Citation Nr: 1324764	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  10-29 160	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, Type II, as secondary to exposure to herbicides.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to August 1968, to include service in Vietnam. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss, denied service connection for tinnitus, and denied service connection for diabetes mellitus.  The Board notes that the Veteran's claims file is now under the jurisdiction of the Oakland RO.

The Veteran testified before a Decision Review Officer in December 2009 and the undersigned Veterans Law Judge in January 2013.  Transcripts of both hearings are of record.

In April 2013, the Board requested an expert opinion from the Veterans Health Administration (VHA).  In July 2013 a VHA opinion was received.

A review of the Virtual VA paperless claims processing system reveals the Veteran's testimony before the undersigned Veterans Law Judge; there are no additional documents pertinent to the present appeal.

The service connection issues are decided herein.  The compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if any action on his part is required.


FINDINGS OF FACT

1.  The Veteran had service in the Republic of Vietnam during the Vietnam era and therefore in-service exposure to herbicides including Agent Orange is presumed.

2.  The Veteran has been diagnosed with diabetes mellitus, Type II (diabetes), which is subject to presumptive service connection as a result of exposure to herbicides.

3.  The Veteran's treatment for diabetes includes medication and a restricted diet.

4.  It is reasonably shown that the Veteran's tinnitus began in service and has persisted.


CONCLUSIONS OF LAW

1.  Service connection for diabetes mellitus, type II as secondary to herbicide exposure is warranted.  38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012).

2.  Resolving the benefit of the doubt in the Veteran's favor, service connection for tinnitus is warranted.  38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Here, with regard to the issues herein decided, the decision below is granting in full the benefits sought.  Accordingly, even assuming that an error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 

II.  Factual Background, Legal Criteria and Analysis 

Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303.  

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: A layperson is competent to identify the medical condition; The layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

To establish service connection for a disability, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury (disability). Hickson v. West, 13 Vet. App. 247, 248 (1999).  

Diabetes:

The Veteran's service treatment records (STRs) do not show any complaints of diabetes, and the Veteran does not claim he incurred diabetes while on active duty.  Rather, he maintains that his service in Vietnam, exposed him to Agent Orange herbicides that entitles him to service connection for diabetes mellitus, type II, on a presumptive basis.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6) and 3.309(e).

A July 1988 VA treatment record documents the Veteran's insulin dependent diabetes.  There was no indication whether or not the diabetes was type I or type II.

Private treatment records dated from March 2004 to February 2008 show diagnoses of both type I and type II diabetes.

On July 2008 VA examination, type I diabetes mellitus was diagnosed.  In a February 2009 addendum opinion, the examiner, S.S. NP., opined that based on a review of the Veteran's most recent test of C-Peptide which shows the Veteran makes little insulin; the Veteran is considered to have type I diabetes.

The Board notes that there were conflicting medical diagnoses in the claims file regarding whether or not the Veteran had type I or type II diabetes.  

As a result, in April 2013, the Board requested an expert medical opinion from VHA.  In July 2013, A.O., M.D. Chief of Endocrinology thoroughly opined that the Veteran more likely as not had type II diabetes at the time of the initial diagnosis, and in fact, she believed that the Veteran still has type II diabetes.  She stated that it was common for medical providers to give a diagnosis of type I or type II diabetes without clear evidence for the type of diabetes.  She stated that some providers will use the term type I diabetes for any patient that takes insulin which is not correct.  Dr. A.O. stated that that there was no proof from the medical evidence that the Veteran has/had diabetes mellitus, type I, as there was not a specific test that can determine this so long after the initial diagnosis.  There were no clues that point toward a type I diabetes diagnosis, as the Veteran did not have diabetic ketoacidosis either at the time of diagnosis or since.  He did not have positive pancreatic autoantibodies documented in the record.  She stated that people with type I diabetes are more likely to have anti-thyroid or anti-adrenal antibodies detected in their blood, and the Veteran did not have those antibodies.  Relevant to the February 2009 VA opinion, Dr. A.O. stated that the low C-peptide more than 20 years after the Veteran's diagnosis did not prove type I diabetes as the test would have had to been done soon after the diagnosis in order to determine the initial type of diabetes.  She stated that the Veteran could still have had type II diabetes and his pancreas may have exhausted its capability to make insulin over the years, leading to the low C-peptide level 22 years later.  She opined that without any proof of a diagnosis of type I diabetes, it is more likely than not that he has type II diabetes with loss of pancreatic function over time leading to the low C-peptide.

