Citation Nr: 1307657 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-33 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from September 1966 to June 1969. This matter is before the Board of Veterans' Appeals on appeal of rating decisions of April 2008 and November 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Board remanded the claims for further development. As the development has been completed, no further action is needed to ensure compliance the Board's remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained medical expert opinions from the Veterans Health Administration. The Veteran and his representative were provided copies of the opinions and afforded the opportunity to submit additional evidence and argument. FINDINGS OF FACT 1. A bilateral hearing loss disability was not affirmatively shown to have been present; a bilateral hearing loss disability of the sensorineural type was not manifested to a compensable degree within one year from the date of separation from active duty; and a bilateral hearing loss disability, first diagnosed after the period of active duty beyond the one-year presumptive period for sensorineural hearing loss as a chronic disease, is unrelated to noise exposure during active duty. 2. Tinnitus was not affirmatively shown to have had onset during service; tinnitus, first diagnosed after service, is unrelated to an injury, disease, or event in service. 3. Diabetes mellitus, type 1, was not affirmatively shown to have been present during service; diabetes mellitus, type 1, was not manifested to a compensable degree within one year from the date of separation from service in January 1965; diabetes mellitus, type 1, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service; diabetes mellitus, type 1, is not a disease presumed to be due to exposure to Agent Orange; and diabetes mellitus, type 1, is not actually caused by exposure to Agent Orange. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service and service connection for a bilateral hearing loss disability may not be presumed based on the one-year presumption for a chronic disease, following service. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 303 (2012). 3. Diabetes mellitus, type 1, was not incurred in or aggravated by service, service connection for a diabetes mellitus, type1, may not be presumed based on the one-year presumption for a chronic disease, following service, and service connection for a diabetes mellitus, type1, may not be presumed based on exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 303, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in August 2007. The notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded VA examinations in February 2008 and in April 2011. In November 2012 the Board obtained expert opinions from the Veterans Health Administration (VHA) in otology and endocrinology. As the opinions of the VHA experts contain a history, a review of the significant facts of the case, analysis, and rationale to support the conclusions reached in the opinions, the opinions are adequate as the Board can rely on the opinions to make a fully informed decision on the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. §§ 1110 (wartime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Impaired hearing will be considered to be a disability for the purpose of VA disability compensation when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including sensorineural hearing loss or for diabetes mellitus, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). A Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicides, including a herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. If a Veteran is presumably exposed to Agent Orange under, there is a presumption of service connection for diabetes mellitus, type 2. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Service Connection for a Bilateral Hearing Loss Disability and for Tinnitus Evidence The Veteran served on active duty from September 1966 to May 1969. The Veteran's hearing was tested three times in service, presumably ASA units were used on the entrance audiograms in August1966 and that ISO units were used in June1968 and in April 1969. The audiogram results in 1966 have not been converted to the ISO units: On entrance audiogram in August 1966, the puretone thresholds at 500, 1000, 2000, and 4000 Hertz were, for the right ear, -5,-5, -5, and -5, and, for the left ear, 0, -5, 10, and -5. On an audiogram in June 1968, the puretone thresholds at 500, 1000, 2000, and 4000 Hertz were, for the right ear, 0, 0, 0, and 5, and, for the left ear, 5, 15, 5, and 15. On separation examination, an audiogram in April 1969 showed that the puretone thresholds at 500, 1000, 2000, and 4000 Hertz were, for the right ear, 5, 0, 0, and 10, and, for the left ear, 0, 0, 0, and 5. The service treatment records contain no compliant, finding, history, treatment, or diagnosis of tinnitus, including on separation examination. After service, the first documentation of hearing loss is in a private evaluation in March 1996. Audiometric test results showed that at 500, 1000, 2000, and 4000 Hertz, the puretone thresholds in the right ear were 20, 25, 40, and 65 and, for the left ear,15, 20, 30, and 35. Speech discrimination scores were 88 percent for the right ear and 100 percent for the left ear. In April 1996, the Veteran complained of ringing in