Citation Nr: 21022116 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-18 601 DATE: April 14, 2021 ORDER Entitlement to service connection for type II diabetes mellitus (diabetes) is granted. Entitlement to service connection for coronary artery disease is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents in Korea. 2. The presumption that the Veteran’s diabetes was incurred by in-service exposure to herbicide agents has not been rebutted. 3. The presumption that the Veteran’s coronary artery disease was incurred by in-service exposure to herbicide agents has not been rebutted. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for coronary artery 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 in the United States Army from October 1967 to June 1969, including service in Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claims on appeal in February 2019. Notably, during the pendency of this appeal, a January 2021 rating decision awarded service connection for hypertension. This issue is accordingly not in appellate status. 1. Entitlement to service connection for diabetes is granted. 2. Entitlement to service connection for coronary artery disease is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6). Diseases presumptively associated with herbicide agent exposure include diabetes and ischemic heart disease (which includes coronary artery disease), if manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease. See 38 C.F.R. § 3.307(d). Here, the Veteran is currently diagnosed with diabetes, requiring one or more daily injection of insulin and restricted diet, as well as coronary artery disease, requiring continuous medication. See March 2015 VA treatment record; 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913; January 2016 VA treatment record and October 2018 private treatment record; 38 C.F.R. § 4.104, DC 7005. Therefore, the Veteran’s disorders are of a compensable degree and the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran does not report, nor do his service treatment records (STRs) identify any complaints, treatment for, or diagnosis of diabetes or a heart condition, or symptoms indicative of the same. Instead, the Veteran relates his disabilities to herbicide agent exposure in Korea and testified that while he did not visit the DMZ, he was near it and could see it from his duty station. See Board Hearing Transcript at 4-5. Military personnel records confirm that the Veteran was stationed in Korea from 1968 to 1969 and was attached to 2nd Infantry Division, 702nd Maintenance Battalion. The Board notes that Veteran’s unit is not among those recognized by the DoD as operating in the Korean DMZ, nor does the unit history show any specific duties performed along the DMZ or document the use, storage, spraying, or transportation of herbicides agents. However, the RO determined that the unit was located approximately 10 miles south of the DMZ. See January 2021 VA Memo. The Veteran’s STRs indicate that he received medical treatment at the 2nd Battalion, 72nd Armor unit dispensary. Specifically, STRs dated April 1968 and March 1969 are stamped “unit dispensary, 2ND BN 72ND ARMOR” or “unit dispensary, 2/72 Armor” indicating that he sought treatment on several occasions at that location. The DoD has identified the 2nd Battalion, 72nd Armor as a unit operating in the Korean DMZ during the qualifying time period. It is reasonable to infer from this evidence that the Veteran was in close proximity to the DMZ. Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). Affording him the benefit of the doubt, the Board finds that the Veteran was exposed to herbicide agents during service in Korea. Additionally, the Board finds that there is insufficient evidence to rebut the presumption that the Veteran’s diabetes and coronary artery disease are related to his in-service exposure to herbicide agents, as there is no competent medical opinion of record clearly attributing the same to intercurrent causes. Accordingly, as the Veteran’s in-service exposure to herbicide agents has been established and he has diseases manifested to a compensable degree that are presumptively associated with herbicide agent exposure, the Board finds that presumptive service connection for diabetes and coronary artery disease is established. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. Remand is warranted, as the August 2020 VA examiner’s opinion is inadequate. Specifically, the examiner relied on the lack of hearing loss and evidence of acoustic trauma documented in the record and did not address the Veteran’s reports of in-service noise exposure and continuous symptoms in relation to his current hearing loss. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim); Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service). Thus, an addendum opinion with a different examiner is needed on remand. The matter is REMANDED for the following action: Obtain an addendum opinion from an audiologist other than the August 2020 VA examiner addressing the etiology of the Veteran’s bilateral hearing loss. The entire claims file should be made available to the examiner. No additional examination is necessary unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset in or is otherwise related to service. For purposes of providing this opinion, the examiner must discuss and assume as true accept as true the Veteran’s statements regarding in-service noise exposure from weapons fire and vehicle engines running constantly without any hearing protection and continuous hearing loss symptomatology since service, as well as his wife’s testimony as to an observed decrease in his hearing (see Board Hearing Transcript at 22-25 and February 2021 Notice of Disagreement ), and determine, based on the same, whether a nexus to service is “medically plausible,” while considering the fact that tinnitus has been attributed to service and that “an associated hearing loss is usually present” with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Please note that the absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.