Citation Nr: 21076478 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-19 529 DATE: December 23, 2021 ORDER Service connection for type II diabetes mellitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran had active service at the Korat Royal Thai Air Force Base (RTAFB) in Thailand during the Vietnam Era. 2. The Veteran's military occupational specialty (MOS) as an electrical power production specialist during his service at Korat RTAFB caused him to perform duties on or near the base perimeter. 3. The Veteran was exposed to herbicide agents during his active service at Korat RTAFB in Thailand during the Vietnam Era. 4. The Veteran has a current diagnosis of type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1972 to June 1976 in the U.S. Air Force. These matters come before the Board of Veterans' Appeal (Board) on appeal from May 2013 and March 2018 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. On January 31, 2013, the Veteran filed a claim of entitlement to service connection for diabetes mellitus. The claim for service connection for diabetes mellitus was previously considered and denied in a May 2013 rating decision. The evidence cited in the May 2013 rating decision includes service treatment records but not service personnel records. Furthermore, a March 2013 PIES request reply also noted that personnel file documents were not available. While this would normally require the Board to consider the threshold step of whether the Veteran had submitted new and material evidence to reopen the claim, in the present case, service personnel records from the Veteran's period of active duty have been associated with the claims file since the May 2013 decision. Significantly, these records include performance reports of the Veteran's duties as an electrical power production specialist at Korat RTAFB. Under 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim additional relevant official service department records are received that existed and had not been associated with the claims file when VA first decided the claim, the claim will be reconsidered notwithstanding the provisions of 38 C.F.R. § 3.156(a). See 38 C.F.R. § 3.156(c). Accordingly, the threshold step of whether new and material evidence had been submitted is not for application in this case. The Board will thereby consider whether service connection for diabetes mellitus is warranted on the merits, without addressing any threshold issue of whether new and material evidence has been received to reopen the claim. See 38 C.F.R. § 3.156(c). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that he was exposed to herbicide agents while stationed at Korat Royal Thai Air Force Base, Thailand, and that this exposure resulted in his development of type II diabetes mellitus. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Type II diabetes mellitus is listed as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Initially, the Board notes that post-service medical treatment records document diagnoses and treatment of type II diabetes mellitus. As noted, the Veteran alleges that he was exposed to herbicide agents while stationed in Thailand. Current VA policy provides for special consideration of herbicide exposure on a facts-found or direct basis for veterans whose duties placed them on or near the perimeters of certain designated RTAFBs during the Vietnam Era. Specifically, if a veteran served in the United States Air Force during the Vietnam Era at a specified RTAFB, including Korat, and was involved with base perimeter security, or his duties otherwise placed him near the air base perimeter as shown by evidence of daily work duties, performance evaluations or other credible evidence, then herbicide exposure is conceded. The record reflects that the Veteran had foreign service at Korat, Thailand from June 1974 to September 1975. Service personnel records, including a DD Form 214 and Airman Performance Reports, document that the Veteran's MOS was electrical power production specialist. The Veteran's November 2016, March 2018, January 2019, October 2019, and January 2020 correspondence, August 2021 Board hearing testimony and personnel records reflect that his duties required him to maintain, operate, and inspect the uninterrupted power supply systems. The Veteran maintains that these duties required him to coordinate with the communications squadron which was located off Korat RTAFB and walk near or across the perimeter every day. He also stated that the barracks were also closed to the perimeter. The Defense Personnel Records Information Retrieval System (DPRIS) received a response in May 2017 that states that JSRRC reviewed a copy of U.S. Air Force Historical Research Agency memorandum for the Department of Veterans Affairs dated August 11, 2015, that the memorandum pertains to the USAF installations operating in Thailand from 1963 through 1976 and concludes that "no documentation or evidence has been found in the holdings of the Historical Research Agency showing that tactical herbicides, such as Agent Orange, were ever used on any USAF installation in Thailand for vegetation control during the Vietnam era." The Board finds that this memorandum is in direct contradiction with VA policy. The Board finds that the evidence of record clearly establishes that the Veteran served at one of the designated Thailand air bases (i.e. Korat). The Veteran also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. The Board finds the Veteran's description of his duties and accompanying service personnel records to be competent and credible evidence of the nature of the Veteran's service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Although there is evidence in the record suggesting that the Veteran was not exposed to herbicide agents during his service in Thailand, the Board resolves all doubt in the Veteran's favor and finds that he was exposed to herbicide agents during his active service at Korat RTAFB in Thailand. 38 C.F.R. § 3.102. The contradictory evidence did not take into account the Veteran's specific description of his duties and observations of the locations of where he performed his duties. Resolving all doubt in the Veteran's favor, and based on the facts found, the Board has determined that the Veteran was exposed to herbicide agents, to include Agent Orange, during active service in Thailand. 38 C.F.R. § 3.102. In addition, the evidence shows that the Veteran is diagnosed with type II diabetes mellitus. Finally, the Veteran's type II diabetes mellitus is presumed to have been caused by his conceded herbicide exposure. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As such, the Board concludes that service connection for type II diabetes mellitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA audiological examination in February 2018. At the examination, the Veteran reported that he worked 12-hour shifts in power production and was exposed noise from power houses and electric motor driven generators. He also reported that he worked on the flight line maintaining aircraft arresting carriers when he was based at Shaw Air Force Base. The Veteran also stated that when he was stationed in Thailand, he was exposed to noise from F4's and A7's which flew overhead and dropped dummy bombs for practice. The Veteran denied the use of hearing protection during service. The Veteran also endorsed post-service jobs as a welder and in auto body repair without use of hearing protection. In rendering a negative nexus opinion for service connection for bilateral hearing loss and tinnitus, the VA examiner explained that the Veteran's separation audiogram, when compared to his enlistment audiogram, showed no significant threshold shifts. She also determined that the Veteran an extensive history of noise exposure following military service. However, the Veteran was afforded another VA audiological examination in December 2019 for tinnitus only. In rendering a positive nexus opinion, the VA examiner explained that the Veteran's MOS carried a high probability of being exposed to hazardous noise levels and that exposure to loud levels of noise can cause damage to the inner hair cells of the cochlea which in turn can cause tinnitus. Given the above, and in light of a recent decision of the Court, the Board finds that remand is necessary. See McCray v. Wilkie, 31 Vet. App. 243 (2019). This Court decision highlighted the contradictory findings regarding delayed-onset hearing loss in the IOM report. Specifically, the VA medical opinion in McCray noted that the IOM report concluded, in part, that there is no sufficient scientific basis for the existence of delayed-onset hearing loss. However, the IOM report also indicates that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." Any future opinion predicated on the IOM reports' findings regarding delayed onset hearing loss must address these inconsistencies. Id. On remand, the RO must obtain a new VA medical opinion to address the above noted discrepancies, to include the Veteran's theory of delayed-onset hearing loss. The matters are REMANDED for the following actions: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the onset of his hearing loss symptoms, to include whether he began to experience diminished hearing during service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After completing the above action, schedule the Veteran for a VA hearing loss examination with an otolaryngologist or another suitably qualified VA medical professional to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. The clinician should consider values converted from ASA to ISO-ANSI units for the in-service audiograms. Following a review of the record, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current bilateral hearing loss and/or tinnitus is related to his period of active duty, to include his in-service noise exposure, or that a hearing loss disability manifested within a year of his separation from service. (b.) Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. (c.) Please specifically discuss (1) the Veteran's credible reports of in-service exposure to the noise of aircraft, including jet engines, while working near the flight line and (2) his descriptions of the nature and extent of his in-service and post-service noise exposure. (d.) In formulating a medical opinion, if relying to any extent upon the IOM study noted above, the examiner must (a) identify the medical text's qualifying or contradictory aspects; and (b) explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset bilateral hearing loss and/or tinnitus is at least as likely as not etiologically related to in-service noise exposure. A complete rationale is required. (e.) Please also discuss the impact of the Veteran's in-service acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as not that his bilateral hearing loss and/or tinnitus occurred sooner or progressed to a greater degree of severity than it otherwise would have, as a result of his in-service acoustic trauma. (f.) Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. A discussion of the underlying reasons for your opinion must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. (g.) If it is not possible to provide the requested opinion without resorting to speculation, please state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts); in the record (additional facts are required); or in your own knowledge or training. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.