 Notice of Disagreement, the Veteran indicated that he disagreed with the noncompensable evaluations for his service-connected nasal condition and bilateral hearing loss. Despite the Veteran's disagreement with the noncompensable disability ratings assigned to his service-connected nasal condition and bilateral hearing loss in the May 2013 rating decision, the RO addressed only the issues of service connection for type two diabetes mellitus, hypertension, and neuropathy in the October 2017 Statement of the Case. The agency of original jurisdiction (AOJ) has not yet issued a Statement of the Case for the remaining increased rating claims for the Veteran's nasal condition and bilateral hearing loss. A remand is required for the AOJ to issue a Statement of the Case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's claimed hypertension. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset during or is otherwise etiologically related to active-duty service, to include as due to established exposure to herbicide agents. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's claimed peripheral neuropathy. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The record and a copy of this Remand must be made available to the examiner. Following a review of the evidence of record, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) the Veteran's claimed peripheral neuropathy, was proximately caused by, or the result of, the Veteran's service-connected type two diabetes mellitus. b) Whether it is at least as likely as not (50 percent probability or more) the Veteran's claimed peripheral neuropathy, was aggravated by the Veteran's service-connected type two diabetes mellitus. If secondary service connection is not found, please provide a medical opinion as to: c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's peripheral neuropathy had its onset during or is otherwise etiologically related to active-duty service, to include as due to established exposure to herbicide agents. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 3. Send the Veteran and his representative a Statement of the Case that addresses the issues of entitlement to compensable initial disability ratings for bilateral hearing loss and residuals of nose contusion with sinusitis and rhinitis. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be further developed and returned to the Board for appellate consideration. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.