the right ear for four months. After an Auditory Brainstem Response (ABR) test, the findings suggested a retrocochlear disorder on the right side. In January 1999, audiometric test results showed that at 500, 1000, 2000, and 4000 Hertz, the puretone thresholds in the right ear were 20, 30, 45, and 70 and, for the left ear, 5, 15, 35, and 30. Speech discrimination scores were 90 percent for the right ear and 96 percent for the left ear, although it is unclear if these results are from the Maryland CNC test. The Veteran complained of tinnitus. In 2006, private medical records included tinnitus of since 1991. In September 2007, a MRI for ear pain, hearing loss, and tinnitus was essentially normal. On an audiogram, at 500, 1000, 2000, 3000, and 4000 Hertz, the puretone thresholds in the right ear were 60, 60, 50, 60, and 65 and, for the left ear, 25, 20, 50, 45, and 45. The impressions were tinnitus and asymmetrical sensorineural hearing loss. In a statement in July 2007, the Veteran stated that his tinnitus and hearing loss could have resulted from his exposure to mortar rounds and helicopter noise during his tour in Vietnam. In August 2007, the Veteran stated that he traveled by Jeep and helicopter while in Vietnam and that he was exposed to deafening mortar rounds. He stated that he suffered a sudden hearing loss and ringing in his ears in 1990 and that the noise exposure in service contributed to hearing loss and tinnitus. In June 2008, the Veteran stated that his hearing damage may not have shown up for years after his service, and that he suffered from tinnitus before he sought treatment in 1996. In March 2009 in the notice of disagreement, the Veteran stated that he was only exposed to loud noises during service. In April 2011, the Veteran stated that he trained with weapons during basic training and infantry training and that he had visited several locations by helicopter during his service in Vietnam. He stated that tinnitus began during service, but was not diagnosed until 1996. On VA examination in February 2008, the Veteran stated that he began suffering from tinnitus in 1987. He denied post-service occupational or recreational noise exposure. The audiometric test results showed that at 500, 1000, 2000, 3000, and 4000 Hertz, the puretone thresholds in the right ear were 55, 60, 55, 55, and 70 and, for the left ear, 15, 20, 40, 45, and 40. Speech discrimination in the right ear was 64 percent and 92 percent in the left ear. The diagnosis was sensorineural hearing loss. In an addendum in April 2008, the VA examiner, an audiologist, expressed the opinion that the Veteran's hearing loss and tinnitus were less likely than not related to his active service. The VA examiner stated that the Veteran's hearing was within normal limits on entrance and separation examinations, that the Veteran had no complaint of tinnitus in service, and that the Veteran had stated that tinnitus began in 1987, 20 years after service. In June 2008, a private audiologist stated that the Veteran was exposed to noise from mortar fire and helicopters during service and that the Veteran had normal hearing on entrance and separation from service, but that there was a significant threshold shift, 10dB or more, across the frequency range in each ears. The private audiologist stated that the Veteran had no significant post-service noise exposure. The private audiologist concluded that it was at least as likely as not that hearing loss and tinnitus were contributed to by excessive noise exposure in service. On VA examination in April 2011, the VA examiner, an audiologist, stated that the Veteran's hearing loss and tinnitus were less likely as not a result of military noise exposure. The VA examiner stated that the Veteran's hearing was within normal limits during service. The diagnoses were sensorineural hearing loss and tinnitus. In November 2012, the Board obtained a VHA expert opinion from an otologist. After a review of the record, the VHA expert expressed the opinion that it was not likely that the Veteran's hearing loss and tinnitus were caused by noise exposure in service. The VHA expert stated that tinnitus was not exclusively associated with noise-induce hearing loss, but with hearing loss of any cause. The VHA expert stated that the Veteran's sudden hearing loss in his right ear in 2008 was not consistent with progressive hearing loss caused by noise exposure. In addendum in December 2012, the VHA expert stated that it was less likely than not that hearing loss was the result of noise exposure in service because there was no evidence of hearing loss on discharge from service and for 27 years after service with no evidence of hearing loss in the interim. The VHA expert stated that the medical principles to support the conclusion were that hearing loss does not develop 30 years after the noise exposure without continued noise exposure and while hearing loss may be cumulative there was no evidence of impaired hearing in service. Also, the VHA expert stated that the pattern of hearing loss in 1996 was not consistent with noise-induced hearing loss rather the pattern was moor more consistent with presbycusis. Analysis Hearing Loss Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, the standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI), which is the standard used by VA and in 38 C.F.R. § 3.385. In order to facilitate data comparison, the ASA standards