Citation Nr: 22017485 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-02 035 DATE: March 25, 2022 ORDER Entitlement to service connection for a heart disorder, to include as secondary to exposure to herbicide agents, is granted. Entitlement to service connection for diabetes mellitus type II (DM II), to include as secondary to exposure to herbicide agents, is granted. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder, is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The evidence is in approximate balance as to whether the Veteran served in Taiwan from February 1968 to March 1968, during which time he participated in airlift operations to the Republic of Vietnam. 2. With resolution of any reasonable doubt in the Veteran's favor, he is presumed to have been exposed to herbicide agents in the Republic of Vietnam during the Vietnam era. 3. The Veteran's heart disorder diagnosed as coronary artery disease is related to in-service exposure to herbicide agents. 4. The Veteran's DM II is related to in-service exposure to herbicide agents. 5. The Veteran is currently diagnosed with hypertension and epidemiologic evidence supports a positive association between hypertension and exposure to herbicide agents, including Agent Orange. CONCLUSIONS OF LAW 1. The criteria to establish service connection for coronary artery disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for DM II are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria to establish service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to November 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was last before the Board in August 2019. This matter has now been returned to the Board for further appellate consideration. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Claims Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a present 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including diabetes mellitus and ischemic heart disease (including atherosclerotic cardiovascular disease such as coronary artery disease (CAD) and coronary bypass surgery), even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore and other locations, if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. In addition to the presumptive grant of service connection associated with Vietnam veterans with certain disabilities, VA must also consider as to if specific exposure to herbicides existed in any Veteran who claims such exposure, and must consider the claim as one for service connection on a direct basis. For those veterans who served in the territorial boundaries of Vietnam during the period of hostilities, service connection for DM II and/or CAD will be granted on a presumptive basis on account of presumed exposure to tactical herbicides in that nation. See 38 C.F.R. §§ 3.307, 3.309. No such provision exists regarding those Veterans who served in Taiwan; however, if the Veteran in this case is able to demonstrate exposure to herbicide agents on a direct basis, the etiological association noted in the presumptive regulatory language can also be considered as supporting a claim on a direct basis. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Question of Herbicide Agent Exposure In Service Personnel records demonstrate that the Veteran was stationed in Ching Chuan Kang Air Base (AB), Taiwan, from February 1968 to March 1968 as an aircraft mechanic. The Veteran has continuously contended that he was a crew chief on C-130 model aircraft, which flew into Vietnam to deliver supplies and cargo. In September 2013, he recalled flying to Bien Hoa, Cam Ranh, DaNang, Nha Trang, Pleiku, Tan Sou Nhut, and Tuy Hoa ABs. He also took supplies to small military bases with dirt runways, although he did not know the names of those remote bases. In March 2017, he stated that he flew many times from Taiwan into South Vietnam, where he stayed from a period of a day to up to a week, depending on the situation and mission. C-130 planes and crews were on a regular rotation for supply flights from Ching Chuan Kang, Taiwan, to South Vietnam, Thailand, and other related areas. The Veteran also submitted statements from fellow servicemembers who served with him in Taiwan and knew about his flights to Vietnam. In January 2012, the Veteran submitted a sworn statement from J.G.H., dated April 2009, in which he stated that he was stationed at Ching Chuan Kang AB, Taiwan, in 1968 with the Veteran. They were both flying crew chiefs on C-130 model aircraft. During their overseas duty, each was sent many times to the Republic of Vietnam, including Cam Ranh Bay, DaNang, Thui Hoa, Natrang, and others. While at these bases, they offloaded various cargo, including hazardous materials, ammunitions, and other cargo assigned. These tours were anywhere from two days to three weeks in duration. On one occasion in June 1968, he met the Veteran on the flightline at Thui Hoa, Vietnam, and spent two days working on their planes before the Veteran could return to Taiwan. As such, he attested that the Veteran was in the Republic of Vietnam during his tour of service from February 1968 to November 1968 while stationed at Ching Chuan Kang AB, Taiwan. In December 2016, the Veteran submitted a statement by J.W.W., dated November 2016, in which he stated that he was stationed at Ching Chuan Kang AB in 1968 with the Veteran, who was also assigned to the same barracks. J.W.W. performed turbo prop maintenance on C-130 aircraft while the Veteran was a crew chief on C-130 aircraft and flew many rotations on temporary duty orders into Vietnam, which lasted from two days to two weeks. The Veteran flew into Tuy Hoa, Ton Son Nhut, DaNang, Bein Hoa, Cam Ranh Bay, and Pleiku. When he returned back to base, he shared many stories while they sat around the barracks of events and extreme danger that happened. A December 2016 email correspondence from R.Z. reflects that he served with the Veteran from February 1968 until his discharge in September 1968, during which time they were stationed in Taiwan at Ching Chuan Kang AB. They were roommates in a one-story barracks on base and both assigned to the tactical airlift wing of PACAF. They were required as crew chiefs on C-130 E models to fly on many trips into and out of Vietnam, including to Tuy Hoa, Ben Hoa, Cam Rahn Bay, and DaNang. These bases were also take-off points for other U.S. Air Force planes that were used to spray defoliants over the jungle (Agent Orange). The Board finds that the evidence is in approximate balance with regard to whether the Veteran was present in the Republic of Vietnam during the presumptive period. Although VA issued a memorandum of formal finding of a lack of information required to corroborate herbicide agent exposure in August 2013, an October 2020 Records Research Response reflects that the Veteran was assigned to the 50th Tactical Airlift Squadron (PACAF) and stationed at Ching Chuan Kang, AB, Taiwan, from April 1967 to July 1967. Histories reported that to accomplish the combined airlift-tactical missions, the main operations location remained at Ching Chuan Kang AB with the 50th TCS. Initial in-country stage points were Tan Son Nhut, Nha Trang, and DaNang ABs, all in the Republic of Vietnam. The in-country operation was initially based in Nha Trang for the tactical/airlift missions and at DaNang for the Airborne Battlefield Command Control Center missions. The histories further reported that during the six-month period, the 50th TCS flew an estimated 7,345 sorties and 14,422 flying hours. During the period, Cam Ranh Bay became the in-country shuttle base, replacing Nha Trang, which was too space-restricted for operational requirements. In Vietnam, crews continued to operate out of a wide variety of prepared and unprepared strips. Long days and turnaround delays at Cam Ranh Bay had some effect on aircraft efficiency, especially fatigue. Airlift operations in the Republic of Vietnam and Thailand continued to increase over previous reporting periods. However, the histories were negative and did not report on or discuss the 50th TAS' aircraft carrying Agent Orange or tactical herbicides or unit personnel being exposed to Agent Orange or tactical herbicides while flying on unit aircraft to bases in the Republic of Vietnam during the specified time periods. The histories also did not report on or identify unit personnel who may have traveled to the aforementioned locations in the Republic of Vietnam. Although the Records Research Response found that the histories did not identify unit personnel who traveled to the Republic of Vietnam, the Veteran's report of doing is competent and is corroborated by the statements of J.G.H. and R.Z., who either flew with or had similar responsibilities as the Veteran, and J.W.W., who had knowledge of the Veteran's orders to travel into Vietnam and heard firsthand of the Veteran's experiences upon his return. As reflected above, the favorable and unfavorable evidence with regard to his presence in Vietnam during service is in relative equipoise. Resolving any reasonable doubt in the Veteran's favor, the evidence supports his report of flying from Ching Chuan Kang AB in Taiwan to different air bases in Vietnam with cargo, including ammunition, bombs, fuel, medical supplies, hazardous materials, and troops. Those missions ranged from a day to weeks. Therefore, the Veteran is found to have been presumptively exposed to herbicide agents during his duties to the Republic of Vietnam from Taiwan. 1. Entitlement to service connection for a heart disorder, to include as secondary to exposure to herbicide agents The Veteran has been diagnosed with coronary artery disease, status post subendocardial myocardial infarction, and ischemic cardiomyopathy. See 8/24/00 private treatment record. He had a coronary bypass grafting of five arteries. As the Veteran has been diagnosed with a disease (coronary artery disease) presumptively associated with exposure to herbicide agents in Vietnam, and his exposure has been established herein, entitlement to service connection for CAD is warranted on a presumptive basis. 