Citation Nr: 21006498 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-30 861 DATE: February 4, 2021 ORDER New and material evidence has been received to reopen the claim of service connection for a hearing disability, to include hearing loss and tinnitus. Entitlement to bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to presumptive service connection for Parkinson’s Disease due to herbicide agent exposure is granted. FINDINGS OF FACT 1. In a July 2007 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for hearing loss and tinnitus. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the July 2007 rating decision, to include the September 2017 VA examination diagnosing bilateral hearing loss and tinnitus and the Veteran’s December 2020 testimony that he was exposed to hazardous noise in-service resulting in continuous ringing in his ears is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claims of service connection for bilateral hearing loss and tinnitus. 3. The Veteran’s bilateral hearing loss had its onset in service. 4. The Veteran’s tinnitus had its onset in service. 5. The Veteran had service in Thailand during the Vietnam era. 6. The Veteran was exposed to herbicide agents in Thailand. 7. The Veteran’s Parkinson’s Disease is presumed to be due to the Veteran’s exposure to herbicide agents in Thailand. 8. The presumption that the Veteran’s Parkinson’s Disease was incurred by in-service exposure to herbicide agents is not rebutted. CONCLUSIONS OF LAW 1. The July 2007 rating decision that denied the claim of entitlement to service connection for hearing loss and tinnitus is final. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for hearing disability, to include hearing loss and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 4. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for Parkinson’s Disease are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1993, including service in Thailand during the Vietnam War and in Southwest Asia during the Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2016 and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned. The Veteran’s claim for a hearing disability has been broadened and recharacterized as above to include hearing loss and tinnitus. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a hearing disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO denied the Veteran’s claim for service connection for a hearing disability, to include bilateral hearing loss and tinnitus, in a July 2007 rating decision for lack of a nexus. The Veteran did not appeal this decision and new and material evidence was not received within one year of its issuance. Thus, the July 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the July 2007 rating decision constitutes new and material evidence as to the Veteran’s hearing disability claim. Specifically, in December 2020, the Veteran testified that he first began to experience ringing in his ears while he was still on active duty and that it has continued to the present. See December 2020 Board Hearing Transcript at 5-6. The September 2017 VA examiner diagnosed the Veteran with hearing loss and opined that it was proximately due to the Veteran’s in-service acoustic trauma. This evidence is new as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for a hearing disability and the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Certain chronic diseases, including tinnitus, which are listed in 38 C.F.R. § 3.309(a) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). VA laws and regulations also provide that, if a veteran was exposed to herbicide agents during service, certain listed diseases, including Parkinson’s disease, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). To qualify for entitlement to service connection on a presumptive basis under 38 C.F.R. § 3.307, the disability must generally become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). In this context, the term “herbicide agent” is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). 2. Entitlement to service connection for bilateral hearing loss is granted. 3. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his tinnitus had its onset towards the end of his active duty service and that his bilateral hearing loss is the result of his conceded exposure to loud aircraft taking off and landing. See September 2017 Veteran lay statement, December 2020 Board Hearing Transcript at 4-5, DD Form 214. The Board agrees. Regarding element one of service connection, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. See September 2017 VA examination; 38 C.F.R. § 3.385. The Veteran also has a current diagnosis of tinnitus, although one is not necessary, as he is competent to report the presence of ringing in his ears. See June 2012 VA treatment records, September 2017 VA examination report, February 2018 private audiogram; Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the first element of service connection is established with respect to bilateral hearing loss and tinnitus. Regarding element two of service connection, the Veteran’s military occupation specialty (MOS) was that of a jet mechanic and maintenance scheduling technician that required his presence along flight lines on a consistent basis over the course of his 24 years of active duty. 38 U.S.C. § 1154(a); DD Form 214. Thus, the Board finds the Veteran experienced acoustic trauma throughout his active duty service and element two of service connection is met. Regarding a nexus for bilateral hearing loss, the September 2017 VA examiner opined that as the Veteran’s in-service audiograms established a significant in-service shift, that it was at least as likely as not that his current bilateral hearing loss was due to the conceded in-service noise exposure. Accordingly, element three of service connection for bilateral hearing loss is met. Regarding a nexus for tinnitus, there is evidence both against and in favor of the Veteran’s claim. Against the claim is the September 2017 VA examiner’s opinion. In denying the Veteran’s tinnitus was related to the Veteran’s active duty acoustic trauma, the examiner opined that the Veteran’s report that his tinnitus had its onset within the last 15 years would require the examiner to speculate as to an association between the Veteran’s current tinnitus and his conceded military noise exposure. However, the Board notes that the examiner failed to discuss whether the Veteran’s hearing loss, service-connected in this decision, was the proximate cause of the Veteran’s tinnitus and is accordingly of little probative value. In favor of the claim is the Veteran’s testimony that his tinnitus had its onset while he was on active duty and continued to the present. See December 2020 Board Hearing Transcript at 5-6. The Veteran also testified that he was confused by the September 2017 VA examiner’s question about the onset of tinnitus and clarified that he specifically recalls first experiencing tinnitus in Thailand when he assisted in the launching of three B-52 bombers in consecutive order but only later did the tinnitus become constant. Id. At 3; August 2017 Veteran lay statement. The Veteran is competent to report the onset of ringing in his ears and the Board finds him credible in this regard. See Charles, supra; 38 U.S.C. § 1154(a). As there is evidence both in favor of and against the claim, the Board resolves any reasonable doubt in the Veteran’s favor and finds that element three of service connection for tinnitus is also satisfied. 38 C.F.R. § 3.102. Thus, element three is met for both hearing loss and tinnitus, service connection is warranted, and the relief sought on appeal is granted in full. 4. Entitlement to service connection for Parkinson’s Disease due to herbicide agent exposure is granted. The Veteran asserts that his currently diagnosed Parkinson’s Disease is due to exposure to herbicide agents while serving at Royal Thai Air Force Bases (RTAFBs) U-Tapao and Takhli. See July 2016 VA treatment records, Service Personnel Records (SPRs), June 2017 VA Form 9. The Board agrees. The Veteran does not report, nor do his service treatment records (STRs) identify, any complaints, treatment for, or diagnosis of, Parkinson’s Disease. However, the Board takes judicial notice of a declassified report entitled Project CHECO Southeast Asia Report: Base Defense in Thailand, that shows that there was use of herbicide agents on the perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. See Project CHECO Southeast Asia Report: Base Defense in Thailand at 58. See also Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (allowing for taking of judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed.R.Evid. 201(b)). The Veteran’s DD Form 214 and SPRs indicate that he served as a jet engine mechanic. The Veteran’s SPRs document service at RTAFBs Takhli and U-Tapao from September 1970 through November 1972. Vegetation control was a serious problem at these RTAFBs and due to this, herbicide agents were utilized. See Project CHECO Southeast Asia Report: Base Defense in Thailand at 58, 75. The Veteran testified at his December 2020 Board hearing and has otherwise consistently asserted that he served in close proximity with the perimeter of both RTAFBs while delivering supplies and working on aircraft returning from flying missions into the Republic of Vietnam and additionally that he went outside the base perimeters to get to other airstrips in the course of his usual business. See April 2017 Decision Review Officer conference report, September 2017 and August 2018 Veteran lay statements, December 2020 Board Hearing Transcript at 13. The Veteran also testified that while on temporary duty at RTAFB Takhli, he worked in the same location that herbicide agents were stored and that during a monsoon season the bases would flood with water rushing in from outside the perimeter. Id. At 20. In this regard, the Board notes that monsoons and drainage were described as a security threat in “Project CHECO Southeast Asia Report: Base Defense in Thailand” at 65-66. Accordingly, the Board finds the Veteran’s statements and testimony as to the circumstances of his service, to include his performance of duties near the perimeter of U-Tapao and Takhli RTAFBs, to be credible and consistent with the evidence of record. See 38 U.S.C. § 1154(a); Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (A VA finding that the veteran did serve near the perimeter of the base may be significant because the perimeter was the only area where herbicides of a type similar to Agent Orange may have been used.). Thus, as official records establish the use of herbicide agents on the perimeters of RTAFBs and given the SPRs and the Veteran’s competent and credible reports of his regular presence at the perimeter of RTAFBs during the Vietnam period of war, the Board finds, resolving all reasonable doubt in favor of the Veteran, that he was exposed to herbicide agents during his Vietnam-era service in Thailand. Moreover, he has a current diagnosis of Parkinson’s Disease that is compensable. See, e.g., July 2016 VA treatment records; 38 C.F.R. § 4.124a, Diagnostic Code 9004 (assigning a minimum 30 percent rating or paralysis agitans). Finally, there is no evidence of record to rebut the presumption that the Veteran’s Parkinson’s Disease was incurred by in-service exposure to herbicide agents. 38 C.F.R. § 3.307(d). Therefore, for reasons and bases outlined above, presumptive service connection for Parkinson’s Disease is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.