Citation Nr: 18142129 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 15-23 211 DATE: October 12, 2018 ORDER Service connection for tinnitus is granted. Service connection for diabetes mellitus Type II (diabetes) is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s tinnitus had its onset during or is otherwise related to a period of active service. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran has a diagnosis of diabetes during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for entitlement to service connection for diabetes have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971 and from October 1990 to August 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and October 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran and his spouse testified before the undersigned at a Board hearing in Waco, Texas. A transcript of that hearing has been associated with the virtual file and reviewed. Service Connection 1. Entitlement to service connection for tinnitus After review of the record, the Board finds that the criteria for service connection for tinnitus have been met. The record contains a competent diagnosis of tinnitus. 10/08/2014, C&P Exam. Accordingly, the Board finds competent evidence of a current disability. During his first period of service, the Veteran’s military occupational specialty (MOS) was an infantry mortar man. 10/17/2014, Certificate of Release. Therefore, acoustic trauma is consistent with the types and circumstances of his service. 38 U.S.C. § 1154(a). Thus, in-service incurrence is conceded. The Veteran contends that he has experienced tinnitus since shortly after his first period of active duty. See 10/08/2014, C&P Exam; 04/27/2017, Hearing Transcript. In October 2014, a VA examiner opined that it is less likely than not that tinnitus is associated with military noise exposure because the Veteran denied tinnitus during a diagnostic medical evaluation in October 1990. 10/08/2014, C&P Exam. The Veteran has explained that he denied experiencing ringing in the ears; however, he contends that his tinnitus manifests in the form of chirping, which is why he previously denied having tinnitus. 02/27/2015, Form 9. In light of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether tinnitus manifested to a compensable degree within one year of service. Certain chronic diseases, including tinnitus, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (finding tinnitus to be an “organic disease of the nervous system,” which is listed in 38 C.F.R. § 3.309(a)). Accordingly, the Board finds that service connection is warranted for tinnitus. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. Entitlement to service connection for diabetes After review of the record, the Board finds that the criteria for service connection for diabetes have been met. If a veteran had in-service herbicide agent exposure, the diseases set forth in 38 C.F.R. § 3.309(e) will be presumed to be related to such service if they become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). The Veteran’s military personnel records demonstrate that he served in Vietnam from April 1970 to March 1971. 10/17/2014, Certificate of Release. Accordingly, the Veteran is presumed to have been exposed to herbicide agents during service. 38 C.F.R. § 3.307(a)(6)(iii). The evidence demonstrates that the Veteran was diagnosed with Type II diabetes mellitus as early as September 2003. 02/25/2011, Medical-Non-Government. A June 2017 letter from the Veteran’s VA physician indicates that she diagnosed him with diabetes in January 2012 and started him on medication to treat diabetes in June 2012. 06/16/2017, Medical-Government. A glucose reading in August 2012 was 129 mg/dL, which indicates a provisional diagnosis of diabetes. 04/14/2014, Medical-Government. The Board acknowledges a February 2015 VA examination indicating that the Veteran does not meet the criteria for diabetes based on his most recent laboratory results. 02/19/2015, C&P Exam. However, the examiner did not state whether the Veteran had diabetes during at any time during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the examiner’s rationale was that the most recent A1C level was 6.4%, but that a diagnosis of diabetes requires an A1C of 6.5%. The Board notes that the examiner did not address what impact, if any, the Veteran’s diabetes medication may have had on his A1C or fasting glucose levels. After resolving reasonable doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran has a current disability. Accordingly, service connection is warranted for diabetes, which is included on the list of disorders that are presumed to be related to in-service herbicide agent exposure. 38 C.F.R. § 3.307(a)(6)(ii), 3.309(e). There is no affirmative evidence to rebut such presumption in this case. See 38 C.F.R. § 3.307(d)(1). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. VA examiners in November 2011 and February 2015 opined that sleep apnea is not due to diabetes. The November 2011 VA examiner stated that there is no nexus between obstructive sleep apnea and diabetes and the February 2015 VA examiner simply stated that the Veteran does not have diabetes. The Board notes that service connection has been granted for diabetes herein, and the VA examinations failed to address whether sleep apnea is related to service or whether it has been aggravated by service-connected diabetes. Accordingly, the Agency of Original Jurisdiction (AOJ) should obtain an addendum opinion to determine the etiology of obstructive sleep apnea. 2. Entitlement to service connection for erectile dysfunction is remanded. VA examiners in November 2011 and February 2015 opined that erectile dysfunction is not due to diabetes. The November 2011 VA examiner stated that erectile dysfunction occurred after taking blood pressure medication and the February 2015 VA examiner simply stated that the Veteran does not have diabetes. However, the February 2015 VA examiner suspected that erectile dysfunction may be due to service-connected posttraumatic stress disorder (PTSD). The VA examinations failed to address whether erectile dysfunction is related to service, whether it has been aggravated by service-connected diabetes, or whether it is proximately related to another service-connected disability. Accordingly, the AOJ should obtain an addendum opinion to determine the etiology of erectile dysfunction. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period of September 2015 to the present. 2. After completing directive #1, obtain an addendum opinion from an appropriate examiner to determine the nature and etiology of obstructive sleep apnea. An in-person examination is not required unless deemed necessary by the examiner. The examiner should review the virtual file, including a copy of this Remand, and address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that obstructive sleep apnea manifested during or is otherwise related to the Veteran’s periods of active service? (b.) Is it at least as likely as not (50 percent or greater probability) that obstructive sleep apnea was caused by a service-connected disability, to include diabetes and PTSD? (c.) Is it at least as likely as not (50 percent or greater probability) that obstructive sleep apnea has been aggravated (i.e., worsened beyond the normal progression of that disease) by a service-connected disability, to include diabetes and PTSD? If aggravation is found, please identify a baseline level of disability prior to such aggravation. 3. After completing directive #1, obtain an addendum opinion from an appropriate examiner to determine the nature and etiology of erectile dysfunction. An in-person examination is not required unless deemed necessary by the examiner. The examiner should review the virtual file, including a copy of this Remand, and address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that erectile dysfunction manifested during or is otherwise related to the Veteran’s periods of active service? (b.) Is it at least as likely as not (50 percent or greater probability) that erectile dysfunction was caused by a service-connected disability, to include diabetes and PTSD? (c.) Is it at least as likely as not (50 percent or greater probability) that erectile dysfunction has been aggravated (i.e., worsened beyond the normal progression of that disease) by a service-connected disability, to include diabetes and PTSD? If aggravation is found, please identify a baseline level of disability prior to such aggravation. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel