Citation Nr: 18149591 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-40 992A DATE: November 9, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for diabetes mellitus, to include as on a presumptive basis due to exposure to an herbicide agent, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his tinnitus is etiologically related to active duty service. 2. The Veteran had active duty service in the Republic of Vietnam in 1968 and 1969 and has a current diagnosis of diabetes mellitus that has manifested to a compensable degree. 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(a). 2. The criteria for entitlement to service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(e), 4.119. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1968 to February 1970, including in the Republic of Vietnam. Among other commendations for his honorable service, the Veteran was awarded the Vietnam service medal with two bronze stars. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a presumptive basis for certain disabilities due to exposure to an herbicide agent. 38 C.F.R. § 3.307. Diabetes mellitus is among the disabilities identified as one which may be granted service connection under that presumption, provided it manifests to a compensable degree at some point after service. Id, 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for tinnitus As an initial matter, the record is somewhat inconsistent with respect to whether the Veteran has a current diagnosis of tinnitus. In connection with his claim for service connection for bilateral hearing loss, he was afforded an initial VA audiological examination in August 2015. The audiologist who examined the Veteran at that time noted that the Veteran’s service treatment records documented significant shifts in his hearing thresholds, as indicated by audiometric findings. However, she indicated that the Veteran did not report symptoms of recurrent tinnitus. Notwithstanding such, his VA treatment records suggest he has reported tinnitus-related symptoms since he filed his claim for benefits. At a clinical evaluation in early May 2016, the Veteran described significant noise exposure in the Army during which he did not use hearing protection and stated that he had bilateral, intermittent tinnitus that he first noticed about 10 years earlier. He attended a follow-up visit two weeks later at which he again stated that he had bilateral, intermittent tinnitus. In connection with a separate appeal for an increase in his evaluation for his service-connected hearing loss, the Veteran was afforded an additional audiological examination in June 2018 at which he again reported symptoms of recurrent tinnitus. In contrast to the clinical examination in May 2016, however, the Veteran stated that he first noticed these symptoms in 1969 during active duty service. Although the record appears somewhat inconsistent with respect to the onset of symptoms relating to this condition, the Board finds that the repeated, competent statements of tinnitus-related symptoms and the diagnosis provided by a trained audiologist in June 2018 represent competent, credible, and probative evidence that the Veteran has a current disability of tinnitus. The Veteran’s service personnel records also indicate he has combat experience and the Board has no reason to doubt the sincerity of his statements that he was exposed to significant noises in service. As such, the Board will turn to whether this current disability arose in or is otherwise etiologically related to the Veteran’s in-service noise exposure. Ultimately, the record contains only one medical statement regarding the etiology of the Veteran’s recurrent tinnitus. Specifically, after reviewing the Veteran’s claims file and personally examining the Veteran, the audiologist who conducted the June 2018 VA audiological evaluation stated that it was at least as likely as not that this disability was caused by or a result of military noise exposure. In support of this opinion, the audiologist cited the Veteran’s exposure in service, stating that excessive noise exposure is known to cause tinnitus. As such, he stated that the noise exposure caused tinnitus in this particular case. Although this opinion does not include an extremely detailed rationale, this audiologist is competent to report on the complex medical question of the etiology of the Veteran’s tinnitus. It also represents the only medical opinion with respect to the cause of that disability that appears in the record. In addition to the medical opinion evidence, the Board has considered the Veteran’s opinion as well. In sum, the Board finds that the probative, competent, and credible evidence of record is at least in equipoise regarding the question of whether the Veteran’s tinnitus is due to his military noise exposure. Resolving all reasonable doubt in the Veteran’s favor, the Board therefore finds that the criteria for service connection for tinnitus have been met. 2. Entitlement to service connection for diabetes mellitus, to include as on a presumptive basis due to exposure to an herbicide agent The Veteran also seeks service connection for diabetes mellitus. As explained above, this disability is among those identified for which service connection may be granted on a presumptive basis to Veterans who have been exposed to an herbicide agent. The Veteran’s DD Form 2014 confirms that he had in-country service in the Republic of Vietnam from July 1968 to July 1968. Pursuant to 38 C.F.R. § 3.307(a)(6)(iii), the Board therefore finds that he is presumed to have exposure to an herbicide agent. As he does not contend that diabetes is connected to his active duty service directly or under any other theory, the Board will therefore turn to the central question of whether the Veteran has a current diagnosis of diabetes mellitus that manifests to a degree of 10 percent or more. Diabetes is evaluated under Diagnostic Code 7913. 38 C.F.R. § 4.119. To warrant a 10 percent evaluation under that Code, diabetes must be manageable by restricted diet alone. Higher evaluations are assigned with more aggressive treatment, such as regulation of activities, insulin, or oral hypoglycemic agents, or significant diabetes-related symptoms or clinical signs, such as episodes of ketoacidosis. A review of the record indicates that the Veteran did not appear to have diabetes at the time he filed his claim for benefits in October 2014 and the medical records around that time do not contain any evidence that a medical professional diagnosed him with this disability. Similarly, at the August 2015 VA medical examination, the Veteran explained that he had low blood sugar but acknowledged that he did not have an actual diagnosis of diabetes. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, to satisfy the definition of a “current” disability, a disability need only be present at any point during the appellate period under consideration. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Here, the evidence suggests that the Veteran was subsequently provided a competent diagnosis of diabetes mellitus. More specifically, citing the Veteran’s laboratory results showing an elevated A1C level, the Veteran was assessed with type II diabetes mellitus at a May 2018 VA clinical examination. Although the Veteran declined a referral to a nutritionist, in an addendum note to that treatment visit, the Veteran was reported to have been encouraged to engage in diet modification to treat his diabetes. The Veteran was also prescribed an oral hypoglycemic agent at that time. The Board finds that this represents competent, probative, and credible evidence that the Veteran has a current diagnosis of diabetes which also appears to manifest to at least a degree of 10 percent. Given his presumed exposure to an herbicide agent and the absence of any evidence suggesting an intercurrent cause or rebutting the presumption of exposure pursuant to 38 C.F.R. § 3.307(d), the Board finds that the criteria for service connection for diabetes mellitus have been met. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel