Citation Nr: 21007620 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-01 281 DATE: February 10, 2021 ORDER Entitlement to service connection for a left testicular condition is denied. REMANDED Entitlement to service connection for a left elbow condition is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a left testicular disability at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a left testicular condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Marines from February 1997 to April 2007. 1. Entitlement to service connection for a left testicular condition The Veteran contends that he has a left testicular condition which is related to his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 the Veteran does not have a current diagnosis of any left testicular condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In November 2019 a VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of pain in his left testicle with heavy lifting or sneezing, he did not have a diagnosis of any left testicular condition. Further, VA treatment records from May 2009 to August 2020 do not contain a diagnosis of any left testicular condition. The Federal Circuit has held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356 at 1367-69 (Fed. Cir. 2018). However, even taking this into account and finding the Veteran’s reports of experiencing left testicular pain with sneezing and heavy lifting, usually lasting one to two minutes before fading, does not reach the level of a functional impairment of earning capacity. The Veteran has not had to seek treatment for this pain and reports either using over the counter medication or waiting a couple minutes for it to go away when it occurs. He has reported no impact on any employment and the November 2019 VA examiner opined that it would not have any impact on the Veteran’s ability to work. While the Veteran believes he has a current left testicle disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of the Veteran’s medical records and the November 2019 VA examination and opinion. Because the Veteran does not have a current left testicular disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim, service connection for a left testicular condition is not warranted. REASONS FOR REMAND 2. Entitlement to service connection for a left elbow condition and left ankle condition In November 2019 VA provided examinations to determine the nature and etiology of the Veteran’s claimed left elbow and left ankle conditions. For each condition the examiner opined that it was less likely than not related to noted in-service complaints and relied on the lack of evidence of continuing symptoms between service and the present. For each condition, the examiner noted the Veteran’s report of symptoms with onset during service continuing to the present. The examiner gave no reason for discounting the Veteran’s testimony. The Veteran is competent to report the onset and timing of his own subjectively experienced lay observable symptoms, such as pain in his elbow or ankle. For each condition, a new opinion which addresses the Veteran’s lay evidence is needed to fairly resolve the appellant’s claims. 3. Entitlement to service connection for bilateral hearing loss In a January 2021 statement, the Veteran asserted that the his bilateral hearin loss has increased in severity since the Veteran was last examined by VA in October 2019. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his claimed hearing loss. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s left elbow condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the Veteran’s left elbow condition at least as likely as not related to service, including March 1997 tendonitis? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? If the examiner diagnoses left elbow arthritis they should opine whether it is at least as likely as not that the arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Only if the examiner cannot provide the required opinions based on the evidence of record, schedule the Veteran for an appropriate in-person examination. 2. Obtain an opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s left ankle condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s left ankle condition at least as likely as not related to service, including in service complaints from January 1997, May 1998, and December 1998? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? If the examiner diagnoses left ankle arthritis they should opine whether it is at least as likely as not that the arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Only if the examiner cannot provide the required opinions based on the evidence of record, schedule the Veteran for an appropriate in-person examination. 3. Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: Does the Veteran have hearing loss which is at least as likely as not related to service, including exposure to hazardous noise levels while working in the motor pool? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? If the examiner diagnoses sensorineural hearing loss they should opine whether it is at least as likely as not that the sensorineural hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.