Citation Nr: 21029378 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-08 666 DATE: May 13, 2021 ORDER New and material evidence having been presented, reopening of the claim for service connection for diabetes mellitus, type II is granted. Entitlement to service connection for diabetes mellitus, type II is granted. Entitlement to service connection for an ischemic heart disease (IHD) is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for Parkinson's disease is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus is remanded. INTRODUCTION The Veteran served on active duty in the Air Force from March 1964 to May 1968. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. The Veteran previously submitted a claim for entitlement to service connection for diabetes mellitus which was denied in an August 2012 rating decision on the basis that the Veteran's exposure to herbicides could not be verified. The August 2012 rating decision became final because the Veteran did not timely appeal the claim within the appeal period. In connection with the Veteran's claim to reopen, he has submitted additional evidence which corroborates his exposure to herbicides in Thailand. Thus, the Board finds new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). FINDINGS OF FACT 1. The Veteran's diabetes mellitus, type II is related to exposure to herbicide agents during his period of active service. 2. The Veteran's IHD is related to exposure to herbicide agents during his period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As explained below, the Board has determined the evidence currently of record is sufficient to grant entitlement to service connection for diabetes mellitus and IHD. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A or 38 C.F.R. § 3.159 with respect to these claims. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303 (d). If a veteran was exposed to a herbicide agent during active military, naval, or air service, type II diabetes and ischemic heart disease shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(ii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). 38 C.F.R. § 3.307 (a)(6)(ii) requires type II diabetes and ischemic heart disease manifest to a degree of 10 percent or more at any time after service. Factual Background and Analysis The Veteran has initiated claims for service connection for diabetes mellitus and IHD, which he asserts were caused by exposure to herbicides in service. Since the resolution of these claims involves the application of identical law to similar facts, in the interest of judicial economy these issues will be addressed together. Initially, the Board notes the Veteran's treatment records from the Cleveland VAMC and the SCS show he has been treated for diabetes mellitus and ischemic heart disease, status-post myocardial infarction throughout the appeal period. Therefore, the central issue is whether the Veteran was exposed to herbicides in service. VA's Compensation and Pension (C&P) Service has determined that special consideration of herbicide exposure on a factual or facts-found basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand bases when a veteran with service in Thailand during the Vietnam Era claims service connection for disability based on herbicide exposure. VA has determined that there was significant use of herbicides on the fenced-in perimeters of bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Such claimants must have served with the U.S. Air Force or Army in Thailand during the Vietnam Era at one of the RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang during the period from February 28, 1961, to May 7, 1975. Additionally, such claimants must have performed duties as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise have served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. As noted above, the Veteran served in the U.S. Air Force. He was stationed at U-Tapao and Tahkli RTAFB in Thailand during the Vietnam Era, and has asserted that during that time he performed duties and was otherwise in close proximity to the base perimeters on several occasions. In support of his claim, the Veteran provided evidence of the base layout at U-Tapao as well as photographs of himself at or near the base perimeter. Although the Veteran's service personnel records do not confirm his direct exposure to herbicides or service along the base perimeter, the various statements and evidence provided by the Veteran over the course of this claim have been consistent, and the Board finds no other reason to question his veracity. Further, the evidence clearly indicates herbicides were sprayed at U-Tapao and Tahkli RTAFB during the time the Veteran was stationed there. In sum, the evidence of record demonstrates the Veteran served at U-Tapao and Tahkli RTAFB, within close proximity to the base perimeter where herbicides were sprayed. Resolving all reasonable doubt in favor of the Veteran, the evidence of record demonstrates he was exposed to herbicides that were sprayed at U-Tapao and Tahkli RTAFB. He has since manifested IHD and diabetes mellitus, type II to a compensable degree. Therefore, service connection is warranted for these disabilities. REASONS FOR REMAND Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the medical opinions provided during November 2015 and November 2018 VA audiological examinations to be inadequate. In the course of those examinations, the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. However, the examiners found the Veteran's disabilities were not as least as likely as not caused by or the result of his military noise exposure. The November 2015 VA examiner wholly ignored the Veteran's puretone threshold shifts in service. The November 2018 examiner explained the Veteran's threshold shifts may have been temporary. The Board also notes a series of papers by Sharon Kujawa at the Department of Audiology Massachusetts Eye and Ear Infirmary, which shows that even in the presence of a "fully" recovered temporary threshold shift (TTS), hair cells are damaged. This study indicates that while people have a finite number of hair cells at any given frequency only a portion of those cells are needed for what we measure as normal hearing, and the remainder could be considered a protective mechanism. This study also suggests that as people age these hair cells are damaged and if the redundant cells are not there the individual will experience a greater hearing loss. Until recently, short term exposure was thought to result in a TTS that recovered completely when the individual was sound. However, the above-noted data/papers provide additional evidence supporting the concept of latent onset hearing disability. Based on this study the Board finds the November 2018 examiner's opinion to be insufficient and finds a medical opinion from an Otolaryngologist is necessary prior to the final adjudication of this matter. Next, the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran's outpatient treatment records confirm he has been treated for essential tremors, which may be caused by Parkinson's disease during the appeal period. However, the Veteran declined a formal neurological workup in June 2017 to confirm the diagnosis. The Veteran has also been treated for hypertension and lower extremity neurological manifestations, which he has asserted may be consequentially related to his service-connected diabetes mellitus. Based on the foregoing, the Board finds VA examinations and medical opinions are necessary to determine whether the Veteran's current disabilities either originated in service or are etiologically related to a service-connected disability. Accordingly, this case is REMANDED for the following actions: 1. Obtain an addendum medical opinion from a VA Otolaryngologist with sufficient experience and expertise to provide an opinion as to the etiology of the Veteran's bilateral hearing loss and tinnitus. The physician must consider the above-noted study by Dr. Sharon Kujawa, and in doing so, must also be mindful that although the Veteran's sensorineural hearing loss may not have manifest until many years after service, service connection can still be established if the evidence shows the current disability was as likely as not consequentially related to incidents during service. In this regard, the physician must state whether any degree of the Veteran's bilateral sensorineural hearing loss or tinnitus at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include his conceded military noise exposure. Another examination of the Veteran must be performed only if deemed necessary by the physician providing the opinion. The examiner must provide a complete rationale for all proffered opinions. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 2. Also, the Veteran should be afforded an examination by a VA examiner with sufficient expertise to determine the etiology of the Veteran's neurological disability (claimed as Parkinson's), hypertension, and bilateral lower extremity neurological disorders. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on a review of the Veteran's pertinent history and the examination results, the examiner should indicate whether the Veteran has a confirmed diagnosis of Parkinson's disease. Based on a review of the Veteran's pertinent history and the examination results, the examiner should also state an opinion with respect to whether any non-Parkinson essential tremor, hypertension, or lower extremity neurological disability diagnosed during the pendency of this claim, at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to include as a result of his conceded Agent Orange exposure. The examiner should state whether the Veteran's hypertension and/or lower extremity neurological disorders at least as likely as not (a 50 percent probability or greater): a) were caused by his service-connected diabetes mellitus; or b) were worsened to any degree by his service-connected diabetes mellitus. In this regard, the examiner must discuss and consider the Veteran's competent and credible lay statements. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.