2. Entitlement to service connection for DM II, to include as secondary to exposure to herbicide agents The Veteran was diagnosed with DM II in June 2004, at which time he reported being diagnosed 18 months prior. See 6/2/04 VA treatment record. As the Veteran has been diagnosed with a disease (DM II) presumptively associated with exposure to herbicide agents in Vietnam, and his exposure has been established herein, entitlement to service connection for DMII is warranted on a presumptive basis. 3. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicide agents In his January 2012 claim application and his December 2016 VA Form 9, the Veteran contended that his hypertension was secondary to his heart disorder, which was due to exposure to herbicide agents while performing duties in the Republic of Vietnam when stationed at Ching Chuan Kang AB, Taiwan. The evidence reflects a diagnosis of hypertension. See 2/6/12 private treatment record; 2/15/13 VA treatment record. Unlike the coronary artery disease and DM II, hypertension is not listed as a disease presumptively associated with herbicide agent exposure per VA regulation. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). However, on November 15, 2018, the National Academies of Sciences, Engineering, and Medicine moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category, indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange. See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018). The Board finds this review highly probative in establishing a nexus between the Veteran's diagnosed hypertension and his established herbicide exposure. Notably, there are no contradictory opinions of record. Therefore, based on this relatively new epidemiologic evidence, the Board finds that there is sufficient scientific evidence to etiologically link the Veteran's hypertension to his established exposure to herbicide agents during service. Accordingly, the Board has found that all elements of service connection for hypertension are met, and service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, is remanded. Remand of the claim for an acquired psychiatric disorder is required to obtain a new VA compensation examination. The Veteran was provided a VA examination in February 2020 and the examiner determined that the Veteran's claimed psychiatric disorder is less likely as not related to service. However, the opinions are inadequate to the extent that they do not address other psychiatric diagnoses reflected in the treatment records. Although the Veteran was diagnosed with bipolar disorder (see 8/19/00 private treatment record; 6/2/04, 3/1/13, 9/9/19 VA treatment records), he was also assessed with anxiety in January 2017 and a mood disorder in June 2017. Unfortunately, the February 2020 VA examiner did not address these additional diagnoses. The examiner also based the negative opinion on the fact that the Veteran had a major depressive episode around the age of 55 or 56 in 2003 and that there was no report of manic, hypo-manic, or major depressive symptoms during or immediately following service. However, an August 2000 private treatment record reflects an episode of atypical depression five years prior, in about 1995. The examiner also did not consider the Veteran's statements in his December 2016 VA Form 9 in which he reported a noticeable personality change after returning from overseas duty and noted his spouse's report of the "lease little thing" causing a "violent reaction" after his return home. Even at the February 2020 VA examination, he stated that he developed a very short temper and would break things upon his return from Southeast Asia, as well as problems with irritation, poor anger management, and depression. The examiner did not address or discuss these symptoms or problems. As such, a remand is required to adequately evaluate the etiology of the Veteran's acquired psychiatric disorder. 2. Entitlement to service connection for a bilateral hearing loss disability is remanded. A remand is necessary to obtain another VA opinion. As an initial matter, a current bilateral hearing loss disability per VA regulation is demonstrated. See January 2020 VA examination report. Moreover, the Veteran contends that his MOS as an aircraft mechanic exposed him to high noise levels during service. A July 2013 VA examiner determined that the Veteran's hearing loss is less likely as not related to service based heavily on the fact that the Veteran had a normal audiogram both at enlistment and separation; this rationale is not adequate as it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In other words, the absence of treatment or symptoms in service is not necessarily fatal to the claims for service connection. Additionally, a January 2020 VA examiner also provided an unfavorable opinion but reasoned that there was no significant permanent shift (decrease) in hearing thresholds