must be converted to the ISO-ANSI standards. Normal hearing is from 0 to 20 decibels, and higher levels indicate some degree of impaired hearing loss, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. See Hensley v. Brown, 5 Vet. App. 157 (1993). On the basis of the service treatment records alone, a hearing loss disability under 38 C.F.R. § 3.385 was not affirmatively shown to have been present during service and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not warranted. Nevertheless, service connection may be established by chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b) or on the basis of an initial diagnosis after service, when all the evidence establishes that the disability was incurred in service under 38 C.F.R. § 3.303(d). Here chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do apply, because a hearing loss disability of the sensorineural type is a chronic disease (a disease of the central nervous) enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). See _ F.3d _ Walker v. Shinseki, 2011-7184, WL 628429 (Fed. Cir. Feb. 21, 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38C.F.R. §§ 3.303(b), 3.309(a)). As for chronicity, in the absence of any complaint, finding, history, symptom, treatment, or diagnosis of impaired hearing during service, the service treatment records lack the documentation of the combination of manifestations sufficient to identify a hearing loss disability under 38 C.F.R. § 3.385 and sufficient observation to establish chronicity during service. As the Veteran is competent to describe impaired hearing, which is within the realm of the Veteran's personal experience, his statement that he had impaired hearing is admissible evidence. 38 C.F.R. § 3.159 (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); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). While the Board finds that the Veteran is competent to describe symptoms of impaired hearing, as it does not necessarily follow that there is a relationship between the current hearing loss disability and the continuity of symptomatology that the Veteran avers, and as a hearing loss disability is not a condition under case law that has been found to be capable of lay observation, the determination as to the presence or diagnosis of such a disability therefore is medical in nature and competent medical evidence is needed to substantiate the claim. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent) rev'd on other grounds by _ F.3d _ Walker v. Shinseki, 2011-7184, WL 628429 (Fed. Cir. Feb. 21, 2013). Also under certain circumstances, the Veteran as lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency is a question of fact, which is to be addressed by the Board. A hearing loss disability is not a simple medical condition because the diagnosis is based on results of audiology testing that meet the standards of hearing loss disability under 38 C.F.R. § 3.385. For this reason, the Board determines that a hearing loss disability under 38 C.F.R. § 3.385 is not a simple medical condition that the Veteran is competent to identify. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify a hearing loss disability by audiogram under 38 C.F.R. § 3.385. Where, as here, there is a question of a diagnosis, not capable of lay observation, and a hearing loss disability is not a simple medication condition, the Veteran is not competent to state that the current ear hearing loss disability under 38 C.F.R. § 3.385 was present during service. To this extent the Veteran's statements testimony are excluded, that is, not admissible as evidence favorable to claim. Also, to the extent the Veteran has expressed an association between the current hearing loss disability and service, the Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized knowledge, education training, or experience. As the Veteran as a lay person is not competent to declare either the presence or diagnosis of a hearing loss disability under 38 C.F.R. § 3.385 based on personal observation, any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between a hearing loss disability and service. As the Board does not find the Veteran competent to establish a diagnosis or to express an opinion on the origin or cause of the current hearing loss disability under 38 C.F.R. § 3.385, the Board need not reach the question of whether or not the Veteran's statements are credible. After service, a hearing loss disability was not documented until 1996, well beyond the one-year period after separation from service in 1969 for presumptive service connection for sensorineural hearing loss as a chronic disease and service connection under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309 is not warranted. As for the Veteran describing a contemporaneous medical diagnosis, there is no evidence that a medical professional diagnosed a hearing loss disability before 1996. As for symptoms that later support a diagnosis by a medical professional, there is evidence for and against the claim. In June 2008, a private audiologist stated that the Veteran was exposed to noise from mortar fire and helicopters during service and that the Veteran had normal hearing on entrance and separation from service, but that there was a significant threshold shift, 10dB or more, across the frequency range in each ears. The private audiologist stated that the Veteran had no significant post-service noise exposure. The private audiologist concluded that it was at least as likely as not that hearing loss and tinnitus were contributed to by excessive noise exposure in service. The evidence against the claim consists of the opinions of VA examiners, audiologist, and VHA expert, an otologist, that hearing loss was not the result of noise exposure in service. The VA examiners and the VHA expert accounted for the significant facts of the case to reach the conclusion submitted in the opinions, and the opinions are persuasive evidence against the claim. The opinion of the private audiologist is based on a threshold shift in service, but any threshold shift was still within the range of normal hearing. As the conclusion reached in the opinion is not factual supported by evidence, the Board finds that the opinion lacks probative value. Considering the merits of the analysis and the details of the opinions, the Board places more weight on the opinions of the VA examiners and VHA expert, which were based on medical analysis applied to the significant facts of case, than the opinion of the private audiologist. Tinnitus On the basis of the service treatment records alone, tinnitus was not affirmatively shown to be present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. Unlike a hearing loss disability, tinnitus is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Also unlike hearing loss, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because tinnitus is not a chronic disease enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). See _ F.3d _ Walker v. Shinseki, 2011-7184, WL 628429 (Fed. Cir. Feb. 21, 2013). Nevertheless, service connection may be established on the basis of an initial diagnosis after service, when all the evidence establishes that the disability was incurred in service under 38 C.F.R. § 3.303(d). Although the Veteran is competent to declare that he has tinnitus, where, as here, the determinative issue involves a question of a medical nexus or medical causation, competent medical evidence is required to substantiate the claim unless the Veteran's lay opinion is found to be competent evidence. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson, at 1316. And the Veteran is competent to assert that his tinnitus is related to service. But the evidence also shows that the Veteran's statements as to the onset of tinnitus have been inconsistent. After service in April 1996 the Veteran complained of ringing in the right ear for four months. In 2006, private medical records included tinnitus since 1991. In August 2007, the Veteran stated that suffered a sudden ringing in his ears in 1990. In June 2008, the Veteran stated that he suffered from tinnitus before he sought treatment in 1996. In April 2011, the Veteran stated that tinnitus began during service, but was not diagnosed until 1996. On VA examination in February 2008, the Veteran stated that he began suffering from tinnitus in 1987. To the extent that the Veteran asserts that tinnitus began in service the Board finds the statements not credible because of the Veteran's inconsistent statements and the statements are inconsistent with other evidence of record, namely, no complaint, finding, history, treatment, or diagnosis of tinnitus in service, including on separation examination. As the Veteran's lay evidence is not credible, the lay evidence has no probative value. As for the medical evidence, there is evidence favorable to the claim and evidence against the claim. In June 2008, a private audiologist stated that it was at least as likely as not that tinnitus was contributed to by excessive noise exposure in service. The evidence against the claim consists of the opinion of one VA examiner, who stated that tinnitus was less likely than not related to service. The VA examiner stated that the Veteran had no complaint of tinnitus in service, and that the Veteran had stated that tinnitus began in 1987, 20 years after service. A second VA examiner stated that tinnitus was less likely as not a result of military noise exposure. A VHA expert also expressed the opinion that it was not likely that the tinnitus were caused by noise exposure in service and that tinnitus was not exclusively associated with noise-induce hearing loss. Considering the merits of the analysis and the details of the opinions, the Board finds that the opinions of the VA examiners and the VHA expert are more persuasive than the opinion of the private audiologist, because the opinion private audiologist was based in part on lay evidence, which the Board does not fins to be credible. For these reasons, the preponderance of the evidence is against the claims of service connection for a bilateral hearing loss and tinnitus, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Diabetes Mellitus During the Vietnam era, the Veteran served in Vietnam, where it is presumed that the Veteran was exposed to certain herbicides, including Agent Orange. Diabetes mellitus, type 2, is a disease subject to presumptive service connection, for a Veteran, who served in Vietnam in Vietnam era. Diabetes mellitus, type 1, is not a disease subject to presumptive service connection. The record shows that the Veteran was diagnosed with diabetes in about 1984 or 1985, when he was 38 or 39 years old. The Veteran has stated the physician who diagnosed the diabetes started him on insulin, but only told him that he had diabetes. The