Citation Nr: 21076205 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-52 629 DATE: December 22, 2021 ORDER Entitlement to service connection for right humeral fracture, status post ORIF is denied. Entitlement to service connection for right radial nerve neuropathy is denied. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for temporomandibular joint dysfunction (TMJ) is remanded. Entitlement to service connection for right index finger fracture is remanded. Entitlement to service connection for inguinal hernia is remanded. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran's right humeral fracture clearly and unmistakably existed prior to enlistment and was not aggravated by his service. 2. The most probative evidence of record shows that the Veteran's right radial nerve neuropathy clearly and unmistakably existed prior to enlistment and was not aggravated by his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right humeral fracture have not been met. 38 U.S.C. §§ 1131, 1153 (2018); 38 C.F.R. §§ 3.303, 3.306. (2020). 2. The criteria for service connection for right radial nerve neuropathy have not been met. 38 U.S.C. §§ 1131, 1153 (2018); 38 C.F.R. §§ 3.303, 3.306. (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from November 2008 to November 2012. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). In general, service connection requires competent evidence showing: (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). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). Section 1153 provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306 (a). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). 1. Service Connection Right Humeral Fracture, Right Radial Nerve Neuropathy The Veteran asserts that his right humeral fracture and right radial nerve neuropathy were caused or incurred during active service. STRs show that the Veteran had a comminuted right distal humeral shaft fracture and also suffered from radial nerve palsy prior to his entry into active service. The Veteran was diagnosed with right radial neuropathy in September 2005. A September 2007 orthopedic treatment note indicated that the Veteran would never regain full normal sensation on the dorsum of his right thumb. At that time, focal tenderness over the incision to even light tough caused a dysesthetic sensation and the Veteran had tenderness at the extensor supinator muscle over which caused pain into the distribution of the superficial radial nerve. However, motor function was entirely intact. During a May 2010 service examination, the Veteran indicated that he had numbness on the top of his right thumb on May 6, 2010. He also noted stated that he did not have any weakness or additional problems. In this case, because right humeral fracture and right radial nerve neuropathy were noted at entry, the presumption of soundness does not attach to these disorders. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A review of VA and private outpatient treatment records reveals no findings linking right humeral fracture and right radial nerve neuropathy to service. These records further do not show any evidence that the Veteran's preexisting right humeral fracture and right radial nerve neuropathy were aggravated during his term of active-duty service. At a November 2013 VA examination, the Veteran's right shoulder had a full and painless range of motion (ROM). Peripheral nerve examination revealed right radial nerve neuropathy. There was incomplete paralysis of the radial nerve with moderate subjective symptoms of intermittent pain and numbness. Muscle strength, deep tendon reflex, and sensory exam testing were all within normal limits. There were no signs of trophic changes or muscle atrophy present. In an October 2017 VA medical opinion, the examiner opined that that the Veteran's right radial nerve neuropathy clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. In providing a rationale, the examiner noted that the Veteran's right humeral fracture was sustained prior to entry into active service, the May 2010 in-service treatment note was part of the review of the injury's history, and the Veteran reported that there is now only numbness on top of the right thumb with no additional weakness or problems. The examiner also noted that review of other STRs does not indicate any complaints of increased numbness, weakness or other new or worsened symptoms that would be related to the right radial nerve. Regarding the moderate incomplete paralysis of the right radial nerve found at the November 2013 VA examination, the examiner stated there were subjective complaints of weak grip in the medical history, however on the actual examination muscle strength testing was checked as all normal and no muscle atrophy was noted. Reflexes and sensory examination were also checked as all normal. The examiner stated that with the objective findings above, he would have rated the Veteran's neuropathy symptoms as mild incomplete paralysis at the most. The examiner found that this mild degree of incomplete paralysis of the right radial nerve is entirely consistent with the expected natural course and progression of his pre-existing right radial nerve injury and does not represent any worsening during active-duty service. With regard to the Veteran's right humeral fracture, the examiner opined that the disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. As rationale, the examiner noted that the treatment notes prior to entry show that the Veteran's right humeral fracture had healed. Additionally, the November 2013 VA shoulder examination shows normal shoulder ROM without pain or tenderness. Flexion and abduction strength was normal. The examiner concluded that there is no documented permanent worsening of the pre-existing right humerus fracture. The Board finds that the October 2017 VA medical opinions are adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there are no medical opinions of record to the contrary. As such, the VA medical opinions of record are the most probative evidence of record. While laypersons are competent to report observable symptoms of right humeral fracture and right radial nerve neuropathy, he is not competent to provide an opinion linking those disabilities to active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for right humeral fracture and right radial nerve neuropathy is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran contends that service connection is warranted for hearing loss. In a May 2010 Report of Medical History, the Veteran reported that he experienced hearing loss and specifically stated that his "hearing went down from last year." The Veteran was afforded a Hearing Loss and Tinnitus DBQ in November 2013. At the time of examination, the Veteran reported that he participated in combat activity and that his duties during military consisted of "Gunner's Mate." He stated that he fired weapons with both hands, used hearing protection, and required a hearing conservation program. Upon examination, the examiner noted that the audiological findings did not meet VA's criteria for impaired hearing, bilaterally. The Board finds that this examination is too remote in time to provide information regarding whether or not the Veteran currently has hearing loss of both or either ears for VA purposes. Thus, the Board finds that a contemporaneous VA examination is needed to fully and fairly evaluate the Veteran's claim for service connection. 2. Entitlement to service connection for TMJ is remanded. The Veteran contends that service connection is warranted for TMJ. The Veteran's service treatment records are silent as to a diagnosis of, treatment for, or complaints relating to TMJ. The Veteran was afforded a Temporomandibular Joint (TMJ) Conditions DBQ in November 2013. The examiner noted that the Veteran had a diagnosis of TMJ. In obtaining medical history from the Veteran, he reported that the date of onset of his symptoms was in 2010, at which time he described that he noticed "clicking and popping in right side of jaw." He stated that the condition has remained fairly constant. The Board finds that a remand is warranted as the examiner provide an opinion as to the etiology of the Veteran's TMJ. 3. Entitlement to service connection for a right index finger fracture is remanded. The Veteran contends that service connection is warranted for a right index finger fracture. As an initial matter, the Board notes that the Veteran's service treatment records are silent as to a diagnosis of, treatment for, or complaints of a right index finger fracture. The Veteran was afforded a VA Hand and Fingers DBQ in November 2013, at which time an examiner noted that the Veteran had a diagnosis of a right index finger fracture. While a VA examination was provided to the Veteran, an etiology opinion was not provided. On remand, an addendum opinion should be obtained to determine the nature and etiology of the Veteran's diagnosed right index finger fracture. 4. Entitlement to service connection for inguinal hernia is remanded. The Veteran contends that service connection is warranted for an inguinal hernia. As an initial matter, a clinician noted that the Veteran had an inguinal hernia at entry. See May 2008 Report of Medical Examination. It also shows that the Veteran was to undergo hernia repair in June 2008. In November 2013, the Veteran underwent an Abdominal, Inguinal, and Femoral Hernias DBQ. The examiner noted that the Veteran had an inguinal hernia. The Veteran reported that his condition began and was diagnosed in 2008. He stated that his current symptoms included "sharp pain around the scar." The examiner noted that the Veteran's condition did not impact his ability to work and stated that the Veteran did not have any post-surgical inguinal hernia complications on the right side. Here, however, the examiner did not opine as to whether the Veteran's condition was aggravated beyond the normal progression, to include the Veteran's lay statements relating to pain. On remand, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers, both private and VA, who may have additional records pertinent to the remanded claims. After the Veteran has signed any appropriate releases, any relevant records identified that are not duplicates of those already contained in the claims folder should be requested. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. After examining the Veteran, and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his hearing loss was incurred in, aggravated by, or etiologically related to his military service, to include as due to noise exposure in service. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's TMJ is at least as likely as not (a 50 percent probability or greater) related to his active duty. The opinion must contain a rationale and must consider the Veteran's lay statements that his condition onset in 2010. If the examiner determines that a new examination is needed, one should be scheduled. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right index finger fracture is at least as likely as not (a 50 percent probability or greater) related to his active duty. The opinion must contain a rationale and must consider the Veteran's lay statements. If the examiner determines that a new examination is needed, one should be scheduled. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. 5. Then, arrange for a VA examination (or telehealth interview) to determine the nature and likely cause of the Veteran's inguinal hernia. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, and interview and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Was there an increase in the Veteran's inguinal hernia during service? If the evidence (to include the Veteran's own reports and statements submitted in support of his claim) reflects such an increase, the examiner should specifically find whether there is clear and unmistakable evidence that any increase was due to the natural progress of the disorder. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, Associate 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.