Citation Nr: 21027155 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-22 353 DATE: May 4, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for b-cell, non-Hodgkins lymphoma is granted. Service connection for diabetes mellitus is granted. Service connection for ischemic heart disease is granted. Service connection for leukemia is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a bilateral hearing loss disability began during the Veteran's active military service, within a year of his discharge, or is otherwise related to an in-service injury or disease. 2. The Veteran's b-cell non-Hodgkins lymphoma, diabetes mellitus, and ischemic heart disease, however, are at least as likely as not related to his service near the base's perimeter in Thailand during the Vietnam era. 3. But he does not have a diagnosis of leukemia and has not since the filing of this claim for this disease or proximate to that. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for bilateral (left and right ear) hearing loss and leukemia. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. However, the criteria conversely are met for entitlement to service connection for b-cell non-Hodgkins lymphoma, diabetes mellitus, and ischemic heart disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1965 to November 1969. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Service connection for bilateral hearing loss is denied. The Veteran contends that his bilateral hearing loss is the result of repeated exposure to excessively loud noise and consequent injury (acoustic trauma) during his military service. However, the Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss including meeting the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a ratable disability for VA compensation purposes, and evidence shows that he sustained acoustic trauma during his service, as alleged, by way of his work as a jet engine mechanic, the preponderance of the evidence weighs against finding that his bilateral hearing loss began during his service, or within a year of his discharge (since, in this circumstance, sensorineural hearing loss especially may be presumed to have been incurred during his service), or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.307, 3.309(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In June 2015, a VA examiner examined the Veteran, reviewed the file, and concluded that it was less likely than not that his bilateral hearing loss was etiologically related to his service. The examiner made specific note of the audiometric testing in service, to include in 1965 and twice in 1969, and concluded the results did not indicate any permanent positive threshold shift while in service or at separation from service. The examiner also noted the Veteran reported consistent use of ear protection while in service, whereas, following separation from service, he had worked as a contractor for approximately 45 years with just intermittent use of ear protection. So, ultimately, the VA examiner did not attribute the Veteran's bilateral hearing loss to his noise trauma in service. The VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board resultantly finds that the most probative and, therefore, most persuasive evidence of record weighs against the Veteran's claim for service connection for bilateral hearing loss. In so finding, the Board places a lot of probative weight on the June 2015 VA examiner's opinion because, although the Veteran has generally contended that his hearing loss is related to his service, he has provided no statements specifically supporting this assertion, such as explaining how long he has experienced hearing loss or whether he noticed hearing loss during or upon his separation from service. Further concerning this, an October 2014 VA treatment record reflects the Veteran's report of hearing loss beginning just one year prior, so not until 2013 or thereabouts, which was long after conclusion of his service. Therefore, there is little to no evidence to refute the VA examiner's opinion. Moreover, the Veteran had not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical nexus opinion regarding the determinative issue of causation. He is competent to report his hearing difficulties, but his lay contentions as to etiology are outweighed by the aforementioned medical opinion rendered by a trained medical professional and based upon a claims file review and an examination of him, with full consideration of his lay contentions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Furthermore, the Board also finds that presumptive service connection is not warranted because there is no evidence the Veteran had bilateral sensorineural hearing loss to a compensable degree within one year of separating from service, so by November 1970. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Since, for these reasons and bases, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and this claim of entitlement to service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for diabetes mellitus (DM) is granted. 3. Service connection for ischemic heart disease (IHD) is granted. 4. Service connection for non-Hodgkins lymphoma (NHL) is granted. The Veteran contends that his b-cell non-Hodgkins lymphoma, diabetes mellitus, and ischemic heart disease are all from exposure to herbicides while stationed in Thailand during the Vietnam War. A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as "adult-onset" diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). Also, the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to this list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism to this list of conditions where statistically significant association exists between exposure to herbicide agents and subsequent development. VA procedures for verifying exposure to herbicide agents in Thailand during the Vietnam Era are detailed. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide-agent exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. Regarding herbicide-agent exposure in Thailand during the Vietnam Era, "herbicide" is understood to mean "herbicide agent" as used in the regulation. Rating specialists are directed to concede herbicide agent exposure to those who served in the United States Air Force at a number of Royal Thai Air Force Bases. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases 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 base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. In this case at hand, the Veteran contends that, while he did not work as a security policeman, security patrol dog handler, or member of a security police squadron, his duties as an aircraft mechanic brought him into contact with the perimeter of the Takhli Air Force Base. He contends the runways were next to the perimeter and that there was a bunker that he would go to that was just near the perimeter of the base. In February 2018, the Defense Records Information Retrieval System (DPRIS) researched the Veteran's contentions. DPRIS responded that the 1969 histories for the Veteran's squadron were reviewed, and that the duties performed by this squadron entailed maintenance support and specialist assistance to other maintenance activities, to include such duties as repair and overhaul of aircraft, missiles, training equipment and accessories, organizational and field maintenance of aerospace ground equipment and personnel equipment, fabrication of parts, testing, calibration, reclamation, and repair of aeronautical and nonaeronautical parts. These histories did not mention the Veteran's specific duties or others near the base perimeter. The histories also did not show that this unit was exposed to Agent Orange or other tactical herbicides. DPRIS quoted a copy of the U.S. Air Force Historical Research Agency memorandum dated in August 2015 stating that there was no documentation or evidence that tactical herbicides, such as Agent Orange, were ever used on any U.S. Air Force installation in Thailand for vegetation control during the Vietnam era. The Veteran and his representative have submitted articles and other evidence, to include an affidavit completed by another serviceman, attesting that herbicides used for vegetation clearing were employed in Thailand during the Vietnam era. The Veteran also has submitted photographs of the runways where he worked and site plan of the Air Force base where he was stationed. There are multiple records in the file, including from DPRIS, which weigh against finding that the Veteran was exposed to tactical herbicides while stationed in Thailand. But these records do not actually refute his contention that he was "at or near the base perimeter" while stationed at Takhli Air Force Base, and this is a case-by-case (i.e., fact-specific) determination. Because he has provided credible lay evidence that his duties and responsibilities took him to this section of the base, and when following protocol and case law, the Board finds that exposure to herbicides is conceded in this case when resolving all reasonable doubt concerning this in the Veteran's favor. Therefore, the claims for service connection for b-cell non-Hodgkins lymphoma, diabetes mellitus, and ischemic heart disease are granted. 5. Service connection for leukemia is denied. While the Veteran filed a claim also for service connection for leukemia, he has not been diagnosed with this other disease. Therefore, service connection cannot be awarded even though "B-cell leukemias" (so aside from NHL) are presumptively associated with exposure to Agent Orange. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.