13-21 423
13-21 423
| Board of Vet. App. | Sep 18, 2017Background
- Veteran served active duty Mar 1964–Mar 1968, including service at U‑Tapao Air Base, Thailand (Feb–Apr 1967) as a jet engine mechanic.
- Veteran alleges exposure to herbicides (Agent Orange) on base perimeter and noise exposure from jet engines; submitted lay statements and testified at a 2016 hearing.
- Medical records show diagnoses of coronary artery disease (ischemic heart disease) and type II diabetes mellitus; also historical audiograms with mixed findings and later complaints of tinnitus and hearing loss.
- VA regulations and guidance (38 C.F.R. §§ 3.307, 3.309 and M21‑1MR) afford a presumption of herbicide exposure for certain Thailand base perimeter service, and list ischemic heart disease and type II diabetes as herbicide‑associated diseases.
- Board found Veteran’s testimony and service duties credible and acknowledged herbicide exposure on a facts‑found basis; concluded presumptive service connection for ischemic heart disease and type II diabetes.
- Claims for bilateral hearing loss and tinnitus were not finally decided: the Board found existing VA audiology opinions inadequate and REMANDED for further development (addendum opinion or exam, readjudication).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — ischemic heart disease (herbicide exposure) | Veteran contends CAD caused by in‑service herbicide exposure while stationed at U‑Tapao | RO previously denied; contested nexus/exposure or insufficient proof at earlier stages | Granted: Board found credible evidence of herbicide exposure and current CAD; presumptive service connection under 38 C.F.R. §§ 3.307/3.309 |
| Service connection — type II diabetes mellitus (herbicide exposure) | Veteran contends diabetes caused by in‑service herbicide exposure | RO previously denied; contested nexus/exposure or insufficient proof at earlier stages | Granted: Board found exposure and current diagnosis; presumptive service connection under 38 C.F.R. §§ 3.307/3.309 |
| Service connection — bilateral hearing loss (noise exposure) | Veteran contends service noise as jet mechanic caused/aggravated hearing loss | VA relied on VA exam opinions finding audiogram history inconsistent and that noise nexus unlikely; existing exams found inadequate by Board | REMANDED: Inadequate opinions; ordered VA to obtain/addendum exam addressing exposure, aggravation, and natural progression |
| Service connection — tinnitus (noise exposure) | Veteran contends tinnitus caused by service noise | VA examiners opined tinnitus unlikely related to service noise (pattern/frequency inconsistent); exams found inadequate by Board | REMANDED: Ordered further development/exam addressing nexus to service noise and full rationale |
Key Cases Cited
- Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007) (discussing VA duties to notify/assist where decision is fully favorable so detailed analysis of notice/assistance need not be repeated)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent to establish presence of observable symptoms)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence may support presence of disability even without contemporaneous medical evidence)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required to establish service connection)