The Board notes the conflicting medical opinions.  The February 2009 examiner is a nurse practitioner, and the July 2013 physician is the Chief of Endocrinology.  The Board places significantly greater probative weight to the opinion of the July 2013 VHA expert, who possesses greater training and expertise than the nurse practitioner in determining whether the Veteran has type I or type II diabetes.  Based on the thorough review and opinion by Dr. A.O., the Board finds the Veteran's diabetes mellitus is type II.

As noted, the Veteran served in the Republic of Vietnam during the Vietnam Era.  Because of his presence in Vietnam, the Veteran is entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(f).  Diabetes mellitus type II may be presumptively service connected under 38 C.F.R. § 3.309(e) if it manifests to a degree of 10 percent or more at any time after service.  See 38 C.F.R. § 3.307(a)(6)(ii).

Diabetes mellitus, type II, is assigned a compensable evaluation even if manageable by restricted diet only.  See 38 C.F.R. § 4.119, Code 7913.  
VA treatment records document diabetes mellitus, type II, and that the Veteran continues to control his diabetes with insulin and restricted diet.  See November 2007 treatment record and July 2008 VA examination report.  The evidence of record supports a compensable rating. 

Accordingly, the Board finds service connection is warranted for diabetes mellitus, type II.

Tinnitus:

The Veteran's STRs do not show any complaints of tinnitus, however, his military occupation specialty was a machine repairman, which would have exposed him to loud noise.  He testified that in addition to the machines he operated, that ran all the time, he was also exposed to rifles, grenades, and mortars.  The Veteran has been granted service connection for bilateral hearing loss based on in-service noise exposure.  Consequently, it may be assumed that he had substantial exposure to noise trauma in service.  

While the Veteran reported during a July 2008 audiological evaluation, an onset of tinnitus within the last 10 years, at his January 2013 hearing, he testified that he in fact has experienced ringing in his ears since service.  He stated that the ringing in his ears is constant and has always been there.

It is not in dispute that during his service the Veteran had substantial exposure to artillery and mechanical equipment.  At the January 2013 hearing he essentially indicated that he has experienced tinnitus consistently since service.  One way of substantiating a claim of service connection is by showing that a chronic disease became manifest in service, and has persisted.  The Veteran is competent to provide evidence that he experiences/experienced tinnitus; the United States Court of Appeals for Veterans Claims has determined that ringing in the ears is a symptom capable of lay observation.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The record presents no reason to question the credibility of the Veteran's accounts that he had the onset of tinnitus in service, and that he has experienced tinnitus since.  Accordingly, he has substantiated this claim, and service connection for tinnitus is warranted. 


ORDER

Service connection for diabetes mellitus, type II as due to in-service herbicide exposure is granted, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

Inasmuch as the Board regrets the additional delay of this matter, a remand is required before the remaining claim can be properly adjudicated.

The Board finds that a remand is warranted in order for the Veteran to be afforded a new VA examination.  The Veteran's last VA examination for his service-connected bilateral hearing loss was in July 2008 and the Veteran testified that his hearing has increased in severity since that examination.  When the available evidence is too old for an evaluation of the claimant's current condition VA's duty to assist includes providing him with a new examination.  Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  The Board finds that the Veteran should be scheduled for a new VA examination to determine the current severity of his service-connected bilateral hearing loss.

Finally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file.  The Veteran testified that all of his treatment related to his hearing loss was through VA.

Accordingly, the case is REMANDED for the following:

1.  Obtain the Veteran's updated VA treatment records.  Such records dated through March 2009 from the VA Medical Center in Sacramento are located in the Veteran's claims file.  Any response received in association with this request should be memorialized in the Veteran's claims file.

All efforts to obtain these records should be documented in the claims file.  If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed.

2.  Following receipt of any additional records, schedule the Veteran for a VA audiological evaluation to determine the current nature and severity of his service-connected bilateral hearing loss.  The claims file must be made available to the examiner, and the examiner should include in the examination report discussion of the Veteran's medical history and assertions.  All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.  

After a careful review of the Veteran's claims file the VA audiologist must discuss the current nature and severity of the Veteran's bilateral hearing loss.  The examiner is specifically requested to fully describe the functional effects of this disability.  

The examiner's findings must be stated in terms conforming to the applicable rating criteria.  Massey v. Brown, 7 Vet. App. 204 (1994).

3.  Thereafter, review the claims file to ensure that all the foregoing requested development is completed, and, arrange for any additional development indicated.  The RO should then readjudicate the claim on appeal.  If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite time period to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  No action is required of the appellant unless he is notified.

The purpose of this remand is to assist the Veteran with the development of his claim.  The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  No action is required of the Veteran until further notice.  The Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.  His cooperation in VA's efforts to develop his claim, including reporting for the scheduled VA examination, is both critical and appreciated.  The Veteran is also advised that failure to report for the scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655.

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs