Citation Nr: 1752794	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  12-09 194	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for residuals of coccyx fracture to include as secondary to service-connected degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) of the lumbar spine.

3.  Entitlement to an initial rating in excess of 10 percent for service-connected status post right inguinal hernia with residuals (excluding a period of a temporary 100 percent rating based on surgery and convalescence from November 23, 2011 to January 31, 2012).


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for residuals of coccyx fracture is denied.

An initial rating in excess of 10 percent for service-connected status post right inguinal hernia with residuals is denied.


FINDINGS OF FACT

1.  The Veteran does not have a current bilateral hearing loss disability for VA purposes.

2.  The Veteran has not had residuals of a coccyx fracture at any time during the claim and appeal.  

3.  Throughout the rating period, the Veteran's status post residuals of right inguinal hernia have been manifested at most by a post-operative and recurrent hernia that is readily reducible; a small, postoperative recurrent, or unoperated irremediable hernia that is not well supported by a truss, or not readily reducible has not been demonstrated.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not all been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for residuals of a coccyx fracture have not all been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).

3.  The criteria for a disability rating in excess of 10 percent for service-connected status post right inguinal hernia with residuals are not met.  38 U.S.C.A. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.114, Diagnostic Code 7338 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty for training (ACDUTRA) in the U.S. Army Reserves from June 27, 1983 until November 21, 1983, and in the U.S. Army from November 22, 1996 until July 15, 1997.  The Veteran had additional service in the Reserves.  The Veteran's DD 214s show that he was in receipt of a parachute badge, an M-16 expert badge, and had service in Bosnia from December 1996 until June 1997.  In a May 2009 statement, the Veteran reported that he did not have his DD 214 from his period of service in Belize; however, military personnel records show that the Veteran was on annual training in Belize from January 2, 1990 until January 18, 1990 and from January 10, 1993 until February 10, 1993.  Service personnel records also reflect a discharge from the United States Army Reserve in August 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

The Veteran requested a hearing before a member of the Board; however, in a May 2014 statement the Veteran elected to have a Decision Review Officer (DRO) hearing in lieu of a Board hearing.  In June 2014, the Veteran was afforded a DRO hearing and a transcript of that hearing has been associated with the claims file.

In September 2016, the Board remanded these matters for further evidentiary development.  There has been substantial compliance with the Board's remand directives.

1. Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

A. Bilateral Hearing Loss

For the purposes of applying the laws administered by VA, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

As explained below, the evidence shows the Veteran does not have a current bilateral hearing loss disability as defined by VA regulations.

An October 2010 VA examination revealed the following auditory thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
15
20
25
LEFT
20
20
15
20
20

Speech recognition scores were 100 percent bilaterally and noted as excellent.





A May 2017 VA examination revealed the following auditory thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
15
25
LEFT
15
20
10
20
25

Speech recognition scores were 100 percent bilaterally.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F.3d 1328 (1997).  While the Veteran is competent to report symptoms of hearing loss, he does not possess the skill or expertise to diagnose hearing loss within the meaning of 38 C.F.R. § 3.385, which requires audiometric testing.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  There is nothing that suggests the Veteran has a bilateral hearing loss disability in accordance with VA standards.  Indeed, VA examinations have not revealed a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.  As the preponderance of the evidence shows there is not a bilateral hearing loss disability, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim of entitlement to service connection for bilateral hearing loss must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).

B.  Residuals of Coccyx Fracture

The Veteran asserts that he has a disability due to residuals of a coccyx fracture that is related to service.

Service treatment records (STRs) are silent as to complaints of or treatment for a disability of the coccyx.  In an October 1983 STR, it was reported that the Veteran had complaints of back pain.  In a largely illegible service record, it was noted that the Veteran had been deployed since November 22 (no year provided) and had complained of lower back pain.  It was also noted that the Veteran reported breaking his tailbone 10 years prior and having constant dull pain.  A February 1997 STR noted that the Veteran slipped on ice and fell onto his back while wearing body armor and carrying a personal assault weapon.  June 2006 private MRI testing results were significant for L5-S1 and L3-4 disc degeneration.  At the June 2014 DRO hearing, the Veteran again testified that his current back condition was etiologically related to multiple in-service parachute jumps, and the carrying of heavy military equipment.  The Veteran reported that he received treatment for the broken tailbone at Fort Sill.

Service connection has since been established for DDD with IVDS of the lumbar spine.  However, the Veteran asserts that service connection is also warranted for residuals of a coccyx fracture.  

Pursuant to the September 2016 Board remand, the Veteran was afforded a June 2017 VA examination of his lumbar spine.  For the Veteran's claimed condition of residuals of a coccyx fracture, the examiner noted that there was insufficient pathology to warrant a diagnosis.  The examiner further opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury as x-rays showed no current coccyx diagnosis.  

The examiner is shown to have conducted a thorough examination, to have reviewed the pertinent evidence of record and considered the Veteran's reported history and assertions, and to have provided an adequate rationale for the opinion. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993).

Significantly, neither the Veteran nor his attorney has presented or identified any contrary medical opinion that supports the claim.  The Veteran has not submitted any competent documentation showing that he has the claimed disability.  VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991).

The threshold question that must be addressed in this matter is whether there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought (a coccyx disability).  In the absence of proof of a current disability there is no valid claim for service connection either on a direct or on a secondary service connection theory of entitlement.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999).  On review of the record the Board has found that there is no such evidence in the record.

The Board notes that the Veteran is competent to provide evidence as to observations and some medical matters, but that his statements are, at most, conclusory assertions that his symptoms are associated with a coccyx disability.  Jandreau, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006).  As questions of medical diagnosis and a relationship to service are complex etiological questions of the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence).  Therefore, the claim for entitlement to service connection as to residuals of a coccyx fracture must be denied. 

As the preponderance of the evidence shows there is not a coccyx disability, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim of entitlement to service connection must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).

2.  Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A.  Status post Right Inguinal Hernia with Residuals

Service connection has been established for post-operative residuals of right inguinal hernia and a noncompensable rating was assigned, effective April 30, 2009, by way of a November 2009 rating decision.  In July 2011, the RO increased the Veteran's rating of his status post right inguinal hernia to 10 percent effective April 30, 2009.  The Veteran is currently in receipt of the 10 percent evaluation under 38 C.F.R. § 4.114 Diagnostic Code 7338 (2016) for inguinal hernia that is postoperative, recurrent, readily reducible, and well supported by truss or belt. 

Pursuant to Diagnostic Code 7338, a 10 percent rating is warranted for a post-operative recurrent inguinal hernia, which is readily reducible and well supported by a truss or belt.  A 30 percent rating is warranted if the inguinal hernia is small, post-operative and recurrent, or is unoperated and irremediable, and is either not well supported by a truss or is not readily reducible.  A 60 percent rating is warranted for an inguinal hernia which is large, post-operative, and recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable.  38 C.F.R. § 4.114, Diagnostic Code 7338.

A May 2008 VA treatment record shows that the Veteran underwent hernia surgery.  2009 and 2010 VA treatment records reflect the Veteran's complaints of increased chronic pain in the groin status post hernia repair.  A June 2008 VA treatment record shows that the Veteran presented for treatment following the May 2008 surgery.  He reported waking up two days prior and feeling a knot in the right lower quadrant of his abdomen where the surgery was done.  The knot was painful when he moved around.  Physical examination revealed no sign of infection or wound dehiscence.  The Veteran had no other symptoms and was urinating and defecating without complication.

The Veteran was afforded a VA hernia examination in October 2010.  He expressed that his current treatment included taking Tylenol with codeine.  On physical examination, there was no swelling or bulge and no recurrent hernia noted.  There was, however, tenderness present along the spermatic cord and the right testicle was tender.  

The Board notes that in July 2011, the RO increased the Veteran's rating of his status post right inguinal hernia to 10 percent based on the VA treatment records showing he had additional surgery in May 2008 with continued pain in the groin due to the hernia.

VA surgery reports show that in November 2011 the Veteran underwent laparoscopic inguinal hernia repair with mesh placement.  (As noted above, the Veteran has been granted a temporary total evaluation for surgical hernia repair effective November 23, 2011 to January 31, 2012.)

Pursuant to the September 2016 Board remand, the Veteran was afforded a June 2017 VA examination.  Examination revealed that no right hernia was detected.  The examiner found no physical findings, complications or other signs or symptoms of the Veteran's postoperative right inguinal hernia other than the need to limit heavy lifting.  

In this case, the overall evidence reflects that, throughout the course of the appeal, the Veteran's post-operative residuals of right inguinal hernia have been manifested at most by a small, post-operative and recurrent hernia that is readily reducible.  These symptoms meet the criteria for the currently assigned 10 percent, but no higher, disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7338.  The evidence does not reflect findings of a recurrent hernia that is not well supported by a truss, or not readily reducible to warrant a disability rating in excess of 10 percent. 38 C.F.R. § 4.118, Diagnostic Code 7338.

In summary, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for the Veteran's postoperative residuals of right inguinal hernia.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	S. Gordon, Associate Counsel
	
Copy mailed to:  Disabled American Veterans
Department of Veterans Affairs