Citation Nr: 21029395 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-34 835 DATE: May 13, 2021 ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide exposure. 3. Entitlement to service connection for Parkinson's Disease, to include the residuals thereof, to include as due to herbicide exposure. 4. Entitlement to service connection for a left ear hearing loss disability. ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is granted. Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide exposure is granted. Entitlement to service connection for Parkinson's Disease, to include the residuals thereof, to include as due to herbicide exposure is granted. REMANDED Entitlement to service connection for a left ear hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran's duties at Korat Royal Thai Air Force Base likely placed him near the perimeter of the base. Exposure to herbicide agents may be presumed. 2. The Veteran has a current diagnosis of diabetes mellitus, type II. 3. The Veteran has a current diagnosis of coronary artery disease. 4. The Veteran has a current diagnosis of Parkinson's Disease. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II is presumed to have been incurred in wartime service. 38 U.S.C. §§ 1101, 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Coronary artery disease is presumed to have been incurred in wartime service. 38 U.S.C. §§ 1101, 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Parkinson's Disease, to include the residuals thereof, is presumed to have been incurred in wartime service. 38 U.S.C. §§ 1101, 1110, 1116, 5103A, 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 Air Force from June 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran claimed entitlement to service connection for each of the above-listed claims in December 2017. Those claims were denied in a rating decision from March 2018. The Veteran filed a timely Notice of Disagreement (NOD) in April 2018, and he was issued a statement of the case in September 2019. The Veteran filed a VA Form 9 two months later in November 2019 and requested a Board Hearing. The Veteran's claims were certified to the Board in May 2020. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in April 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for diabetes mellitus, type II; service connection for coronary artery disease (CAD); and service connection for Parkinson's Disease, to include the residuals thereof, each to include as due to herbicide exposure. The Veteran has claimed that his diabetes mellitus, type II, his coronary artery disease (CAD), and his Parkinson's Disease, to include its residuals, are each due to his active duty service. Specifically, the Veteran has claimed that each of these diseases are due to herbicide agents that he was exposed to while on active duty with the U.S. Air Force at the Royal Thai Air Force Base in Korat, Thailand. As an initial matter, the Veteran currently has a diagnosis of each of the listed disabilities. A VA examination from February 2018 confirmed the Veteran's diagnosis of diabetes mellitus, type II and CAD, and VAMC notes from 2017-2018 confirm that the Veteran is regular seen for management of his Parkinson's Disease, to include the residuals thereof. As such, the first criteria for entitlement to service connection is met for each of the claimed disabilities. 38 C.F.R. § 3.309. The crux of the Veteran's claims each involve whether or not he was exposed to herbicides agents while stationed at the Korat Royal Thai Air Force Base. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Notwithstanding, service connection for a disability claimed as being due to presumptive exposure may still be established by showing that the disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. The Board notes that Parkinson's Disease, CAD, and diabetes mellitus, type II are each diseases that may be presumptively linked to herbicide exposure. 38 C.F.R. § 3.309 (e). As an initial matter, neither the Veteran nor his Representative contend that the Veteran served in, nor stepped foot in the Republic of Vietnam. As noted above however, they do contend that the Veteran was exposed to herbicides while serving at the Korat Royal Thai Air Force Base. In August 2015, the M21-1MR manual provisions relating to claimed herbicide exposure in Thailand were rescinded and replaced with new M21-1 provisions and were thereafter subject to additional revision. The current version of M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b., provides 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. If a Veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base 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 the Veteran's military occupational specialty (MOS), performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e). The Veteran's Military Personnel Record (MPR) confirms that the Veteran served at the Korat Royal Thai Air Force Base in Thailand from approximately May 1966 to January 1967. While stationed at Korat the Veteran served as a Weapons Control Specialist for his military occupational specialty (MOS). Thus, the Veteran served at a U.S. Air Force Base in Thailand that is covered by the presumption for service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e). The Veteran's MOS was not as a member of a security policeman, as a security patrol dog handler, or as a member of a security police squadron. Thus, herbicide exposure must be based on other credible evidence on a facts-found basis. The Veteran was given a Board hearing before the undersigned in April 2021. During the hearing, the Veteran testified that his MOS had placed him working in multiple positions around the base. He also testified that he was reassigned a few times before finding his official MOS, being reassigned from the 441st A&E Squadron to the 388th Tactical Fighter Wing. He also testified that he "walked everywhere," around