Citation Nr: 21042609 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-23 132 DATE: July 13, 2021 ORDER Entitlement to service connection for diabetes mellitus is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT 1. While stationed at Takhli and Korat Royal Thai Air Force Bases in Thailand during the Vietnam era, the Veteran served near the air base perimeter. In-service herbicide agent exposure is conceded. 2. The Veteran has diabetes mellitus. CONCLUSION OF LAW Diabetes mellitus may be presumed to have been incurred in service as due to herbicide agent exposure. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1972. In June 2019, the Board denied entitlement to service connection for a bilateral hearing loss disability and entitlement to service connection for diabetes mellitus. In February 2021, the United States Court of Appeals for Veterans Claims (CAVC or the Court) issued an Order that granted a Joint Motion for Partial Remand and vacated that Board decision. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). 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; 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). 1. Diabetes mellitus The Veteran seeks service connection for diabetes mellitus due to in-service exposure to herbicide agents while stationed at Takhli and Korat Royal Thai Air Force Bases in Thailand. Various post-service treatment records show a diagnosis of and treatment for diabetes mellitus since July 2009. Military personnel records show that the Veteran was stationed at Takhli and Korat Air Force Bases in Thailand from 1970 to 1971. Personnel records, including performance reviews, show that the Veteran worked on jet engines, which he asserts required him to be present on a section of the flight line near the base perimeter. See, e.g., October 2015 statement. Further, his duties included working at a trim pad, which was also located near the perimeter of both bases, and which had no foliage due to chemical spraying. See, e.g., id. The Veteran and a Mr. W. G, who submitted a statement dated in March 2021 and who served with the Veteran in Thailand, both noted that the trim pad was next to the perimeter of the base. The area was devoid of all vegetation due to the spraying of herbicide agents. The Veteran worked 12 hours shifts daily without any bathroom facilities, causing him and his fellow crewmembers to relieve themselves at the blast fence behind the aircraft, which required them to walk along, or very near to, the base perimeter. A disease associated with exposure to certain herbicide agents will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases (including diabetes mellitus) shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). The Compensation Service has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. See VBA Manual M21-1. The M21-1 adjudication manual provides that if a veteran served at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang during the Vietnam Era as a security policeman, security patrol 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 evaluations, or other credible evidence, then herbicide exposure should be conceded on a direct or facts-found basis. See VBA Manual M21-1. In Overton v. Wilkie, 30 Vet. App. 257 (2018), the Court acknowledged that the Board has no duty to apply non-binding M21-1 provisions, but recognized that the adoption of a procedure or consideration in a comprehensive guidance manual, even if it is not binding as a matter of substance, amounts to a tacit acknowledgment by VA that such consideration or procedure is relevant to an adjudication that implicates it. Instead, the M21-1 constitutes a relevant factor and so the Board cannot ignore the M21-1 in its analysis but must instead provide reasoning for declining to follow the provision. See Healy v. McDonough, 33 Vet. App. 312, 320 (2021). The Veteran's description of his work duties appears to be consistent with the evidence of record, to include personnel records. The Board finds the Veteran's and Mr. W.G.'s assertions to be credible and consistent with his personnel records. The Board accepts the Veteran's assertion that his duties took him near the perimeter of the base, namely working on the trim pad located near to the base perimeter and flight line. There is no evidence of record to contradict the Veteran's statements and the Board concludes that while stationed at Korat and Takhli, the Veteran served near the air base perimeter. As such, with consideration of the M21-1, discussed above, in-service herbicide exposure is conceded on a direct or facts found basis. As herbicide agent exposure has been acknowledged in this case and the Veteran is shown to have diabetes mellitus, the Board finds that service connection on a presumptive basis is warranted and is therefore granted. 38 C.F.R. § 3.309(e). REASONS FOR REMAND 1. Bilateral hearing loss disability The prior Board's order section erroneously listed service connection for a hearing loss disability as being granted. A rating decision dated in July 2019 effectuated the erroneous grant. However, the Board issued an additional order which corrected the prior Board decision to show that service connection for a hearing loss disability was denied. The Regional Office at this time has not taken action consistent with the corrected Order. The prior Board denial relied upon an August 2015 VA examination report. The examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or the result of military service. The rationale was that there was no significant change of hearing from enlistment to separation. The JMPR noted that the Board erred in relying upon the VA examination report, as hearing loss need not be shown in service to establish service connection. The examiner also did not offer any support for his determination that the threshold shifts that the Veteran did experience in-service were not significant and did not discuss the Veteran's testimony regarding continuity of symptomatology. Given the above, an additional opinion is necessary The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for a bilateral hearing loss disability. The examiner is asked whether a bilateral hearing loss disability is at least as likely as not (50 percent or greater probability) due to service. If the examiner finds in-service threshold shifts for the Veteran were not significant, the examiner must provide support for this determination. The examiner should also consider testimony the Veteran's statements regarding continues symptoms since service. Provide a complete rationale to support all opinions offered. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.