Citation Nr: 21015383 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-33 260 DATE: March 17, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for chronic right groin abductor ligament strain is remanded. FINDINGS OF FACT 1. A right ear hearing loss disability was not manifest during service, sensorineural hearing loss was not manifest within one year of separation, and a right ear hearing loss disability is unrelated to service. 2. Tinnitus was not manifest during service or within one year of separation, and tinnitus is unrelated to service. CONCLUSIONS OF LAW 1. Right ear hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system (sensorineural hearing loss) may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to February 1985. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. & 2. Right ear hearing loss disability & tinnitus The Veteran contends that he has a right ear hearing loss disability and tinnitus because of service, specifically due to military noise exposure from demolition training with use of explosives (dynamite, C4, grenades, etc.) as well as rifle and machine gun fire without hearing protection. The Veteran has stated he believed his hearing loss started around 2002. See September 2012 VA examination report. The Veteran started having bilateral tinnitus since onset around the year 2004. See August 2019 VA examination (noting also tinnitus occurred way after the military). 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, 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. On what is most likely the last report of medical examination in service (listed as having occurred after two years of military service, but with no date) states the Veteran’s ears general and ear drums were normal on clinical evaluation. The audiometer reads as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 10 5 0 10 LEFT 5 5 10 10 5 15 A separation report of medical history dated in perhaps October 1984 (the date is unclear) shows the Veteran denied hearing loss or ear trouble. VA treatment records show the Veteran was considered to have normal hearing as recently as July 2012, when a physical therapy consultation reported hearing was intact. Twice, including after a Board remand in August 2018, VA examinations were obtained. In both cases, the VA examiner found invalid results, including after reinstruction. A September 2012 VA examination report states that a diagnosis could not be made due to inconsistencies in the examination. The August 2018 VA examination reports states the Veteran seemed to become irritated at re-instruction/urging to respond to the softest sounds and it was hard for him to hear the lower frequencies due to his tinnitus. The examiner reported that the Veteran likely has hearing loss but there were too many inconsistencies in the testing. The examiner could not give an opinion due to the inconsistent results for both tinnitus and hearing loss. The examiner in the last examination did make a finding of sensorineural hearing loss in both ears. The Board notes that the duty to assist is not a one-way street or a blind alley. Both the RO and the Board attempted to obtain examinations that would establish the etiology of the Veteran’s disability, but the Veteran was not able to produce valid test results. Based on the evidence of record, there is no causal relationship between the claimed disabilities and service. The Board has considered the Veteran’s lay statements regarding a hearing loss disability and tinnitus. The Veteran is competent to provide evidence of which he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has not reported that hearing loss or tinnitus started in service, instead noting both emerged many years after service. The Veteran did not complain of hearing loss or tinnitus at the time of discharge from service. The Veteran has not contended the right ear hearing loss or tinnitus started in service. For tinnitus and hearing loss, he reported it started many years after service, in the early 2000s. The evidence is against a finding that tinnitus or a hearing loss disability manifested in service or, for tinnitus and sensorineural hearing loss, within one year of separation. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a right ear hearing loss disability and tinnitus and these claims are denied. REASONS FOR REMAND 3. Chronic right groin abductor ligament strain Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). Both the Veteran’s VA treating doctor (Dr. C.) and a VA examiner provided opinions noting that the chronic right groin abductor ligament strain was aggravated by the service-connected bone cyst. In providing the August 2018 VA opinion on the issue of direct service connection (and not on aggravation), the VA opinion reads: it was felt by Dr. C. that the strain was aggravated by the bone cyst. Aneurysmal bone cyst’s average duration of symptoms until diagnosis is six months, so it is unlikely that the cyst had been causing him groin strain for 28 years. It is more likely that once the cyst became symptomatic in 2012, it began aggravating groin strain. The Veteran is service connected for right hip/pubic bone cyst as of an August 2020 rating decision. The regulation regarding aggravation contains specific instructions, namely the establishment of such a baseline is required for a grant of service connection under 38 C.F.R. § 3.310(b). This is required here, and a remand is necessary to obtain an opinion compliant with the regulation. The matters are REMANDED for the following action: Obtain a medical opinion as to the chronic right groin abductor ligament strain (or other alike disorder identified). If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The medical professional is asked to provide an opinion regarding whether it is as at least as likely as not (50 percent probability or more) that any current disability –was aggravated by a service-connected disability (specifically to include right hip/pubic bone cyst). Aggravation means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, a baseline must be provided. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.