Citation Nr: 21074891 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-22 645 DATE: December 16, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for diabetes mellitus type 2, to include as due to Agent Orange exposure, is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his left ear hearing loss is the result of military noise exposure during his active-duty service. 2. The weight of the evidence supports a finding that the Veteran began experiencing ringing in his ears while in service, and he has continued to experience them since separating from service. 3. The Veteran has a diagnosis of diabetes mellitus which is presumed to be related to his in-service herbicide exposure during his active military service in Thailand. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for diabetes mellitus, type II, as a result of exposure to herbicides have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to June 1974. In June 2021, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for left ear hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. Service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Moreover, to establish service connection for sensorineural hearing loss, the Veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Turning to direct service connection, in the June 2021 hearing, the Veteran reported being exposed to high decibel noise as a crew chief in the Air Force. The Veteran stated that one of his duties was to ready aircraft for takeoff by starting the engines. The Veteran noted that he had to be positioned right under the aircraft to have access to the tubes underneath the engines. The Veteran argued that this noise exposure aggravated and accelerated the hearing loss process and resulted in tinnitus. The June 1974 separation examination report indicated that the Veteran suffered from some hearing loss. The Veteran also stated during the separation examination that he believed he suffered from hearing loss as he often had to ask people to repeat themselves when speaking. The Veteran was privately evaluated for bilateral hearing loss in May 2014. It was noted that he had decreased hearing and tinnitus. Speech discrimination was 100 percent in both ears. The physician noted sensorineural hearing loss at 3000 and 4000 hertz. The Veteran was provided with a VA examination in October 2014 to evaluate his bilateral hearing loss and tinnitus. The examination indicated that the Veteran had hearing loss for VA purposes in the left ear only. The examiner determined that this condition was less likely than not related to service. The examiner noted that the Veteran's hearing was within normal thresholds at enlistment and at separation and did not shift significantly in service. The examiner then determined that the Veteran's tinnitus was less likely than not related to service and provided the same rationale as above. The Veteran submitted a private audiological opinion in February 2017. The physician noted that the Veteran's tinnitus had persisted since leaving service and had worsened over the last 12 years. It was also noted that the Veteran often asked people to repeat themselves as speech was perceived as muffled and dull. The physician found that there was a history of military noise exposure. He noted that present audiometric findings indicated mild high frequency sensorineural hearing loss. The physician determined that based on the configuration of his hearing loss and the history of noise exposure, it was at least as likely as not that the Veteran's hearing loss and tinnitus were due to service. The clinical results of the audiological examinations demonstrate that the Veteran has bilateral hearing loss for VA purposes in the left ear. 38 C.F.R. § 3.385. The evidence also demonstrates a present disability of tinnitus; thus, the first requirement for the establishment of service connection is established for both claims. The Veteran has described the noise exposure he experienced in service. The Board finds no reason to question his account of exposure from noise resulting from being in close proximity to military aircraft. Thus, exposure to acoustic trauma is conceded. The Board also finds that the evidence indicates that the Veteran's left ear hearing loss and tinnitus are at least as likely as not due to service. Although the October 2014 VA examiner found that the Veteran's hearing loss and tinnitus were not due to service, the physician from the February 2017 opinion found that there was nexus between the conditions and the Veteran's service. Furthermore, the Veteran exhibited some hearing loss in his separation examination and the Veteran even reported trouble with his hearing at separation. The Veteran has credibly reported noise exposure, a currently diagnosed bilateral hearing loss disability for VA benefit purposes is present, there is competent and credible testimony indicating ongoing hearing problems since service, and a positive private opinion of record. As such, all reasonable doubt is resolved in the Veteran's favor, and service connection for bilateral hearing loss is granted. As regards the claim for tinnitus, a lay person is competent to describe his symptoms of ringing in the ears throughout the years. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Further, the Board finds that the Veteran's account of ringing in his ears from service to the present to be credible. Resolving all doubt in favor of the Veteran, service connection for tinnitus is also warranted. 3. Entitlement to service connection for diabetes mellitus type 2 to include as due to Agent Orange exposure is granted. The Veteran contends his diabetes is the result of exposure to herbicides while he was stationed in Udorn Airforce Base, Thailand, during the Vietnam Era. In a privately completed April 2014 disability benefits questionnaire, the Veteran was diagnosed with diabetes mellitus. 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; 38 C.F.R. § 3.303. A Veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include prostate cancer and diabetes) to a degree of 10 percent or more at any time after service, he is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. §§ 3.307, 3.309(e). Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange (AO), unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6)(iii). Certain listed medical conditions, including diabetes mellitus, may be granted service connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309(e). The Department of Defense has also confirmed that herbicides were used in Thailand during the Vietnam Era. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air bases perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. The Veteran's service treatment records confirm his presence at Udorn Airforce Base, Thailand, in 1973. His DD 214 reflects he served as an Aircraft Maintenance Specialist. In the June 2021 hearing, the Veteran stated that he would often have to ride a bus from the barracks on one side of the runway to the other where he reported for duty. He noted that the bus would go around the perimeter and that often times the bus would breakdown forcing the soldiers to walk the rest of the perimeter to the duty station. The Veteran also noted that he and his peers would often walk across the perimeter of the base in order to go into town. In support of his claim, the Veteran submitted a presentation about Udorn Airforce Base that had been completed by a Veteran with a similar MOS who had also been stationed at Udorn during a similar time period. This presentation included maps of Udorn, which showed the location of the barracks and the bus route that circled the perimeter of the base. The presentation also included pictures of Udorn before and after defoliation, reportedly with the use of herbicides. The Board finds the Veteran to be both competent and credible in detailing his experiences in Thailand, and how he may have been exposed to herbicide agents, to include Agent Orange. He has been consistent throughout the period on appeal regarding his potential for exposure to herbicides, and his statements are consistent with the other evidence of record. The Board notes that the RO attempted to verify the Veteran's herbicide exposure. A June 2015 Joint Services Records Research Center (JSRRC) Memorandum included a formal finding stating that the file lacked information to corroborate exposure to Agent Orange. However, the Board is ultimately persuaded by the Veteran's competent and credible testimony describing his in-service experiences. Despite the fact that there is no clear evidence of herbicide exposure due to his Thailand service shown in the record, the Veteran has been consistent in his reports about potential exposure to herbicides from working and living near the perimeter at Udorn. His statements are consistent with the circumstances and conditions of his service in Thailand during the Vietnam era. 38 U.S.C. § 1154. Therefore, based on the Veteran's credible assertions, the Board finds that the Veteran was at least as likely as not exposed to herbicides and thus, service connection for diabetes mellitus, type II is warranted on a presumptive basis. The Board stresses that this determination was made on a facts-found basis. Put differently, the specific facts of this case, coupled with the credible evidence of record provided by the Veteran, establish that the Veteran at least as likely as not served on or near the perimeter of the Udorn Air Force Base in Thailand. Therefore, when resolving all reasonable doubt in his favor, service connection for diabetes mellitus, type II is warranted on a presumptive basis. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Board finds that remand is required for a VA examination. The Veteran was most recently afforded a VA examination for hearing loss in October 2014. At that time, the examiner opined that the Veteran had some sensorineural hearing loss in both ears. However, although the October 2014 VA examination may have documented that the Veteran had some level of bilateral hearing loss, the results of his audiological examination did not document that he had a current hearing loss disability for VA purposes in the right ear. See 38 C.F.R. § 3.385. The Veteran subsequently testified that his hearing has been getting worse. Therefore, the Board finds that a new VA examination is warranted to determine if the Veteran meets the criteria for a hearing loss disability as defined by VA regulation in the right ear. The matters are REMANDED for the following action: 1. Schedule the Veteran for an audiological evaluation to determine whether he has hearing loss for VA purposes in the right ear pursuant to 38 C.F.R. § 3.385. As there is a positive nexus already of record, an additional medical opinion is not necessary. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.