Citation Nr: 22033167 Decision Date: 06/07/22 Archive Date: 06/07/22 DOCKET NO. 17-29 348 DATE: June 7, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for diabetes mellitus type II is denied. REMANDED Entitlement to service connection for Hepatitis C (Hep C) is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his tinnitus is related to service. 2. The evidence of record fails to establish that the Veteran's diabetes mellitus type II is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to May 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran did not indicate whether he wanted a hearing before the Board on his June 2017 VA Form 9. As there was no indication as to whether the Veteran desired a hearing on the matters, the Board sent a March 2022 letter informing him and his representative that if he did not respond within 30 days from the date of the letter, the Board would use his previous selection to determine his choice of hearing. The Veteran, nor his representative, responded to the Board's letter and the Veteran, nor his representative, have not indicated he desired a hearing. According, the Board will proceed with adjudicating the Veteran's claims. The Board further notes that after the RO issued a May 2017 Statement of the Case, additional evidence was associated with the claims file. Specifically, additional VA treatment records were associated with the claims file. However, the additional VA treatment records are cumulative of the prior evidence of record and/or not relevant to the Veteran's claim to entitlement to service connection for diabetes mellitus type II. 38 C.F.R. § 20.1304(c). Therefore, a waiver is not necessary, nor is remand for initial consideration of the evidence by the RO, as the newly associated VA treatment records are cumulative of prior evidence. 38 U.S.C. § 7105(e). The Veteran did not waive RO review of the new evidence, VA treatment records, related to the Veteran's claim to entitlement to service connection for tinnitus. However, as the issue is being granted, there is no prejudice to the Veteran. Additionally, the Veteran did not waive RO review of the new evidence related to the Veteran's claim to entitlement to service connection for sleep apnea. However, as the issue is being remanded, there is no prejudice to the Veteran because the RO will have an opportunity to review the new evidence upon remand. Service Connection Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence must show: (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). Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, as related to in-service noise exposure. See June 2012 VA Form 21-526. In October 2016, the Veteran testified at an informal hearing before a Decision Review Officer (DRO), at which time he stated that he currently has ringing in his ears. See October 2016 DRO hearing testimony. In March 2020, the Veteran underwent an audiology examination, at which time it was determined the Veteran was positive for tinnitus. See March 2020 VA treatment records. Tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran's assertions that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus, confirmed by VA treatment records in March 2020. Therefore, the first Shedden element of service connection for tinnitus has been established. See Shedden, 381 F.3d at 1167. With respect to an in-service injury, event, or disease, the Veteran asserts that he served onboard the U.S.S. Guam LPH-9 as an aviation boatswain mate refueler, and refueled helicopters and airplanes. See October 2016 DRO hearing testimony. The Veteran testified that he had ringing in his ears in service. Id. In March 2020, the Veteran reported that he was in the military and was exposed to a lot of loud noises, worked on a flight deck, bombed Beirut, and worked in an airtight room with loud printers. Id. The Veteran's military personnel records confirm the Veteran service onboard the U.S.S. Guam from August 1979 to June 1983. The Veteran's service treatment records demonstrate the Veteran was provided ear plugs while in service. The Veteran is competent to describe his in-service noise exposure and his service treatment records indicate the Veteran was exposed to loud noises since he was provided ear plugs. See Washington v. Nicholson, 19 Vet. App. 363, 369 (2005). Therefore, the Board finds that the second Shedden element of an in-service injury, consisting of acoustic trauma, has been met. See Shedden, 381 F.3d at 1167. With respect to the third element of service connection, the Veteran tested that his tinnitus that began in service has continued since service. See October 2016 DRO hearing testimony. In March 2020, the Veteran reported that he has had tinnitus since the 1980's when he was in the military. See March 2020 VA treatment records. The Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, in appropriate situations, the Veteran can report symptoms to establish the link between an in-service incurrence and subsequent diagnosis of a disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the Board finds that the Veteran's statements regarding the continuity of his tinnitus are competent and credible. Moreover, as noted, tinnitus is the type of disability lay witnesses are competent to identify. See Charles, 16 Vet. App. at 374. Additionally, there is no evidence to the contrary. In sum, there is competent, credible lay evidence of continuity of tinnitus symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Therefore, in consideration of all the evidence in this case, and with resolution of any doubt in the Veteran's favor, the Board finds that service connection for the Veteran's tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for diabetes mellitus type II. The Veteran seeks service connection for diabetes mellitus type II. See June 2012 VA Form 21-526. The Board notes that service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include diabetes mellitus, manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Additionally, service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. The evidence of record shows that the Veteran has a current diagnosis and history of diabetes mellitus. See March 2012 VA treatment records. Therefore, there is evidence of a present disability. See Shedden v. Principi, 381 F.3d at 1167. With respect to an in-service injury, event, or disease, the Veteran's service treatment records are silent for any complaints and/or symptoms related to the Veteran's diabetes mellitus type II. The Veteran's May 1985 separation examination similarly does not indicate the Veteran had any symptoms, diagnosis, or complaints related to his current diabetes mellitus type II. With respect to the third element of service connection, as noted, the Veteran's post-service treatment records demonstrate that the Veteran was first diagnosed with diabetes mellitus type II in February 2012, more than 26 years after service. See March 2012 VA treatment records. Therefore, the Board finds that the presumptive service connection is not warranted as the Veteran's diabetes did not manifest to a compensable degree within a year after service. 38 C.F.R. § 3.309(a). The prolonged period from separation from service until February 2012 without complaints and/or treatment for diabetes mellitus or symptoms thereof is evidence for consideration in determining continuity of symptomatology and weighs against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Therefore, service connection is not warranted on a presumptive basis. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Service connection may still be granted on a direct basis; however, the Board finds the evidence of record fails to establish the Veteran's diabetes mellitus type II is etiologically related to his service. In that regard, the Veteran testified that he lived recklessly in service, including abusing drugs, such as intravenous drugs and marijuana. See October 2016 DRO hearing testimony. The Veteran stated that his father was diabetic, and it could be possible that he inherited diabetes mellitus, but that his two brothers did not have diabetes and they did not do the things he did in service. Id. The Veteran asserted that he associated his diabetes mellitus with the things he did in service, including drug use. Id. The Board notes that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 U.S.C. § 501; 38 C.F.R. § 3.301. Secondary service connection may be found for drug and alcohol abuse if such abuse is found to be secondary to a service-connected disability. Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Here, a secondary service connection finding for diabetes mellitus would not be warranted as the Veteran is not service connected for a disorder that is related to drug use. Additionally, the Veteran maintains that he lived recklessly, and abused drugs, including marijuana and intravenous drugs, that he associates with his diabetes mellitus type II. However, the Veteran, nor his representative, provided any evidence to support his contentions. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for diabetes mellitus; however, the Board finds no such examination is required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, the VA is obligated to provide an examination when the record contains: (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. at 81. To the extent that the Veteran asserts that he has diabetes mellitus related to his active military service, including his now service-connected tinnitus, the Board notes that he has not been shown to have the medical training necessary to be deemed competent to provide an opinion as to the etiology of his diabetes mellitus diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). This is because the etiology of diabetes mellitus is a complex medical matter requiring specialized medical training. The only evidence in support of his claim is his own statements. Mere conclusory or generalized lay assertions that an in-service event or illness caused a current disability are insufficient to establish a nexus in the absence of competent medical evidence. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As such, the Board finds a VA medical opinion is warranted because there is no competent evidence to indicate the Veteran's diabetes mellitus is related to his service other than his own willful misconduct. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. at 81. For these reasons, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for diabetes mellitus type II is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. REASONS FOR REMAND Entitlement to service connection for Hep C is remanded. The Veteran seeks service connection for Hep C. See June 2012 VA Form 21-526. The Veteran contends that he began using drugs, including intravenous drugs, while in service in order to self-medicate due to ringing in his ears and sleep problems. See October 2016 DRO hearing testimony. The Veteran stated that in many cases he was sharing needles. Id. The record demonstrates the Veteran has been diagnosed with Hep C since at least 2001. See March 2017 VA examination; June 2010 VA treatment records; October 2001 private treatment record. The Veteran was afforded a VA examination in March 2017. When VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In this case, the VA examiner initially opined that it was less likely than not that the Veteran's Hep C was incurred in or caused by the claimed in-service injury, event, or illness. See March 2017 VA examination. As rationale, the VA examiner noted the Veteran has been diagnosed with Hep C since 2001, years after his time on active duty service, but the ability to diagnose Hep C was not available until 1990. Id. The VA examiner noted the Veteran's report of intravenous drug use, including heroin and cocaine during service; that the Veteran was treated for drug abuse and alcoholism in service; and the Veteran's separation examination noted a normal examination with no clinical evidence of any liver abnormalities. Id. The VA examiner noted that blood transfusion is the main route for which Hep C is acquired and risk factors include, in pertinent part, intravenous drug use. Id. The VA examiner noted that the Veteran's service treatment records note that the Veteran was abusing drugs prior to entering service, that he was abusing marijuana and alcohol in service, and that the possibility exists of other drug abuse. Id. The VA examiner also noted the Veteran exhibited risky sexual behavior since he was treated for venereal warts and gonorrhea in service. Id. However, the VA examiner concluded that while the Veteran exhibited numerous risky behaviors, it is "impossible to determine whether any of these behaviors or factors caused the Hep C found in 2001...therefore, and respectively, without resorting to mere speculation, the claimed Hep C condition is less likely than not caused by the Veteran's time on active duty." Id. The Board finds that the VA examiner's opinion is internally inconsistent, contradictory, and thus inadequate for decision making purposes. Specifically, the VA examiner concludes that the Veteran's Hep C is less likely than not related to his active duty service but appears to apply a higher standard since he determined it was impossible to determine whether any the Veteran's behaviors or factors cause his Hep C despite listing them as main risk factors, including intravenous drug use. It appears that the VA examiner based the opinion on a higher degree of certainty rather than whether it is at least as likely as not the Veteran's Hep C was etiologically related to his active duty service. Moreover, generally, opinions that state an opinion cannot be provided without resorting to "mere speculation" are inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). As such, the Board finds that remand is necessary to obtain an addendum medical opinion addressing the nature and etiology of the Veteran's Hep C. See Nieves-Rodriguez, 22 Vet. App. at 302. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. See June 2012 VA Form 21-526. The Board notes that the Veteran has not been afforded a VA examination. In this case, the Veteran's VA treatment records demonstrate the Veteran has a diagnosis of sleep apnea. See March 2020, June 2015, and April 2012 VA treatment records. The Veteran asserted that he had sleeping issues while in service, indicated that he had sleep apnea in service, but did not see a doctor for treatment. See October 2016 DRO hearing testimony. The Veteran reported that his brother in arms did talk to him about his snoring. See March 2020 VA treatment records. In light of the above, the Board finds that the low threshold for provision of a VA examination described in McLendon has been met. Therefore, the Board finds that remand is necessary for a VA examination to determine the nature and etiology of the Veteran's diagnosed sleep apnea. The matters are REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who provided the March 2017 VA medical opinion, or, if that examiner is unavailable to another suitably qualified clinician, for completion of an addendum medical opinion. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. After a review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's Hep C had its onset during service or is otherwise etiologically related to an in-service event, injury, or disease. A complete rationale should be given for all opinions and conclusions expressed. The examiner must consider the Veteran's lay statements, including the October 2016 DRO hearing testimony and statements provided at the March 2017 VA examination. The VA examiner must consider the Veteran's service treatment records and post-service treatment records. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor or the proposition as against it. If the examiner cannot provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's sleep apnea. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran's sleep apnea had its onset during service or is otherwise etiologically related to an in-service injury, event, or disease. A complete rationale must be given for all opinions and conclusions expressed. The examiner must consider and address the Veteran's lay statements, including the October 2016 DRO hearing testimony and statements made to physicians, including the March 2020 VA treatment records. If the examiner rejects the Veteran's lay statements, he/she must provide a reason for doing so. If the examiner cannot provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.