Citation Nr: 21077408 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-41 226 DATE: December 29, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is denied. Entitlement to service for a groin condition is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have its onset in service; did not manifest within one year of service; and is not attributable to service, including noise the Veteran was exposed to during service. 2. The evidence is against finding that a groin condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service for a groin condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to November 1978. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2014 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in April 2018. A transcript of the hearing is associated with the electric claims file. In April 2019 and March 2021, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for bilateral sensorineural hearing loss The Veteran contends that his bilateral hearing loss is due to exposure to continuous loud noises, including while working in an infantry unit and motor pool. See Transcript of August 2018 Board Hearing at 5. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. On the VA audiological evaluation in June 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 30 40 LEFT 15 15 25 35 45 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. The Board finds there is a diagnosis of a bilateral hearing loss disability in each ear, as defined by 38 C.F.R. § 3.385. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows that exposure to loud noises occurred, the evidence weighs against finding that the Veteran's diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with bilateral hearing loss until June 2014, 36 years after his separation from service. While the Veteran is competent to report having experienced symptoms of difficulty hearing over the years, he is not competent to determine that these symptoms were manifestations of bilateral hearing loss for VA purposes. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The April 2021 VA examiner opined that the Veteran's bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that there is nothing to support late onset of hearing loss. The VA examiner noted the Veteran complained of frequent colds upon the exit examination in 1977 and did not report complaints of hearing problems or tinnitus. The Veteran's ear issues during service resolved. The Veteran's records indicate his MOS to have a low probability of hazardous noise exposure. Exit and separation examinations showed normal hearing bilaterally. The Board finds the VA opinion to be a probative opinion and is dispositive of the nexus question presented in this case. The VA opinion reflects the expert's knowledge and skill in analyzing the data. The opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. The expert was familiar with the Veteran's pertinent medical history. The expert provided an opinion about an area within her expertise. The opinion is the product of reliable principles and methods, and is the result of principles and methods reliably applied to facts. There is no medical evidence to refute this probative medical evidence. The Veteran believes his hearing loss is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex as it requires knowledge of audiology to include the effects of noise exposure on the ear. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2021 VA opinion. The Veteran's representative has argued that the Veteran's separation audiological examination was insufficient because he was not administered the Maryland CNC test. See Appellate Brief at 2. However, VA does not dictate the content of medical examinations provided by the military and instead must rely on information provided in a veteran's STRs, and any other available medical evidence. If the representative means to imply that the Veteran could have had bilateral hearing loss per VA standards at service separation according to a Maryland CNC examination, the Board notes this would be pure speculation and the record does not otherwise support such a finding. As such, service connection on a direct basis is denied. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. 2. Entitlement to service for a groin condition The Veteran contends that his groin condition is due to being hit in the right groin and testicle during service. See Transcript of August 2018 Board Hearing at 4. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of right groin strain and residual of right inguinal hernia repair (groin condition), and evidence shows that the Veteran was hit in the groin and testicle during service, the evidence weighs against finding that the Veteran's diagnosis of groin condition began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with groin pain and right inguinal hernia until October 2012, over three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of pain in the groin over the years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a groin condition. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In April 2021, the VA examiner opined that the Veteran's groin condition is at least as likely as not related to an in-service injury, event, or disease, including being struck in the groin and testicle during service. The examiner noted that medical records noting an in-service injury was not found. The RO requested an addendum opinion to the April 2021 VA opinion due to internally inconsistent findings. The September 2021 addendum VA opinion found that the Veteran's groin condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that while STRs indicate the Veteran was hit in the groin during service, this is not synonymous with development of inguinal hernia which was not diagnosed until 2012. Consequently, the current condition is likely to represent a separate distinct disease process. The Board finds the September 2021 VA opinion to be the most probative opinion and is dispositive of the nexus question presented in this case. In particular, the September 2021 VA opinion reflects the expert's knowledge and skill in analyzing the data. The opinion contains a clear conclusion with supporting data and a reasoned medical explanation connecting the two. The expert was familiar with the Veteran's pertinent medical history. While the Veteran's representative asserts the VA examiner did not adequately acknowledge the Veteran's in-service injury, the Board finds that the September 2021 VA examiner did consider the Veteran's in-service injury. The examiner noted the Veteran's STRs reflect the Veteran was hit in the groin during service and found that the incident was not synonymous with development of an inguinal hernia. Consequently, the Board gives more probative weight to the September 2021 VA examiner's opinion. The Veteran believes his groin condition is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2021 VA opinion. In light of the above discussion, the Board concludes entitlement to service connection for a groin condition is denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.