Citation Nr: 21023616 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-05 687 DATE: April 21, 2021 ORDER Entitlement to service connection for right sciatic nerve condition is denied. Entitlement to service connection for left sciatic nerve condition is denied. Entitlement to service connection for bilateral hearing is denied. REMANDED Entitlement to service connection for right hip condition is remanded. Entitlement to service connection for left hip condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral sciatic nerve condition at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral sciatic nerve condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 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; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing is in the Veteran’s file. These matters were previously before the Board in March 2020, at which time it was remanded for further development. Unfortunately, further remand is warranted concerning the hip claims, but the record is adequately developed with respect to the sciatic nerve disability and hearing loss claims. 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; 38 C.F.R. § 3.303 (a). 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). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including other organic diseases of the nervous system, which includes sensorineural hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Furthermore, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a bilateral sciatic nerve condition The Veteran contends that he developed a bilateral sciatic nerve condition from lifting guns in service. 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 or disease. The Board concludes that the Veteran does not have a current diagnosis of a bilateral sciatic nerve 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). A February 2021 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of pain and numbness in his back, he did not have a diagnosis of a peripheral nerve condition. Further, despite treatment from his hip replacement surgery, VA treatment records do not contain a diagnosis of a sciatic nerve condition. Moreover, in a November 2019 examination, private practitioner P.H. stated that the Veteran went to a chiropractor for many years due to initially believing he had a pinched nerve, but later it was diagnosed as a hip condition that required total replacement due to impingement. There was no indication from the examination to confirm the presence of any sciatic nerve condition. While the Veteran believes he has a current diagnosis of a bilateral sciatic nerve condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. 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. As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not applicable, and the Board must deny the claim for a bilateral sciatic nerve condition. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing The Veteran contends that he suffers from bilateral hearing loss that is the result of noise exposure during military service. 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. Service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of hearing loss. A review of the Veteran’s STRs show that the reported hearing thresholds at the November 1967 separation audiogram were within normal limits bilaterally. VA treatment records from January 2016 show the Veteran complained of having a hard time hearing. He reported a history of being exposed to loud sounds in the military from rifles, but also from post-service life from working around airplanes. At a March 2016 Hearing Loss VA examination, the examiner stated that there was significant history of post military occupational noise exposure, including working as a mechanic for over 30 years, as well as from recreational use of power tools and equipment without hearing protection. The examiner also observed the Veteran’s hearing was normal during service, with no reports of hearing loss. The examiner opined that the Veteran’s post-military occupational and recreational activities, which involved noise exposure, are the likely source of his hearing loss, as well as other sources, such as medical conditions, medications, genetics, lifestyle factors such as smoking or alcohol abuse, and aging of the auditory system in general. The examiner based his opinion on audiology principles, the multi-faceted origins of hearing loss, medical history, a review of the record and from the current physical examination. The examiner concluded that it is less likely as not that the Veteran’s bilateral hearing loss is related to military. The Veteran contends that there were long term issues caused by service. He also contends that post-service, he used OSHA standard hearing protection. The Board notes however, the Veteran reported loud post-service noise exposure at his audiology consult in January 2016, but did not mention wearing hearing protection. Moreover, the Veteran also reported significant recreational noise exposure post-service. At the Board hearing, the Veteran’s representative contended a private examiner found a positive nexus between his hearing loss and noise exposure in service. Pursuant to the Board remand, on April 2020, the RO provided the Veteran with VA Form 21-4142 along with a letter to send in any private treatment records not already sent to VA, however, the Veteran did not respond to the request. The Board also considers presumptive service connection. The Veteran testified that his hearing loss began shortly service. The Veteran’s VA medical records establish that he was a new patient in November 2015 and noted that there was a history of hearing loss, however, there is no medical evidence that suggests the Veteran had hearing loss within one year of separation. In fact, records show he was not a previous user of amplification and hearing aids were ordered in January 2016. Additionally, the Veteran’s hearing was normal at his separation examination. Accordingly, presumptive service connection is not warranted as there is no probative evidence his bilateral hearing loss began within one year of separation from service. To the extent that the Veteran may believe his hearing loss is related to his active service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. 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). In this case, the probative evidence of record indicates that the Veteran’s hearing loss was not present until many years after service, and the most probative evidence of record fails to link the current disability to service. Accordingly, the claim for service connection for bilateral hearing loss is denied. REASON FOR REMAND Entitlement to service connection for bilateral hip condition is remanded. The Veteran contends his bilateral hip condition began in service from carrying heavy loads. He alleges there were long term effects due to service. See Form 9. The Veteran was afforded a VA examination in February 2021, however, the examiner's supporting rationale for the negative nexus opinion appears to rely solely on the absence of contemporaneous medical evidence in the Veteran's service treatment records. Therefore, a remand to obtain another medical opinion, with adequate rationale and which addresses the Veteran's reports of hip complaints since service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hip disability is at least as likely as not related to an in-service disease or injury. For the limited purpose of conducting the examination and providing the medical opinion it may be assumed the Veteran’s reports of hip discomfort in service, and during the interval between service and the early 2000s are credible. A clear and complete rationale should be provided for any opinions expressed, and if the absence of a record of treatment in service is considered significant in formulating the opinion, the reasons for that should be explained. 2. Readjudicate the appeal. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.