from the entrance examination to the separation examination. Additionally, there was no report of, complaint of, or treatment for hearing decrease in the service treatment records (STRs) or at separation from service. The examiner also noted that the Veteran stated that his current hearing loss was caused by everyday noise as opposed to in-service noise exposure. Again, although more detailed this time, the examiner's rationale is still primarily based on the absence of treatment or symptoms in service. Moreover, the Veteran in his January 2022 appellate brief contended that the February 2020 VA examiner failed to consider delayed onset hearing loss. Accordingly, a new VA medical opinion to more completely and adequately address the nature and etiology of the Veteran's bilateral hearing loss is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any relevant updated treatment records. 2. Provide a comprehensive VA examination by a psychiatrist or psychologist to determine the etiology of the Veteran's claimed acquired psychiatric disorder, to include PTSD, anxiety, bipolar disorder, and a mood disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *An August 2000 private treatment record reflecting an episode of atypical depression five years prior and an assessment of bipolar affective disorder type II with no history of psychosis. *A February 2003 private treatment record reflecting that the Veteran was switched to Depakote and felt better. *A July 2012 negative VA PTSD screening test. *A March 2013 VA treatment record reflecting a long history of bipolar disorder. * April 2013 Statements in Support of Claim for Service Connection for PTSD in which the Veteran described pain and suffering he witnessed while in Vietnam in 1968 when he had to transport the dead to different bases in Vietnam, flying with a full load of 500-pound bombs and delivering them while mortar rounds were hitting ahead of the plane, unloading metal coffins off a plane, and inspecting a plane on the flight line for repairs in February 19678 and counting 234 bullet holes that required repair. *His December 2016 VA Form 9 in which the Veteran reported noticeable personality changes after returning from overseas duty and his spouse's report of the "least little thing" causing "a violent reaction" after his return home. *A January 2017 VA treatment record reflecting an assessment of bipolar disorder and anxiety. *A June 2017 VA treatment record reflecting an assessment of a mood disorder. *A February 2020 VA examination report. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: a) Confirm all psychiatric diagnoses, to include PTSD, anxiety, bipolar disorder, and mood disorder, that meet the DSM-5 criteria and, if possible, the onset of such. b) For each diagnosis, provide an opinion as to whether it at least as likely as not (at least an approximate balance of positive and negative evidence) had its onset during active service or was caused by, aggravated by, or otherwise related to service. *The examiner should address transporting and unloading the deceased, making deliveries of cargo with mortar rounds hitting ahead, and inspecting a plane on the flight line that had over 200 bullet holes.* A complete rationale should be provided for any opinion provided. 3. Schedule the Veteran for a VA examination by an audiologist to determine the etiology of the Veteran's claimed bilateral hearing loss. The claims file, and a copy of this remand, will be available to and reviewed by the examiner. Although a complete review of the record is imperative, attention is called to the following: *STRs including the February 1967 enlistment examination report, June 1967 audiometric data, and November 1968 separation examination report. *An April 2009 VA hearing evaluation. *The January 2012 claim application in which the Veteran reported that his bilateral hearing loss began in January 1968. *A July 2013 VA examination report. *An August 2014 VA audiogram. *The December 2016 VA Form 9 in which he contended that he suffered severe hearing loss due to working on or around turbo prop engines on a daily basis during service as a mechanic. *The January 2020 VA examination report. *The Veteran's January 2022 appellate brief in which he indicated that he had delayed onset hearing loss. After reviewing the claims file in its entirety and examining the Veteran, if necessary and possible, the examiner is asked to address the following with complete rationale: Provide an opinion as to whether the Veteran's claimed bilateral hearing loss at least as likely as not (at least an approximate balance of positive and negative evidence) was incurred in, caused by, aggravated by, or otherwise related to service, to include in-service noise exposure due to his MOS as an aircraft mechanic. (Continued on the next page) A complete rationale should be given for any opinion rendered. 4. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee, 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.