Citation Nr: 21070624 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-15 084 DATE: November 24, 2021 ORDER Service connection for diabetes mellitus, type II, is granted on a presumptive basis, due to herbicide agent exposure in Thailand. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The evidence is in equipoise on whether the Veteran's active service job duties put him in regular contact with the base perimeter at the Air Force base of U-Tapao during active service in Thailand, and as such, his diabetes mellitus type II, is presumptively related to his in-service herbicide exposure. 2. The Veteran's bilateral hearing loss is not etiologically related to service. 3. The Veteran's tinnitus is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 1151, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from March 1962 to September 1986, including service in Thailand. The Veteran's decorations include the Air Force Commendation Medal, the Air Force Longevity Service Award Ribbon and the Vietnam Service Medal. The Veteran testified before the undersigned at a Board hearing held in January 2021; a transcript of that hearing is of record. In March 2021, the Board remanded the issues of service connection for bilateral hearing loss and service connection for tinnitus to obtain new VA examinations opinions to assess the current severity of the Veteran's hearing loss, determine whether it constitutes a disability as defined by VA regulations, and to obtain medical nexus opinions. The Board also remanded the issue of service connection for diabetes mellitus to obtain a new VA examination and opinion because the previous VA examination in October 2015 did not provide a direct service connection opinion. In June 2021 and August 2021 the Veteran was afforded new VA examinations and provided VA medical opinions on the issues on appeal. Therefore, the Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Service connection for diabetes mellitus type II, to include as due to herbicide agent exposure in Thailand. After a full review of the record, including the service treatment records (STRs), as well as statements by the Veteran, the Board finds that the evidence is in equipoise on whether service connection for diabetes mellitus, to include as due to herbicide agent exposure in Thailand, is warranted. Presumptive service connection is available for specific diseases associated with exposure to herbicide agents listed under 38 C.F.R. § 3.309 (e) if the disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (2018). Diabetes mellitus is presumptively associated with exposure to herbicide agents. Id. There is no presumption of exposure to herbicides based on service in Thailand. In certain circumstances, the VA will concede exposure to herbicide agents for veterans stationed in Thailand during the Vietnam era. If a Veteran was stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang during the Vietnam Era, VA will concede exposure on a direct or fact found basis if the Veteran served as an Air Force security policeman, security patrol dog handler, member of a security police squadron; or was otherwise shown by evidence of daily work duties, performance, or evaluation reports to have served near the base perimeter. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. VA has determined that there was the use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes. This allows for presumptive service connection of the diseases associated with herbicide exposure. Here, STRs confirm active service in Thailand from January 1972 to January 1973, including working on the flight lines at the Air Force base of U-Tapao. The Veteran contends that he was exposed to Agent Orange during his service in Thailand during the period of the Vietnam War. At the January 2021 Board hearing, the Veteran testified that, as a jet engine technician, he worked in close proximity to the perimeter at the Air Force base of U-Tapao where he was exposed to Agent Orange. In April 2018, the Veteran submitted a statement indicating that sometimes the smoke at the perimeter fence at U-Tapao would be so thick that they would have to close the jet engine building doors facing the perimeter so the Veteran wouldn't have to breath in Agent Orange. Additionally, in regard to the Veteran's diabetes mellitus, the Veteran testified that he began noticing symptoms in service around 1976, such as blisters on his feet, ankles and legs. The Board notes that the Veteran was diagnosed with diabetes mellitus in 1997. In October 2021, the Veteran's representative, stated the Veteran's job duties during active service in Thailand at the Air Force base of U-Tapao would have placed the Veteran within the 500-meter buffer distance from the perimeter at the base. See October 2021 Appellate Brief. In sum, the Veteran's lay statements and hearing testimony indicating his close proximity to the perimeter, evident from his assertions of breathing in Agent Orange, is most probative to a finding that the Veteran was regularly near the perimeter and exposed to herbicide agents. Based on the evidence presented, the Board finds that the Veteran having served in Thailand with duties placing him at or near the base perimeter at the Air Force base of U-Tapao in Thailand, exposure to herbicides is established on a facts-found basis. The Veteran has consistently held that his duties put him at or near the perimeter of the base. He credibly and competently testified to this fact during his January 2021 Board hearing. Absent probative evidence to the contrary, the Board does not doubt his credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (competency of the claimant to report observable events from service, were found credible). The Board resolves all reasonable doubt in favor of the Veteran. Accordingly, service connection is warranted for diabetes mellitus, on a presumptive basis. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2018). 2. Service connection for bilateral loss. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. In November 2017, the Veteran was afforded a VA audiological examination, which reflected the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 30 25 LEFT 10 10 25 30 30 The Veteran's speech recognition score using the Maryland CNC Test was 100 percent in the right ear and 96 percent in the left ear. The Board notes that the November 2017 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. However, the Board notes that the audiological evaluation does not show a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. In June 2021, the Veteran was afforded another VA audiological examination, which reflected the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 20 15 LEFT 10 15 25 20 20 The Veteran's speech recognition score using the Maryland CNC Test was 94 percent in the right ear and 94 percent in the left ear. The June 2021 VA examiner concluded that the Veteran did not have a hearing loss disability. The Board does note that the Veteran had two audiological readings above 20 decibels, and thus experiences some degree of hearing loss. Thus, a current disability of hearing loss as recognized by VA regulations is not present in the left or right ear. Accordingly, in the absence of a current disability in either ear, the Board finds that service connection cannot be established. 38 C.F.R. § 3.385; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The most probative evidence of record, as discussed above, reflects the Veteran has not been shown to have a current disorder of hearing loss in either ear for VA purposes at any time since separation. See 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Therefore, a preponderance of the evidence of record is against the Veteran's claim for service connection for bilateral hearing loss. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 3. Service connection for tinnitus. The Veteran contends that his tinnitus symptoms began during active service while he was working on the flight line and have continued ever since. See January 2021 Board hearing. First, the Board notes that the Veteran has been diagnosed with tinnitus and as stated above, in-service exposure to loud noise has been established. Thus, the final question is whether there is a nexus between the Veteran's tinnitus and the acoustic trauma in service. The Board finds that after review of all of the evidence, lay and medical, the preponderance of the evidence is against the claim and that service-connection for tinnitus is not warranted. The Veteran has been provided two medical opinions for his hearing loss and tinnitus: a November 2017 VA medical opinion and a June 2021 VA medical opinion. The November 2017 VA examiner opined that the Veteran's tinnitus was not related to active service. The VA examiner noted that the Veteran reported first noticing his tinnitus two to three years prior to the examination. The VA examiner acknowledged that the claims folder was reviewed and indicated that "while there are numerous possible causes of tinnitus, an audiologist can only address the etiology of tinnitus as it relates to auditory system injuries. Without evidence of an objectively verifiable noise injury (hearing loss, significant hearing threshold shift, or other objective evidence of acoustic trauma), the association between claimed tinnitus and noise exposure does not exist." See November 2017 VA medical opinion. In June 2021, a VA medical opinion also concluded that the Veteran's tinnitus was not related to service. The VA examiner commented on the Veteran's MOS of being a jet engine technician and how that MOS is listed for a high potential for hazardous noise. The VA examiner also discussed the Veteran's reported exposure to jet engines, general noise from the flight line, noise from the test block, and small arms. Further, the VA examiner noted that the Veteran made no complaints of any symptoms for tinnitus during active service or within a year of separating. The VA examiner concluded that the Veteran's tinnitus did not begin during active service. In sum, both opinions provided a negative medical nexus, Although the November 2017 VA medical opinion does not account for the Veteran's lay statements, the subsequent June 2021 VA examiner appropriately addressed all of the March 2021 Board remand directives, including discussing and commenting on the Veteran's January 2021 Board hearing testimony that his tinnitus began during active service. As such, the June 2021 VA examiner's opinion is given great probative value. Significantly, there is no conflicting medical evidence that states the Veteran's tinnitus is related to service. The Veteran has made a general assertion that his tinnitus is related to noise exposure in service. The Veteran lay statements of record regarding his observable symptoms, such as tinnitus, are probative evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, to the extent that the Veteran asserts that tinnitus manifested during active service, within one year of service discharge, or continuously since active service, such statements are less probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board has considered the Veteran's lay contentions, specifically those provided during the January 2021 Board hearing that he began noticing tinnitus symptoms during active service. However, his statements have been inconsistent over the years. He denied any history of ear trouble at the time of his separation from service and the May 1986 retirement examination described the ears as normal. During an October 2009 VA treatment visit he denied any tinnitus. As noted in the 2017 examination the Veteran reported only a 2-3 year history of tinnitus. As such, the Board finds the Veteran's statements probative with regard to establishing his current symptoms, but finds little probative value with regard to establishing service connection. (Continued on the next page) Therefore, a preponderance of the evidence of record is against the Veteran's claim for service connection for tinnitus. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.