Citation Nr: 21076827 Decision Date: 12/28/21 Archive Date: 12/27/21 DOCKET NO. 16-29 654 DATE: December 28, 2021 ORDER Entitlement to diabetes mellitus, type II, associated with herbicide exposure is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's diabetes is not related to his military service. 2. The Veteran does not have conceded herbicide exposure. 3. The Veteran's tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1969 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) from the September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2019 and was remanded for further development. The Board finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION 1. Entitlement to diabetes mellitus, type II, associated with herbicide exposure The Veteran contends that his diabetes mellitus is related to his military service. Specifically, the Veteran alleges that he was exposed to herbicides while aboard the USS Ticonderoga and that this exposure caused his current diabetes. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of diabetes, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran alleges that he was exposed to herbicide agents onboard the USS Ticonderoga, an aircraft carrier. Initially, the Board notes that the USS Ticonderoga is not on the list of ships that have been classified to have operated in "brown water service." Furthermore, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit held that the phrase "the Republic of Vietnam" included the 12 nautical mile territorial sea of Vietnam. As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. Therefore, pursuant to the Board's April 2019 remand, research was completed to determine whether the Veteran, while aboard the USS Ticonderoga, was within the 12 nautical mile territorial sea of the Republic of Vietnam. In May 2021, a records research response stated that no evidence was located to support documentation that the USS Ticonderoga was within 12 nautical miles of Vietnam and therefore exposure to herbicides could not be conceded. Alternatively, the Veteran argues that he was exposed to herbicide agents from aircraft returning from missions in and over Vietnam. The Board notes that the claim of exposure to herbicide agents via aircraft that were in Vietnam generally is too attenuated to establish actual herbicide agent exposure. Thus, there is no probative evidence of record establishing that the Veteran was actually exposed to herbicide agents during his service aboard the aircraft carrier USS Ticonderoga. As the Board cannot verify actual or presumptive in-service exposure to herbicide agents, presumptive service connection for diabetes based on exposure to herbicide agents in active service is not warranted. However, the Board will consider other applicable legal theories of entitlement. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The medical evidence of record shows that the Veteran currently has and is being treated for diabetes. Thus, the Veteran has a current disability for purposes of direct service connection. Turning to the second element, the preponderance of the evidence is against a finding of an in-service event, injury or disease. The Veteran has not argued, and the service treatment records do not reflect, complaints, treatment or a diagnosis of diabetes while in service. Moreover, concerning the third element, there is no competent and credible evidence of record linking the Veteran's diabetes to his active duty service generally. While the Veteran has asserted his diabetes is related to service, as indicated, the Veteran's assertion is based on his contention of herbicide exposure. The Veteran is not competent to provide such as opinion regarding service connection under the facts of this appeal, as to do so requires medical expertise that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran's diabetes is related to his active duty service, and therefore the third element is not met. As neither the second nor the third element has been met, service connection for diabetes on a direct basis is not warranted. 38 C.F.R. § 3.303. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is related to his military service. VA treatment records show the Veteran has a current diagnosis of tinnitus. Thus, the question becomes whether the current disability is related to service. The Veteran's personnel records note that the Veteran served aboard the USS Ticonderoga, an aircraft carrier, for several years, which had a large number of aircraft coming and going on a frequent basis. The Board notes that tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, while the Veteran's service treatment records are negative for complaints of tinnitus, he is nevertheless competent to report a history of tinnitus that began since service. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 470. In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the recurrence of tinnitus symptoms. He is also competent to comment on the onset and frequency of his tinnitus. Lay evidence can be competent and sufficient evidence to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Thus, the Board finds that the Veteran's competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus and therefore service connection for tinnitus is warranted. 38 C.F.R. § 3.303 (a). Thereby, following a thorough review of the evidence of record, and affording the Veteran the benefit of the doubt, the Board concludes that service connection for tinnitus is warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.