the base, including "the hooches, up to the hooch, the PX, the library, the theatre, USO shows, the gym, and other airmen's hooches that I made friends with and the airman's club." The Veteran also testified that he went into town on several occasions and traveled by a bus that drove right over the perimeter. Since the bus did not have air conditioning, the windows were routinely opened, and he breathed in the air surrounding the perimeter. He also testified that his MOS occasionally required him to drives trucks to deliver weapons and equipment, which occurred "several times." Correspondence from April 2021 indicates that the Veteran's MOS placed him "all over Korat," delivering equipment. In the Veteran's VA Form 9, he wrote that the 388th Squadron's Maintenance Building was "approximately 50 meters from the perimeter fence line on the South West end of the tarmac and the base," and it was "sprayed with herbicidal agents on a regular basis to keep the foliage dead." He also stated that the 388th Munitions Area was sprayed routinely, and that his duties placed him on and off base routinely, having to cross through the perimeter "on the land saturated with Agent Orange." These details were generally repeated in correspondence from February 2018. In that statement, he further wrote that he lived near the perimeter, and that area "did not have glass windows, just screens so for almost a year I was breathing this [herbicide] air." He also wrote that he sat in the mess halls and ate next to everyone else on base who also were exposed and more than likely had the herbicide on their uniforms sitting there next to me. We all shared the same latrines, clothes washed together, played extracurricular sports together ... none of us were separated due to our jobs, or possible 'exposure,' [or] where we walked and didn't walk. These claims were also briefly discussed in an earlier statement from November 2017. The Veteran also submitted a detailed map of Korat Royal Thai Air Force Base. The map includes specific highlighted areas and numbers, where the Veteran has identified areas that he frequented as part of his daily routine, or due to his MOS. He described the perimeter areas, the living quarters, the latrines, the NCO club and swimming pool area, physical fitness training routes, and the 388th Maintenance and Armament areas related to his MOS. The Board notes that these MOS duty stations are located along the perimeter of the base. The Veteran is competent to report that which he experienced in service, including the duties associated with his MOS, as well as his daily routine. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's claims file also includes a response provided by the Joint Services Records Research Center (JSRRC) from March 2018, in relation to the RO requesting information about the Veteran's claimed exposure to herbicides. The JSRRC stated that they reviewed a memorandum that concluded "no documentation or evidence has been found ... showing that tactical herbicides, such as Agent Orange, were ever used on any USAF installation in Thailand for vegetation control during the Vietnam era." The Board notes that this finding is directly counter to the current version of the M21-1, specifically Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b., which provides 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. The JSRRC finding also does not examine any factual claims made by the Veteran, including those related to his MOS and routine duties along the air base perimeter. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. In consideration of the above, the Board finds that the Veteran's exposure to herbicide agents is conceded based on credible evidence and a facts-found basis. To begin, the Veteran has submitted competent and credible testimony that his daily routine, which includes the duties of his MOS, involved the maintenance and delivery of weapons control equipment to various stations around the base, to include areas along the perimeter. The Veteran also testified to having driven a truck on several occasions as a result of his MOS, but also that he regularly left the base to go into town on a bus with open windows, and drove over the perimeter of the air base. He has provided consistent statements regarding his MOS and duties, but also his daily routine that involved him "walking everywhere," going to areas across the base, and exercising along areas of the perimeter base. Importantly, the Veteran's claims file includes a very detailed map of the Korat AFB, whereby the Veteran identified specific installations related to his MOS as weapons control specialist with the 388th Squadron, including the maintenance areas and munitions areas. Again, the Board has recognized that these areas are located along the perimeter of the Korat AFB, and the Board has further confirmed from the Veteran's MPN and his DD-214 that his claimed MOS and squadron are correct. The only factual evidence against the Veteran's claim is a JSRRC finding that does not consider the Veteran's specific MOS, nor those duties that placed him along the perimeter of the air base, and in fact provides a conclusion that is directly counter to the current version of the M21-1. In fact, if the JSRRC finding was taken at face value, then no Veteran stationed at any Royal Thai Air Force Base, regardless of their MOS, would be able to presumptively claim entitlement to service connection for exposure to herbicides. Thus, the Board finds that the Veteran's exposure to herbicide agents is conceded on a facts-found basis. 38 C.F.R. § 3.309 (e). To summarize, the Veteran has a current diagnosis of diabetes mellitus, type II, CAD, and Parkinson's Disease. Each of those diseases may be presumptively related to herbicide exposure, and the Board has conceded that the Veteran has been exposed to herbicide agents on a facts-found basis, while serving at the Royal Thai Air Force Base in Korat, Thailand. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. As such, entitlement to service connection for diabetes mellitus, type II, coronary artery disease and Parkinson's Disease are each granted. 38 U.S.C. §§ 1110, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND The Board incorporates its discussion from the sections above by reference. The Board finds that additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to service connection for a left ear hearing loss disability is remanded. The Veteran has claimed that his left ear hearing loss disability is due to his active duty service. As noted above, the Veteran was given a Board hearing before the undersigned in April 2021. During the Veteran's hearing, he testified that while on active duty he worked around aircraft and loud jet engines. As a weapons control specialist, he was charged with servicing some portions of the aircraft, and helping out with "fire control and weapons ... we go up there and see if we can fix it and not have to abort the flight." He testified that he "heard the planes leave ... every morning taking off, stuff like that." The Veteran also submitted correspondence in November 2017, that states that "while working on weapons systems on aircraft on the flight line, I had constant noise exposure." In the Veteran's April 2018 NOD, he wrote that his left ear should be service connected as his right ear is currently, "since my left ear was exposed to the same acoustic trauma." See further, VA Form 9. The Veteran is competent to report that which he experiences, such as his in-service noise exposure. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As noted in the preceding section, the Veteran's MOS has been confirmed as a weapons control specialist with the Air Force, which included him transporting and resupplying equipment and materials. These duties likely placed him around aircraft and jet engines, and therefore his in-service noise exposure may be conceded. The Veteran was given a VA examination in March 2018. The Veteran was seen in person, and his claims file was reviewed. The Veteran's diagnosis of sensorineural hearing loss in the left ear was confirmed. There is no indication that the Veteran's in-service noise exposure was considered. The examiner then opined that the Veteran's left ear hearing loss was less likely than not due to his military service, and the rationale stated, "hearing test administered on 11/21/1966 on separation from Army revealed normal hearing from 500-400 Hz." No further details were provided. The Board observes that during this VA examination, compared to the left ear hearing loss, the examiner provided a positive etiological opinion for the Veteran's right ear hearing loss, and his tinnitus, which are both currently service connected. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that a new VA addendum opinion and possible examination are necessary because the basis of the VA examiner's opinion is insufficient for adjudication purposes. In short, the examiner based the opinion, that the Veteran's hearing loss was not caused by or a result of military noise exposure, on the lack of evidence indicating a hearing loss disability during service. See 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the lack of a demonstrated hearing loss disability in service "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service"). Furthermore, the Board also notes that rationale provided is brief and conclusory, and that the examiner noted the Veteran's service branch to be the Army, when it is actually the Air Force. Finally, the VA examiner provided a negative etiological opinion for the left ear hearing loss disability while providing a positive etiological opinion for the right ear, despite the in-service noise exposure being the same. Again, the Board has conceded that in-service noise exposure of being around aircraft and jet engines. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran's claim should be remanded for a VA addendum opinion that is compliant with the holding in Hensley, but also one that considers the Veteran's in-service noise exposure to aircraft and jet engines, which the Board has conceded. An additional VA examination is not strictly required, as the Veteran's left ear hearing loss diagnosis has been confirmed, however may be scheduled if deemed necessary by the VA examiner. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Forward the Veteran's claims file to a VA audiologist for a VA addendum opinion to assess the nature and etiology of the Veteran's claimed left ear hearing loss disability. A VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), should be scheduled only if deemed necessary. The entire record must be reviewed by the examiner. Based on a review of the entire claims folder, the examiner is asked to opine as to the following: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's left ear hearing loss disability is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. The examiner is reminded that the Veteran has provided competent lay statements and testimony regarding his in-service noise exposure, to include being stationed around military aircraft and jet engines while on active duty with the U.S. Air Force, which has been conceded by the Board. The examiner is also reminded that the lack of a demonstrated hearing loss disability in service "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A detailed rationale for the opinions must be provided. The examiner are reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 3. After completing the above and ensuring that any other appropriate development of those claims is complete, readjudicate the Veteran's claim of entitlement to service connection for a left ear hearing loss disability. If the benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his Representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.