Veteran has notified VA that the records of the physician who made the diagnosis were not available. The available medical records show diagnoses of diabetes mellitus, both type 1 and type 2. The records also refer to adult onset versus juvenile onset and that the Veteran is insulin-dependent versus non-insulin-dependent. There is also reference to brittle diabetes. The Veteran is currently diagnosed as suffering from diabetes; though most of the evidence indicates that he suffers from type 1 diabetes. The Veteran contends that he may suffer from type 2. The distinction is important, because type 2 diabetes is presumptive service connection due to exposure to Agent Orange and type 1 is not. 38 C.F.R. §§ 3.307, 3.309. Records from Dr. J.L. show that Veteran had "AODM," which is adult onset diabetes mellitus or type 2 diabetes. In letters to VA, the Veteran stated that he did not know which type of diabetes he had. In June 2008, the Veteran stated that no doctor had ever told him what type of diabetes he had, and that he felt that he had type 2 and not type 1. In April 2011, the Veteran stated that his endocrinologist told him he probably had type 2 diabetes. The private medical records from the Endocrine Associates of Dallas from 2002 to 2007 document type 1 diabetes. Records of treatment by Dr. E.K. similarly show a diagnosis of juvenile or type 1 diabetes. On VA examinations in February 2008 and in April 2011, the diagnosis was type 1 diabetes. The Veteran does not argue and the evidence does not show that diabetes mellitus or symptoms associated with diabetes were present in service and the theories of service connection based on affirmatively showing onset in service or based on chronicity and continuity of symptomatology do not apply. Except for the argument relating to the exposure to Agent Orange, which is addressed separately, there is no evidence that the post-service diabetes mellitus in related to an injury, disease, or event in service. As diabetes was not diagnosed unit the 1980s, presumptive service connection based on the one year presumption for a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). To address the question of type 1 or 2 of diabetes as it relates to exposure to Agent Orange, the Board sought a VHA expert opinion. In November 2012, the VHA expert, the Chief of the Endocrinology Section at the Durham VA Medical Center and a Professor of Medicine at the Duke University Medical Center in the Division of Endocrinology, Metabolism, and Nutrition, stated that it was at least as likely as not that the Veteran had type 1 rather than type 2 diabetes. In supporting the opinion, the VHA expert explained that the information was more suggestive of type 1 diabetes as diabetes required insulin during the early course of the disease without evidence of obesity, that the Veteran's endocrinologist listed type 1 diabetes. The Board finds that the opinion of the VHA expert is more persuasive than the statement of Dr. J.L. that Veteran had "AODM," which is adult onset diabetes mellitus or type 2 diabetes. As the Veteran has type 1, not type 2, presumptive service connection based on exposure to Agent Orange does not apply. Notwithstanding the foregoing, the Veteran may still establish service connection based on exposure to Agent Orange with proof of actual causation. See Combee, 34 F.3d at 1043-44. There is no evidence that type 1 diabetes is actually caused by exposure to Agent Orange. As for the Veteran's opinion that he has type 2 diabetes, diabetes mellitus, either type 1 or type 2 is not a condition under case law that has been found to be capable of lay observation, the determination as to the presence or diagnosis of such a disability therefore is medical in nature and competent medical evidence is needed to substantiate the claim. Savage, 498, rev'd on other grounds by _ F.3d _ Walker v. Shinseki, 2011-7184, WL 628429 (Fed. Cir. Feb. 21, 2013). Also under certain circumstances, the Veteran as lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson, at 1316. Competency is a question of fact, which is to be addressed by the Board. Diabetes mellitus is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition. As the disability is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition, the Veteran is not competent to state that he has type 2 diabetes. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify diabetes, type 2. Also, to the extent the Veteran has expressed an opinion that diabetes may be actually caused by exposure to Agent Orange, the Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized knowledge, education training, or experience. As the Veteran as a lay person is not competent to declare either the presence or diagnosis of diabetes, type 1 or type 2, based on personal observation, any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on Agent Orange actually causing diabetes, type 1. As the Board does not find the Veteran competent to establish a diagnosis or to express an opinion on the origin or cause of diabetes type 1, the Board need not reach the question of whether or not the Veteran's statements are credible. For these reasons, the preponderance of the evidence is against the claim of service connection for a type 1 diabetes mellitus, and the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for diabetes mellitus, type 1, is denied. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs