Citation Nr: 1320659 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-29 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for abdominal muscle and groin strains. 2. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from May 2003 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought. In November 2011, the Board remanded the case for further development. The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT During the appeal period, the Veteran does not have a diagnosis of any abdominal muscle and groin strains disorder. CONCLUSION OF LAW The criteria for service connection for abdominal muscle and groin strains have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by a number of letters sent between September 2005 and November 2011. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in April 2013. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA and private medical records. The Veteran was afforded pertinent VA examinations in April 2007 and March 2013. The Board has reviewed the reports of these examinations. As the examination reports are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. I. Principles of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Chronic conditions are those defined by the Secretary in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). II. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, as a lay person, the Veteran is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When the evidence is competent, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the competent evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). III. Merits of Claim The Veteran claims service connection for a muscular system condition, particularly abdominal muscle and groin strains. In a February 2007 statement, the Veteran reported that he was diagnosed with the claimed stomach/groin condition during service in December 2003. A February 2007 statement from a different Veteran who knew the Veteran in service essentially confirms that the Veteran was treated in service for groin pain. Service treatment records show that in January 2004, the Veteran was seen for complaints of a stomach pain down to the groin, and left scrotum mass, not associated with a recent injury. Left scrotum guarding by the Veteran prevented full examination, but the provider recorded findings of possible bulge of the left scrotum. The provider referred the Veteran to general surgery service, which examined the Veteran two days later that month for concerns of a left inguinal hernia. A January 2004 outpatient clinic note of the general surgery service shows that the Veteran reported that he was moving heavy boxes four days earlier and developed a strain with significant pain in the left groin and left medial thigh. The Veteran reported that the symptoms seemed to be a strain and that he had a similar groin injury years before due to performing heavy squats. The Veteran reported that his pain was significantly improved and was nearly resolved. The assessment was that the Veteran was "with groin strain, now improved. The patient has been placed on a profile for the next three weeks for no heavy lifting and no aggressive PT." Post-service, the report of an April 2007 VA examination shows that the Veteran reported a medical history that during service he was lifting a heavy chain in December 2003, and the next morning he had a bulge in the left lower abdomen. It was painful to the touch and the pain radiated to his left testicle. He reported that this was diagnosed at the time as left abdominal and left groin strain. The Veteran reported that he now continued to have pain to the left abdominal area that radiates into the left groin. He denied having any erectile dysfunction, urinary complaints, or gastrointestinal complaints. On examination, the examiner found the Veteran had a large abdomen, which was soft with bowel sounds present in all four quadrants. He had a bulge to the left lower quadrant of the abdomen about 4.5 cm in diameter, which was tender, with no rebound tenderness. The Veteran had no periumbilical tenderness, and he was negative for umbilical hernia. There was no bulge to the inguinal region. After examination the report contains an impression of (1) abdominal muscle strain-no correlating findings by CT; and (2) left groin strain-no correlating findings by ultrasound. Later in April 2007, the Veteran underwent VA ultrasound examination of the scrotum and CT examination of the abdomen. The reports of these examinations concluded with respective impressions of (1) testicular microlithiasis, no testicular mass, recommend six-month follow-up sonogram, (2) no evidence of left inguinal hernia or left lower quadrant abdominal fluid collection or mass; if pain persists in this region suggest abdominal CT, (3) fatty infiltration of the liver, hepatomegaly, and (4) mild prostatic enlargement, clinical correlation is suggested. The report of a March 2013 VA examination for hernias shows that the Veteran reported that he did a lot of heavy lifting during service in his job as tank mechanic, and as a result, during service he started noticing a sensation over the left lower abdomen and tingling in the testicular area and into the inner left thigh. He also noticed a bulge at the left lower abdomen. He reported current complaints of soreness over the left lower abdominal area and shooting pains from there to the inner left upper thigh area. On examination, no inguinal or femoral hernia was detected on the right or left, and no ventral hernia was detected. Pertinent findings included "moderately obese abdomen; there is a slight protrusion of the left lower abdominal fatty tissue noted. Abdominal examination otherwise was negative." The examiner commented that there was no evidence of any type of hernia on examination; and there was no current disability in the left lower quadrant found. No bulge was found present in the scrotum and the Veteran denied having any previous bulge in the testicular area. Although the Veteran's claims file was not available during the March 2013 VA examination, a later March 2013 addendum report shows that the file was received and reviewed. In the addendum, the examiner commented that on the day of the VA examination, there was no disability in the left lower quadrant found, there was no inguinal hernia, and no evidence of any bulges in the scrotum. The examiner also commented that the findings noted during service in January 2004, (i.e., groin strain with no bulges or inguinal hernia), would not cause a left lower quadrant disability. In sum, at no time during the pendency of the claim has a muscular system condition of abdominal muscle and groin strains been diagnosed. The Veteran's essential claim is that he has an abdominal muscle and groin strains that were caused by an injury during service due to heavy lifting then. The findings from the two VA examinations clearly show that there is no diagnosis of any chronic muscle strain condition referable to the claimed injury in service. The April 2007 VA examination impressions show there were no correlating diagnostic findings for an abdominal muscle strain or for a left groin strain. The VA examiner in March 2013 found that there was no current disability in the left lower quadrant, and specifically found there was no bulge in the scrotum or inguinal hernia. The Veteran is not shown to be competent to diagnose abdominal muscle and groin strains. Although he is competent to attest as to symptoms he has observed, a diagnosis of muscle and groin strains are not simple medical conditions for which lay evidence can make a diagnosis, and clearly, his reported symptoms have not later supported a diagnosis by a medical professional. Further, muscle and groin strains are not conditions under case law for which lay observation has been found to be competent to establish the presence of disability. Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). As there is no current diagnosis of muscle and groin strains, it is unnecessary to consider the claim under other theories of service connection, including secondary service connection. In short, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit-of-the-doubt standard of proof does not apply. Service connection is not warranted for muscle and groin strains. 38 U.S.C.A. § 5107(b). ORDER Service connection for muscle and groin strains is denied. REMAND A remand of the Veteran's claim for service connection for bilateral hearing loss is necessary for the following reasons. At the time of the Veteran's January 2003 entrance examination prior to service, audiology findings in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 25 20 25 LEFT 15 10 30 20 25 At the time of an August 2004 examination for the purpose of a medical board, audiology findings in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 20 10 20 LEFT 15 15 25 15 25 Service treatment records do not include hearing test findings at the approximate time of the Veteran's discharge from service in November 2004. The report of a VA audiology consultation in July 2007 shows that the examining audiologist commented that the Veteran's present hearing loss was very marginal for amplification. Audiology findings in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 30 40 LEFT 15 20 30 30 40 Notably, however, the July 2007 VA audiology consultation report contains a comment that the report was not adequate for rating purposes. No further explanation as to why is offered. The report of a November 2007 VA audiology examination includes audiology findings in pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 25 LEFT 10 15 20 20 25 Speech recognition was 100 percent in the right ear and in the left ear. The report contains a diagnosis of hearing within normal limits at all rating frequencies. The examiner commented that an opinion as to the etiology of the Veteran's hearing loss regarding any nexus with service was not necessary since the hearing thresholds were within normal limits for rating purposes. It is not clear why the VA audiologist at the July 2007 consultation determined that the examination was not adequate for rating purposes. However, the threshold levels as recorded in July 2007 appear to meet the criteria for a bilateral hearing loss disability under VA criteria. See 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Given the disparity in findings between the July 2007 and November 2007 VA audiology findings, the Veteran must be afforded an examination to clarify whether there is a present hearing loss disability pursuant to VA criteria. Id. Furthermore, if a present hearing loss disability is shown in one or both ears, then an opinion is necessary as to the likelihood that such hearing loss disability is etiologically related to service. Such opinion is necessary given the complex factual background-the absence of audiology findings at discharge; the Veteran's reported service specialty placing him in close proximity to military vehicle engine noise versus the potential etiology of noise post service working in a Post Office, and the short time frame between the end of service and the July 2007 audiology finding, presumably showing a hearing loss disability less than three years after service. As such, this matter must be remanded to afford the Veteran another VA examination. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records pertinent to the bilateral hearing loss claim. 2. Notify the Veteran that he may submit statements from himself and others who have observed the Veteran describing their impressions regarding the onset and chronicity of hearing loss during and since service. Provide the Veteran with an appropriate period of time for the receipt of such requested lay evidence. 3. Afford the Veteran a VA audiology examination by a VA examiner to determine: whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that any hearing loss is related to noise exposure, or other injury or disease, in service. The Veteran's file must be made available to the VA examiner. The examiner should elicit from the Veteran a history of noise exposure or other injury or disease, and bilateral hearing loss symptoms, both during and after service. All indicated studies should be performed and all findings should be reported in detail. In offering opinions, the examiner must acknowledge and discuss the Veteran's report of a continuity of relevant symptoms since service, and any current relevant symptoms and diagnosis regarding the hearing loss condition. In formulating an opinion, the VA examiner is asked to explain the medical principles relied on to reach the conclusion in the opinion and to discuss the other risk factors in the record for developing hearing loss, for example, postservice occupational or recreational noise exposure. 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 of the proposition as it is to find against it. 4. After the development is completed, adjudicate the claim on the merits, considering all the evidence of record. If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs