Citation Nr: 21020807 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-30 014 DATE: April 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for type II diabetes mellitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss began during active service. 2. The Veteran was exposed to herbicide agents (including Agent Orange) in Thailand during the Vietnam War era. 3. The Veteran has been diagnosed as having type II diabetes mellitus. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for type II diabetes mellitus 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 with the United States Air Force from October 1968 to October 1972. These matters come before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is awarding service connection for bilateral hearing loss and type II diabetes mellitus, and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. 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). 1. Entitlement to service connection for bilateral hearing loss Hearing loss is considered to be a disability for VA purposes 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has current bilateral hearing loss which had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA and that the evidence is at least evenly balanced as to whether this disability began during active service. A February 2013 VA audiological examination report shows the Veteran experiences current bilateral hearing loss as defined by VA. See 38 C.F.R. § 3.385. Therefore, current hearing loss disability has been demonstrated. Additionally, there is evidence of bilateral hearing impairment in service and evidence of continuous hearing loss symptoms in the years since service. In this regard, the Veteran reported during the April 2021 Board hearing that he began to experience impaired hearing in service and that he has experienced continuous hearing loss symptoms in the years since service. The Board acknowledges that there is some evidence which is inconsistent with a continuity of hearing loss symptomatology in the years since service. Specifically, the Veteran reported on a September 1972 report of medical history form completed for purposes of separation from service that he was neither experiencing, nor had he ever experienced, any hearing loss. Also, he reported during an April 2003 audiological evaluation with J.L. Howard, II, MD that he did not experience any major hearing problems. Nevertheless, an audiological evaluation conducted during the Veteran’s September 1972 separation examination reflects that the pure tone thresholds at 500 Hertz were 25 decibels in the right ear and 35 decibels in the left ear. The Board points out that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Also, the Veteran reported during the April 2003 examination with Dr. Howard that although he did not notice any hearing loss, his wife did notice that he experienced hearing loss. He was diagnosed as having mild high frequency hearing loss at the time of the April 2003 examination. The Veteran is competent to report continuous hearing loss symptoms in the years since service and his wife is competent to report her observations of the Veteran’s symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is no other evidence that explicitly contradicts these lay reports of continuous hearing loss symptoms in the years since service and the reports are otherwise generally consistent with the evidence of record and the circumstances of the Veteran’s service. Also, as explained above, there is evidence of bilateral hearing impairment documented at the time of the Veteran’s separation from service. Therefore, the Board concludes that the reports of continuous hearing loss symptoms in the years since service are credible. The examiner who conducted the February 2013 VA audiological examination opined that the Veteran’s hearing loss was not likely (not “at least as likely as not”/“50 percent probability or greater”) caused by or a result of service. She reasoned that the Veteran’s audiograms conducted during his examinations for entrance into service and separation from service were within normal limits bilaterally and that the high frequency hearing loss manifested significantly after his separation from service. The current conductive component to his hearing loss was not related to noise exposure, but was related to recurrent ear infections. The recurrent ear infections were most likely due to Eustachian tube dysfunction, secondary to palate abnormalities. The February 2013 opinion is of little, if any, probative value because it is partially based upon an inaccurate history. Specifically, the examiner reasoned that the Veteran’s hearing was within normal limits during his September 1972 separation examination. However, as explained above, bilateral hearing impairment (i.e., pure tone thresholds above 20 decibels) was noted during his separation examination. Therefore, the February 2013 opinion is partially based on an inaccurate history and is of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Moreover, the February 2013 opinion is also based on the absence of evidence of treatment for hearing loss in service and for many years following service, and it does not take into account the competent and credible lay reports of hearing impairment in service and continuous hearing loss symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In sum, the evidence reflects that the Veteran experienced bilateral hearing impairment in service and that there have been continuous hearing loss symptoms in the years since service. He also experiences current bilateral hearing loss disability. There is no adequate medical opinion that is contrary to a conclusion that the current hearing loss had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 2. Entitlement to service connection for type II diabetes mellitus The Veteran contends that he was exposed to herbicide agents (including Agent Orange) while serving in Thailand during the Vietnam War era, and that he has type II diabetes mellitus which is related to his exposure. The Board finds, for the following reasons, that the Veteran was exposed to herbicide agents (including Agent Orange) during service and that he has a current diagnosis of type II diabetes mellitus that is presumptively service-connected. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including type II diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Although veterans who served in the Republic of Vietnam during the Vietnam War era are presumed to have been exposed to herbicide agents, the Veteran did not serve in Vietnam. Rather, he served in Thailand. In addition to exposure within the Republic of Vietnam, exposure to herbicide agents (including Agent Orange) has been noted to have occurred in various places outside of the Republic of Vietnam, including Thailand. VA Compensation Service has acknowledged that there is “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.” Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep’t of Veterans Affairs, Washington, D.C.), May 2010, at 3). Specifically, VA has determined that U.S. Air Force veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicide agents. To warrant a finding of herbicide agent exposure at one of the above listed air bases, a veteran must have served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence. If any of these criteria are met, exposure to herbicide agents is to be conceded on a direct/facts-found basis. In the case of veterans who served at a U.S. Army base in Thailand during the Vietnam era, herbicide agent exposure may be conceded on a direct/facts-found basis for veterans who served as a member of the military police unit, or with a military police occupational specialty. In this case, medical records, including a Diabetes Mellitus Disability Benefits Questionnaire (VA Form 21-0960E-1) shows that the Veteran experiences type II diabetes mellitus which is treated with more than one injection of insulin per day. Therefore, current type II diabetes mellitus is demonstrated. The Veteran contends that he was exposed to herbicide agents (including Agent Orange) while serving in Thailand during the Vietnam War era. His service personnel records confirm that he was assigned to temporary duty at Korat Air Base in Thailand in May 1972. He has reported that he served on the flight line while stationed at Korat and performed duties along the base perimeter. The Veteran is competent to report serving along the perimeter of Korat Air Base during his service in Thailand during the Vietnam War era. Also, there is no affirmative evidence to explicitly contradict his reports and his reports are consistent with the places, types, and circumstances of his service. See 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Moreover, the Board must consider the Veteran’s statements along with the other evidence of record in determining whether he served along the base perimeter at Korat Air Base in Thailand. Parseeya-Picchione, 28 Vet. App. at 176 (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). In light of the above, the Board finds that the evidence indicates that the Veteran served along the perimeter of Korat Air Base in Thailand during the Vietnam War era. Therefore, his exposure to herbicide agents in service (including Agent Orange) is conceded. Moreover, as the Veteran has current type II diabetes mellitus, and was exposed to herbicide agents in Thailand, service connection for type II diabetes mellitus is warranted on a presumptive basis. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.