Citation Nr: 21030571 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-21 077 DATE: May 19, 2021 ORDER Service connection for type II diabetes mellitus (DM II) is granted. Service connection for ischemic heart disease (IHD) is granted. Service connection for peripheral neuropathy of the bilateral lower extremities is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran was stationed at Royal Thai Air Force Base (RTAFB) Korat during the Vietnam era and his credible statements demonstrate that he was exposed to herbicidal agents during his service in Thailand. The evidence also demonstrates that the Veteran is currently diagnosed with DM II and IHD. 2. The preponderance of the evidence weighs for finding that the Veteran's peripheral neuropathy of the bilateral lower extremities is directly related to his service. 3. The Veteran provided competent and credible testimony that his current bilateral hearing loss disability is causally related to noise exposure during service. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for DM II have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for presumptive service connection for IHD have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 1111, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§1131, 1154(a), 5107(b) (2012); 38C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service during the Vietnam era from March 1966 to December 1969. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2018 rating decision. In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A transcript of that hearing is of record. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all of the evidence in the claims file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In regard to exposure to an herbicide agent, to include Agent Orange, 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 VA has determined that certain diseases are associated with exposure to certain herbicide agents, including type II diabetes mellitus and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)). 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307, 3.309 (e). Such identified diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, subject to the requirements of 38 C.F.R. § 3.307 (a)(6), even though 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. See 38 C.F.R. § 3.309 (e). The VA has acknowledged that herbicide agents were in some instances used in Thailand. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). The VA has determined that special consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose service activities involved duty on or near the perimeters of Thailand military bases because 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. Thus, in the case of Veterans serving in Thailand during the Vietnam era, VA currently concedes in-service herbicide exposure for Air Force service personnel serving at specifically enumerated RTAFBs but only if the Veteran's served in a military occupational specialty (MOS) with duties placing him or her at or near the air base perimeter. See Id. Specifically, the VA will concede herbicide exposure if an Air Force Veteran served on one of the enumerated air bases as an Air Force (1) security policeman, (2) security patrol dog handler, (3) member of a security police squadron or (4) otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence. Notwithstanding the above, where exposure to herbicide agents may not be conceded, a veteran may establish service connection with proof of actual direct exposure to such herbicide agents. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Service connection for DM II 2. Service connection for IHD Factual Background & Analysis The Veteran's military personnel records reflect service at RTAFB Korat in November 1967 and August 1968. Special consideration of herbicide exposure on a factual basis should be extended to Air Force veterans whose duties placed them on or near the perimeters of certain RTAFBs to include Korat. Herbicide exposure may be conceded on a facts-found basis if a veteran served on one of the listed RTAFBs during the Vietnam Era if the veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. Here, military personnel records reflect that the Veteran's military occupational specialty (MOS) while stationed at RTAFB Korat was Airborne Radio Operator. This is not an MOS which is presumed to have placed the Veteran at or near the air base perimeter. However, the Veteran provided competent and credible evidence during his April 2021 hearing testimony that he worked, lived, and recreated near the perimeter of the base. He specifically recounted that he sat on orange barrels of Agent Orange stored on the flight line while waiting for his aircraft to take off. Moreover, he conveyed that his clothing was hung on clotheslines on the perimeter of the base and wind would blow the fumes from Agent Orange that was sprayed to defoliate areas near the clotheslines. The Board considers the Veteran competent to provide argument about matters of which he has personal knowledge; for example, he is competent to describe witnessing flight lines and the perimeter of his base being sprayed with herbicidal agents on a regular basis and him frequenting those areas. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board resolves reasonable doubt in the Veteran's favor and finds, on a facts found basis, that his duties took him near the perimeter of the RTAFB Korat and that he was exposed to herbicidal agents while stationed in Thailand. Moreover, the record clearly demonstrates that the Veteran has been diagnosed with DM II and IHD. Accordingly, as he is now presumed to have been exposed to herbicides, these disabilities are entitled to presumptive service connection. 38 C.F.R. §§ 3.309(e), 3.307(a)(6). 3. Service connection for peripheral neuropathy of the bilateral lower extremities Factual Background & Analysis Private treatment records from Our Lady of the Lake Physician Group reflect diagnosis and treatment for peripheral neuropathy since the mid-1980s. An April 2020 correspondence from the Veteran's Primary Care Physician (PCP) states that there "is a strong possibility" that the Veteran's peripheral neuropathy is directly related to conceded exposure to Agent Orange during his service in Thailand given that he has no family history for this disability. There is no medical evidence, including VA medical opinions, to weigh against this evidence suggesting a nexus between the Veteran's peripheral neuropathy of the bilateral lower extremities and exposure to Agent Orange during his service in Thailand. Consequently, and affording all reasonable doubt to the Veteran, the Board finds that service connection has been established on a direct causation basis and the claim is granted. 38 C.F.R. § 3.303; See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 4. Service connection for bilateral hearing loss Factual Background & Analysis For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the puretone threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The results of the January 2018 VA audiological examination confirm that the Veteran has impaired hearing in both ears for VA compensation purposes. During the April 2020 virtual hearing the Veteran asserted that his bilateral hearing loss is causally related to exposure to engine noise from aircraft without hearing protection while working on flight lines during service. The Veteran further explained that he flew 18-hour long missions where the engine noise was so loud that the crew had to communicate via headsets. He stated that he flew 156 combat missions and that he was told by his audiologist that he had traumatic hearing loss at some point during his lifetime. The Veteran is competent to report the onset and continuation of his bilateral hearing loss and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing and finding all reasonable doubt in favor of the Veteran, the Board finds that the elements of service connection for bilateral hearing loss have been met and service connection is warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.