Citation Nr: 23038167 Decision Date: 07/11/23 Archive Date: 07/11/23 DOCKET NO. 19-28 715 DATE: July 11, 2023 ORDER Entitlement to service connection for arthritis of the left upper thigh, to include as secondary to service-connected scar of the left upper thigh is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has had a left upper thigh condition at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for arthritis of the left upper thigh, to include as secondary to service-connected scar of the left upper thigh have not been 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 served on active duty from August 1978 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in July 2022. A transcript of the hearing is associated with the electronic claims file. In September 2022, the Board remanded the issues for further development. 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. If the positive and negative evidence is in approximate balance, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 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 arthritis of the left upper thigh, to include as secondary to service-connected scar of the left upper thigh The Veteran contends that he has arthritis of the left upper thigh due to a practice mine exploding and injuring him with shrapnel. The Board concludes that the Veteran does not have a current disability manifested by left upper thigh arthritis 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). Significantly, the Veteran has not provided any information regarding any alleged functional impairment resulting from left thigh pain. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit 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." Id. at 1367-69. The Veteran was afforded a VA examination in April 2016. The examiner noted the Veteran had no objective evidence of arthritis in the bilateral hips. Upon examination in November 2022, there was no diagnosis of the left thigh. The Veteran stated he has no pain in the left hip or upper thigh. The Veteran had full range of motion of his left leg. The record does not reflect the Veteran experiences any characteristic symptoms in his left thigh and therefore, the medical evidence does not establish a distinct clinical diagnosis of a left thigh condition. The evidence therefore supports a finding that there is no diagnosis of a left thigh disability. The Board has considered the guidance of Saunders 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." Id. at 1367-69. The Veteran, however, has not described any characteristic symptoms, or pain, related to his left thigh. Thus, the competent medical evidence which found no evidence of a left thigh condition is afforded significant weight by the Board in this case. Both VA and private treatment records do not contain a diagnosis of a left thigh condition. While the Veteran believes he has a current diagnosis of a left thigh 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. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for a left thigh condition is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran contends his bilateral hearing loss and tinnitus are due to noise exposure as an infantryman during active service. In the September 2022 Board remand, the Board requested the AOJ obtain a VA examination for hearing loss and tinnitus. The Veteran was afforded a VA examination in November 2022. The examiner was unable to obtain audiometric results because testing was discontinued due to cerumen impaction potentially affecting the testing results. The examiner also stated the inability to provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation. The examiner noted that testing was not completed due to the Veteran's impacted cerumen. Another examination was conducted in January 2023. Audiometric testing could not be completed due to cerumen impaction. A January 2023 VA treatment note reflects the Veteran received a cerumen check and an ear irrigation several days after the January 2023 VA examination. The Board finds that the issues be remanded to afford the Veteran another opportunity to obtain audiometric testing. However, the duty to assist is not a one-way street. Wood v. Derwinski, 1 Board. App. 190 (1991). The Veteran should obtain a cerumen check and ensure his ears are clear before attending a VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a bilateral hearing loss and tinnitus condition. The entire file must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to an in-service injury, event, or disease, to include hazardous noise exposure. In so doing the examiner must consider and address the testimony provided at the July 2022 Board hearing. See transcript. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 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.