Citation Nr: 18102403 Decision Date: 05/15/18 Archive Date: 05/15/18 DOCKET NO. 14-43 943 DATE: May 15, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss, to include as secondary to tinnitus, is granted. Entitlement to service connection for diabetes mellitus type II (DMII), to include as due to herbicide agent exposure, is granted. Entitlement to a schedular total disability rating based on unemployability (TDIU) since November 27, 2013, is granted. In addition, the issue of entitlement to a TDIU prior to November 27, 2013, has been remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus began during active service. 2. The Veteran’s bilateral hearing loss is related to his service-connected tinnitus. 3. The Veteran was exposed to an herbicide agent during service in the Republic of Vietnam; his DMII manifested to a compensable degree after separation and is not attributable to intercurrent causes. 4. The Veteran became eligible for schedular TDIU on November 27, 2013; at least since that date, the Veteran’s service-connected PTSD has prevented him from being capable of the mental acts required to obtain and/or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been satisfied. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for bilateral hearing loss have been satisfied. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for entitlement to service connection for DMII have been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.307, 3.309, 4.119, Diagnostic Code (DC) 7913 (2017). 4. The criteria for entitlement to schedular TDIU since November 27, 2013, have been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.340, 3.341, 4.15, 4.16, 4.19 (2017); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Thun v. Peake, 22 Vet. App. 111 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from September 1966 to January 1967 (active duty for training [ACDUTRA]) and from May 1968 to September 1969 (active duty service, including in the Republic of Vietnam). Service Connection Direct service connection generally requires evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, if a veteran had in-service, herbicide agent exposure, presumptive service connection can be established for certain conditions (including DMII, as long as it manifested to a degree of 10 percent or more at any time post-separation). 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Additionally, secondary service connection can be established for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began during service, when he was exposed to loud noises during combat. See November 2017 hearing transcript. An April 2015 opinion by L.C. indicated that the tinnitus was likely caused by in-service noise exposure and/or medication. However, regardless of medical opinion, the Board finds the Veteran competent to diagnose this disability and identify its onset, as it is lay-observable. Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 465. As such, the Board finds that the tinnitus began during active service. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing declined during service and worsened since. See November 2017 hearing transcript. Although the June 2014 VA examiner provided a negative opinion for direct service connection, she opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with his bilateral hearing loss. As previously discussed, the Board has found tinnitus to be service connected, and, as such, the Board also finds the bilateral hearing loss to be associated with the service-connected tinnitus. 3. Entitlement to service connection for DMII The Veteran currently has DMII, which is managed, in part, through medication, dietary restriction, and regular glucose monitoring. See July 2014 record from Mountain View Hospital ; September 2015 record from Salt Lake VAMC. Due to service in the Republic of Vietnam, the Board concedes herbicide agent exposure. The 10 percent criterion for DMII requires that it be managed by restricted diet, to which the Veteran adheres. 38 C.F.R. § 4.119, DC 7913. Due to the herbicide agent exposure and the DMII manifesting to a degree of at least 10 percent, the Board presumes service connection. 4. Entitlement to schedular TDIU since November 27, 2013 The Veteran last worked on July 17, 2012. See January 2015 VA Form 21-4192. The Veteran generally contends that the symptoms of his service-connected PTSD preclude him from obtaining and/or maintaining gainful employment. See November 2017 hearing testimony. The service-connected PTSD has met the schedular criteria for TDIU consideration since November 27, 2013. 38 C.F.R. § 4.16(a); April 2015 codesheet (PTSD rated at 70 percent since November 27, 2013, and combined evaluation for all service-connected disabilities rated at 70 percent since November 27, 2013). The June 2014 VA examiner indicated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner identified symptoms of: persistent, recurring, intrusive memories; dissociative flashbacks sensitive to sounds or being startled; exaggerated startle response; hypervigilance; nightmares; reckless self-medication; inability to trust others; social isolation and detachment; irritability; difficulty concentrating; persistent, negative emotional state; depressed and dysphoric mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; difficulty in adapting to stressful circumstances, including work or a worklife setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; flattened affect; and panic attacks due to PTSD triggers. Based on this combination of symptoms, the Board finds that, even if the Veteran were able to obtain a substantially gainful occupation, he would be unable to sustain the mental acts required to maintain it. As such, the criteria for schedular TDIU have been met since November 27, 2013. REMANDED ISSUE Entitlement to a TDIU prior to November 27, 2013, is remanded. As the Board is granting three disabilities herein, the RO will implement these grants, including the assignment of disability ratings and effective dates. The TDIU matter is inextricably intertwined and should be readjudicated by the RO after implementation of the service connection grants. The matter is REMANDED for the following action: After implementing the grants of service connection contained in this decision, readjudicate the matter of entitlement to a TDIU prior to November 27, 2013. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel