Citation Nr: 21004483 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-23 970 DATE: January 27, 2021 ORDER Entitlement to service connection for a groin disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. The Veteran does not have a separate diagnosis related to his groin that is due to an in-service event, injury, or disease. His pelvic pain has been attributed to his service-connected right hip disability. 2. The Veteran’s current bilateral hearing loss has not been shown to have had its onset in service or within one year of service, and it is not otherwise shown to be related to active military service. 3. The Veteran’s right shoulder disability is not due to or a result of his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a groin disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1101, 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from April 1974 to August 1976. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran timely filed a notice of disagreement (NOD) and substantive appeal via a VA Form 9. In May 2019, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. An April 2020 Board decision remanded the claims decided herein for further development. In an October 2020 rating decision, the RO granted service connection for lumbar spine degenerative disc disease (DDD), resolving the claim for service connection previously on appeal. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 1. Entitlement to service connection for a groin disability The Veteran contends that he has a current groin disability related to his active military service. Service treatment records (STRs) reflect that in August 1976, a clinician noted trauma to testicles from a pool table. The Veteran reported swelling for about two days and the Veteran was put on light duty for the next day. The August 1976 separation report of medical examination reflects a normal clinical evaluation for the G-U system. Post-service, in March 2018 correspondence, the Veteran reported that he continued to feel pain in his groin/pelvic area and noticed blood in his urine. During the May 2019 Board hearing, the Veteran testified that he injured his groin area in service and the pain has continued since then. A July 2020 VA examination report reflects that the Veteran does not have, or has ever been diagnosed with, any conditions of the male reproductive system. The examiner explained that the groin pain is a symptom of his hip conditions and there is no chronic/active GU diagnosis. He found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that based on a review of active and post active duty records, he concluded that the Veteran has not been diagnosed with any urological condition as a cause of his claimed chronic groin pain. The Veteran has known chronic groin pain as a symptom of his chronic bilateral hip condition. VA treatment records were reviewed in connection with the claim and there are no notations of groin/pelvic pain and a groin/pelvic disability. Upon review of the evidence of record, the Board finds that service connection for a groin disability is not warranted. The weight of the above evidence reflects that the Veteran has not had a groin disability during the pendency of the claim. While a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service-connected disabilities”), here the evidence does not reflect any diagnosis or treatment for a groin disability. As the Veteran has not had a groin disability during the pendency of this claim, entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (“Without a current disability, of course, there can be no service connection and, thus, no disability compensation”). The Veteran reported groin/pelvic pain and pursuant to Saunders, 886 F.3d 3156, 1367-68, pain can constitute as a disability for VA purposes if it results in functional impairment. The claim must be denied, however, because the evidence does not establish that the Veteran has functional impairment separate and apart from his hip disorders, and there is no relationship between the Veteran’s current groin/pelvic pain and service; noting that the in-service injury appears to be an isolated even that resolved prior to separation. Moreover, any pelvic pain the Veteran experiences has already be contributed to his right hip disability which is service-connected. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection. The benefit of the doubt doctrine is not for application, and entitlement to service connection for is a separate groin disorder not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran contends that his bilateral hearing loss is due to his in-service noise exposure. STRs do not reflect a diagnosis, treatment, or symptoms of a hearing disability. The August 1976 separation report of medical examination shows hearing within normal limits. Military personnel records reflect that the Veteran was a combat engineer; thus, in-service noise exposure has been conceded. Post-service, a May 2013 audiology consult reports that pure-tone testing revealed a mild to severe sensorineural hearing loss in the right ear with a speech recognition score of 96 percent. Pure-tone testing of the left ear revealed a moderate to severe sensorineural hearing loss with a speech recognition score of 72 percent. In a February 2016 statement, the Veteran reported that he has suffered from hearing loss for the past 40 years. He stated that during his time in the Marine Corps as a Combat Engineer, he was exposed to prolonged extremely loud environmental and/or combat training related noises while he was on active duty. He reported that he was often exposed to extremely loud noises such as machine guns, mortars, artillery, airplane engines, explosive devices, land mines, and grenades. He reported that he was told to see the infirmary after they returned to base which could last a week to a month. He stated that by that time, his hearing would have returned. An August 2016 VA audiological examination report reflects the following pure tone thresholds in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 40 40 40 40 45 Left 40 40 35 40 40 The speech recognition score was 88 percent for the right ear and 92 percent for the left ear. The examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. He noted that the enlistment physical indicated hearing within normal limits bilaterally and the physical dated August 1976 indicated hearing within normal limits bilaterally. He reported that since service medical records documented hearing within normal limits during service, it is not likely that the current hearing loss began during service. In a September 2016 statement, the Veteran reported that his MOS was combat engineer where he was around explosives and ordinance and was subject to loud noise on a daily basis. He reported that the examiner also did not take into consideration all the live firing that was conducted. During the May 2019 Board hearing, the Veteran reported that he began to experience hearing loss within one year of separation from service. In a June 2020 addendum opinion, the audiologist found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that noise exposure is conceded. He reported that there was no permanent hearing threshold shift nor hearing loss present from entrance to separation. He stated that there was no evidence of acoustic trauma during military service. Post separation, the Veteran was a Tulane police officer. There was no evidence of hearing loss during service and the Veteran did not report hearing loss, hearing difficulty, or tinnitus at the time of separation. He reported that “Noise and Military Service-Implications of Hearing Loss and Tinnitus” Institutes of Medicine of the National Academy (2006) indicated that current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delay-onset hearing loss. Additionally, Mathur et al (July 2018) in an update on “Noise Induced Hearing Loss Clinical Presentation” indicated that once noise exposure is discontinued, noise induced hearing loss does not occur. He concluded that the claimed condition of hearing loss was less likely than not incurred in or caused by the claimed in service hearing loss as there was no hearing loss present during military service. Upon review of the evidence of record, service connection for a bilateral hearing disability is not warranted. As an initial matter, the preponderance of the evidence supports a current bilateral hearing loss disability and in-service noise exposure. Thus, the dispositive issue is whether there is a nexus between the two. The 2020 VA clinician’s opinion is probative medical evidence weighing against a nexus to military noise exposure. The June 2020 VA medical opinion is based on a review of the Veteran’s medical history, medical research, and a review of the audiological examination. The audiologist supported his opinion on an accurate review of the record and multiple medical research articles specifically addressing delayed-onset hearing loss. For these reasons, the Board places weight on the June 2020 VA clinician’s hearing loss opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s assertions and the chronic disease and continuity of symptomatology provisions for hearing loss. He is competent to report symptoms of decreased hearing, as this is an observable symptoms capable of lay observation. However, he is not competent to diagnose a hearing loss for VA purposes under the regulation, or to provide a medical opinion on causation where, as here, hearing loss was not noted for many years following discharge from service. The etiology of the hearing loss is in this case a complex medical matter. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). His reports do not specify that a continuity of symptomatology occurred. Notably, hearing difficulties or symptoms were not noted in VA treatment records until 2013. The absence of hearing complaints in combination with complaints of other disorders weigh against a continuity of symptomatology. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (silence within records is pertinent evidence when records would typically document event in dispute); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms). The evidence overall weighs against a continuity of symptomatology or continuous symptoms since service. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the Board has the responsibility to assess the credibility and weight to be given to evidence), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Moreover, to the extent that the Veteran is competent to opine as to the complex medical matters of the etiology of his hearing loss, the Board finds the specific, reasoned June 2020 VA medical opinion above to be of greater probative weight than the more general lay assertions in this regard. King v. Shinseki, 700 F.3d 1339, 1345 (Board may assign greater weight to medical evidence over lay evidence) (Fed. Cir. 2012). Moreover, hearing loss was not noted or shown as such in service. Finally, there is no medical evidence of record to contradict the opinion of the VA examiner. For the above stated reasons, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a right shoulder disability The Veteran contends that his diagnosed residuals of right rotator cuff repair and debridement, mild degenerative arthritis with mild AC separation, and mild calcific tendinopathy is due to his active military service. Specifically, he contends that he fell in service, injured his right shoulder, and was placed in a cast. STRs reflect a consultation report in the orthopedic service on June 19, 1975 which states “swelling down, tender on deltoid [recommend] 1. SV WC x 4 wk, 2. Light duty x 8 wk, 3. RTC 4 wk for removal of cast.” An August 1975 treatment note reflects that the Veteran reported that he injured his right ankle on June 19, 1975 and was placed on light duty. The note continued to report that the Veteran’s cast was removed, and he continued to have limited range of motion in his ankle. Post-service, VA treatment records reflect that the Veteran has had two right shoulder surgeries in 1998 and 2001. In an April 2016 statement, the Veteran reported that he hurt his shoulder falling off of a building in 1975 which resulted in him being in a cast for 4 weeks. A July 2016 VA examination report reflects that the Veteran has a diagnosis of residuals of right rotator cuff repair and debridement and mild degenerative arthritis with mild AC separation and mild calcific tendinopathy. The Veteran reported that in 1975, he injured his right shoulder while doing guard work at refugee camp. He stated that he was treated with a sling and cast for six weeks and diagnosed with a strained deltoid. He reported that his shoulder continued to be painful and he had two surgeries. He reported that his shoulder improved, but the pain returned. The examiner found that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that the military records do not document a shoulder injury in the Veteran’s military records. He stated that if the Veteran had a shoulder injury requiring a cast his current shoulder condition would have progressed to a more severe condition than simply signs of aging and mild arthritis. VA treatment records from 2016 reflect that the Veteran was seen for chronic right shoulder pain with slowly increasing symptoms over the last one year’s time. There was no intervening trauma. A June 2020 VA medical addendum opinion reflects that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the clinician reported that STRs were silent for a right shoulder injury. He reported that the STR note in August 1975 shows that it was his right ankle that was fractured and casted back in June 1975. The deltoid ligament was located along the medial ankle. The discharge examination in 1976 was silent for any shoulder injury and there was no chronic shoulder pain. He reported that during a 1994 examination, he did not have any complaints of right shoulder injury. He reported that a Tulane note in 2010 states history of two right shoulder surgeries in 1999 and 2001. He stated that this is approximately 23 years after separation. Thus, he concluded, his current right shoulder disability is not related to service. Upon review of the evidence of record, the Board finds that service connection for a right shoulder disability is not warranted. Initially, the Veteran has a current diagnosis as revealed in the medical evidence of record. The question remains as to whether there was an in-service injury and a relationship between the diagnosis and service. Based on a review of the available records, his particular expertise, and medical literature, the examiner found that the Veteran’s right shoulder disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner noted the Veteran’s statements regarding his reported in-service injury and provided an adequate rationale for his conclusion that the Veteran’s disability was not due to service. As the clinician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran, including through his representative, has opined that his right shoulder disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his right shoulder disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran’s statements are therefore not competent in this regard. To the extent that these lay statements as to observable pain since service are credible, they do not provide a competent opinion as to causation in this case as that opinion is not capable of lay observation. Accordingly, the Veteran’s statements as to causation are outweighed by the specific, reasoned opinion of the VA examiner which is accorded greater probative weight than the Veteran’s more general beliefs as to the likely etiology of a current right shoulder disability. Notably, the Veteran argued that his right shoulder was injured in a fall that occurred in 1975 with an injured deltoid. The STRs reflect an injury; however, it was to his right ankle only. The STRs specifically noted that the Veteran’s right ankle was in a cast that was subsequently removed. While it is possible that the Veteran injured his right shoulder in that same fall, the STRs did not reflect that this injury was reported or otherwise noted. Additionally, the August 1976 separation report of medical examination notes a normal clinical evaluation for the upper extremities. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for a right shoulder disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.