Citation Nr: 21064331 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-13 608 DATE: October 19, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. INTRODUCTION The Veteran served on active duty from June 1968 to May 1972, with confirmed service in the Republic of Vietnam. In July 2021, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). FINDINGS OF FACT 1. The Veteran's diabetes mellitus, type II is related to exposure to herbicide agents during his period of active service. 2. The Veteran's tinnitus is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As explained below, the Board has determined the evidence currently of record is sufficient to grant entitlement to service connection for an upper back disability. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A or 38 C.F.R. § 3.159. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, type II diabetes shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(ii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). 38 C.F.R. § 3.307 (a)(6)(ii) requires type II diabetes manifest to a degree of 10 percent or more at any time after service. Factual Background and Analysis Diabetes Mellitus Claim The Veteran has initiated a claim for service connection for diabetes mellitus, which he asserts was caused by exposure to herbicides in service. Initially, the Board notes the Veteran's DD-214 indicates he served in the Republic of Vietnam from April 1970 to November 1971. As such, his exposure to herbicide agents in service is conceded. Next, the Board observes the Veteran underwent a VA examination in May 2016. At that time, the examiner noted the Veteran did experience an elevated Hemoglobin A1C, but determined his rise in blood sugar was attributable to steroid-induced hyperglycemia. Therefore, the examiner concluded the Veteran did not warrant a diagnosis of diabetes mellitus. However, in a September 2016 letter, a treating clinician found the Veteran did meet the diagnostic criteria for diabetes mellitus, as he had experienced an A1C of 6.5 in January 2016. The clinician explained the Veteran did subsequently experience a lowering of his A1C, however, she attributed that to his diet and exercise. A review of the Veteran's subsequent outpatient treatment records from the Little Rock VAMC show he has been treated for diabetes mellitus throughout the appeal period. Further, these records show the Veteran continues to experience significantly elevated blood glucose readings. Based on the foregoing, the Board finds the evidence of record clearly establishes the Veteran has been diagnosed with diabetes mellitus, type II. As the evidence of record also indicates he served in the Republic of Vietnam, his exposure to herbicide agents is corroborated. Therefore, the Veteran is entitled to presumptive service connection for his diabetes mellitus. See 38 C.F.R. § 3.309 (e). Tinnitus Claim The Veteran seeks service connection for tinnitus, which he contends originated in service. The medical evidence confirms the Veteran currently has tinnitus. The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes the Veteran's STRs do not show he was treated for or diagnosed with tinnitus in service; however, the Veteran's DD-214 shows he was a Special Forces and Infantry Officer in the Army. The U.S. Army has acknowledged these military occupational specialties (MOS) carry a high probability for exposure to acoustic trauma. On VA examination in June 2016, the examiner diagnosed the Veteran with tinnitus. However, the examiner concluded she could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation. In support of her conclusion the examiner noted the Veteran was not diagnosed with tinnitus in service, and also could not state whether his claimed hearing loss was incurred in or aggravated by service. The examiner then provided an addendum medical opinion in March 2019. This time she found the Veteran's disability was less likely than not incurred in service, again relying on his lack of treatment for the condition therein. An absence of contemporaneous service treatment records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this respect, the examiner wholly failed to acknowledge or discuss the Veteran's conceded military noise exposure. As such, her opinions have been afforded minimal probative value. Notwithstanding the medical opinions provided by the June 2016 VA examiner, the Veteran has reported he was exposed to significant noise exposure during his period of active duty. Further, he has also stated that he initially noticed his ringing in his ears during his time in the Army, and that his tinnitus has persisted since that time. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation."). Here, the Veteran has reported that he experienced ringing of the ears in service, which has persisted ever since. The Board finds the Veteran competent to report his hearing limitations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ringing of the ears to be at least as probative as the above-noted VA examiner's findings. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his exposure to acoustic trauma in service. The Veteran has competently and credibly reported that he experienced tinnitus during and since service due to the in-service acoustic trauma. Accordingly, a nexus to service is established. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed disability and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his tinnitus. REASONS FOR REMAND Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board observes the Veteran's STRs show he underwent a pre-induction audiogram in May 1968. At that time he was shown to have high-frequency hearing loss at the 4000 decibel level bilaterally. However, as noted above, the Veteran's MOS carried a high probability for exposure to acoustic trauma. As such, his exposure to potentially damaging noise exposure in service has been conceded. As also noted above, the Veteran underwent a VA examination in June 2016, at which time he was also diagnosed with bilateral sensorineural hearing loss. The Board finds the medical opinions provided the examiner in June 2016 and March 2019 to be inadequate. In her initial opinion, the examiner concluded she could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation because she was not able to locate or review the Veteran's separation examination. In her subsequent March 2019 opinion, the examiner found the Veteran's hearing loss was less likely than not caused or aggravated by his military service. In this respect, the examiner appears to have wholly relied upon in-service audiogram results and failed to acknowledge or discuss either the Veteran's reports or his conceded in-service occupational noise exposure. Examiners simply are not free to ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board further notes a series of papers by Sharon Kujawa at the Department of Audiology Massachusetts Eye and Ear Infirmary, which shows that even in the presence of a "fully" recovered temporary threshold shift (TTS), hair cells are damaged. This study indicates that while people have a finite number of hair cells at any given frequency only a portion of those cells are needed for what we measure as normal hearing, and the remainder could be considered a protective mechanism. This study further suggests that as people age these hair cells are damaged and if the redundant cells are not there the individual will experience a greater hearing loss. Until recently, short term exposure was thought to result in a TTS that recovered completely when the individual was sound. However, the above-noted data/papers provide additional evidence supporting the concept of latent onset hearing disability. Based on the foregoing insufficiencies, the Board finds a medical opinion from an Otolaryngologist is necessary prior to the final adjudication of this matter. Accordingly, this case is REMANDED for the following actions: 1. Obtain an addendum medical opinion from a VA Otolaryngologist with sufficient experience and expertise to provide an opinion as to the etiology of the Veteran's bilateral hearing loss. The physician must consider the above-noted study by Dr. Sharon Kujawa, and in doing so, must also be mindful that although the Veteran's sensorineural hearing loss may have been present prior to service, service connection can still be established if the evidence shows the current disability was aggravated to any degree by incidents during service. In this regard, the physician must state whether the Veteran's bilateral sensorineural hearing loss at least as likely as not (a 50 percent probability or greater) was aggravated to any degree by his active service. In this respect, the examiner is asked to expressly consider and specifically discuss the Veteran's conceded military noise exposure. Another examination of the Veteran must be performed only if deemed necessary by the physician providing the opinion. The examiner must provide a complete rationale for all proffered opinions. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.