Citation Nr: 1123472 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 10-01 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a compensable evaluation for service-connected disability of dislocation, fracture of the fourth finger (ring finger) of the right hand with instability and degenerative joint disease. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In February 2010, the Veteran failed to appear for a scheduled RO hearing. The Veteran has not asked that the hearing be rescheduled. The hearing request is deemed withdrawn. In March 2010, the Veteran, through his representative, submitted additional evidence relevant to the right finger disability to the RO, which was forwarded to the Board in April 2010. 38 C.F.R. § 19.37 (2010). There is no waiver of the Veteran's right to an initial review of this evidence by the RO. The issue of entitlement to a compensable evaluation for service-connected right ring finger disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Right ear hearing loss for VA purposes is not shown. 2. Left ear hearing loss for VA purposes is shown many years after the Veteran's discharge from service, and it is not otherwise etiologically related to in-service noise exposure. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In a March 2009 VCAA letter, issued prior to the decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. The VCAA letter advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file includes service treatment records and private treatment records. In addition, the Veteran was afforded a VA examination in May 2009. The Board finds that the VA examination is adequate because the examiner was "informed of the relevant facts" from information contained in the service treatment records and obtained from the Veteran, and he supported his medical conclusion with data and a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process in submitting evidence. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). In order to establish service connection for a claimed disorder, the following must be shown: (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). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2010). 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) (2010). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss (organic disease of the nervous system) becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2010). Analysis The Veteran contends that he has bilateral hearing loss due to noise exposure as the result of his military service as a Seabee and heavy equipment operator and training on an 81mm mortar. The DD Form 214 shows the Veteran's military occupational specialty (MOS) was "DG-9770 (ED)" and the related civilian job was noted as "excavating occup[ation]." He also had one month of construction training in service. The Board finds that exposure to loud noise is consistent with the duties and circumstances of the Veteran's MOS and training. See 38 U.S.C.A. § 1154(a) (West 2002) (providing that in each case where a veteran is seeking service-connection for any disability due consideration must be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence). Accordingly, in-service noise exposure is established. As for whether the Veteran's in-service noise exposure has caused a chronic bilateral hearing disability, the Board observes that service treatment records show hearing loss was within normal limits in both ears for VA purposes on enlistment examination in February 1974. The only complaint during service referable to the ears was pain and problems clearing the left ear associated with scuba diving in May 1975 and August 1975. Congested eustachian tube of the left ear was diagnosed. At the separation examination in September 1975, the Veteran demonstrated 15/15 hearing acuity bilaterally on whispered voice testing. Immediately after service, the Veteran underwent a VA examination in November 1975 in connection with an unrelated claim. A review of systems indicated that the Veteran's ear canals were dry and drums intact. The Veteran's hearing was not evaluated. Thereafter, the Board finds that a March 2009 report on numerical results of an audiogram from Oneida Community Health Center showed the Veteran did not demonstrate section 3.385 hearing loss in the right ear with respect to the reported auditory thresholds. See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, at *3 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). As for the administered speech audiometry, it is unclear if the Maryland CNC Test was utilized. When VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). The Court's holding is limited to those instances in which the missing information is relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report. Id. at 270. Here, the Board finds it unnecessary to request clarification from the private provider as unlike in Savage, there is other evidence (the May 2009 VA audiology examination report) contemporaneous to the private audiogram that sufficiently describes the nature of the claimed bilateral hearing disability. As for the left ear, the Veteran demonstrated section 3.385 hearing loss at 4000 Hertz. The May 2009 VA audiology examination report shows the Veteran only demonstrated section 3.385 hearing loss in the left ear, diagnosed as slight asymmetric high frequency hearing loss. Also, the Veteran's ear canals were clear and tympanic membranes visible bilaterally. The VA examiner discussed relevant entries from the Veteran's service treatment records including the reported on left ear problems in 1975. The examiner indicated that the Veteran reported no definite date of onset of the hearing loss but it had been present for a "long time." The Veteran reported a positive history of noise exposure in service from "weapons and explosions" and some civilian noise exposure. The examiner explained that hearing loss due to acoustic trauma or high noise exposure occurred at the time of the incident and was not delayed in onset. The examiner therefore noted that with no complaints at the discharge examination, all factual evidence would indicate the hearing loss occurred after service. The Board notes that the mere fact of in-service noise exposure is not sufficient to establish service connection; there must be a chronic disability resulting from the noise exposure. In regard to the right ear, the Veteran does not have a hearing impairment for VA purposes. Entitlement to service-connected benefits is specifically limited to cases where there is a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As no current disability for which compensation benefits may be awarded is shown, service connection for right ear hearing loss is not warranted. In regard to the left ear, which is productive of hearing impairment for VA purposes, the Veteran does not contend that he perceived hearing loss in service and ever since service. As such, the theory of continuity of symptomatology is not for consideration. Hearing loss in the left ear is not clinically shown until many years after the Veteran's discharge from service. The Veteran also continued to work "for many years" as a heavy equipment operator after service. See May 2009 VA joints examination report. The only competent evidence of record that addresses whether the Veteran's left ear hearing loss is otherwise etiologically related to in-service noise exposure is unfavorable. The VA examiner found no causal relationship and his medical opinion is supported by data and a rationale. As suggested, to the extent the Veteran's statements may be construed as nexus evidence (other than evidence relating to a continuity of symptomatology theory of entitlement), he is not competent to opine that his hearing loss is etiologically related to in-service noise exposure. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The existence of such relationship involves a medically complex question that the Veteran does not have the expertise to answer. For all of the above reasons, service connection for left ear hearing loss is also not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral hearing loss is denied. REMAND After a review, the Board finds that further development is required prior to adjudicating the Veteran's increased rating claim. While any limitation of motion of the ring finger warrants a noncompensable evaluation under Diagnostic Code 5230, the Board must also consider the principles set forth in 38 C.F.R. §§ 4.40, 4.45, 4.59 and whether an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is for consideration. Service treatment records show the Veteran sustained a dislocation of the right ring finger in April 1975. The service examiner indicated that there was no evidence of a fracture. A November 1975 VA examination diagnosed dislocation of the proximal and metacarpal phalangeal joints of the ring finger of the right hand. X-rays revealed no evidence of a fracture. In a December 1975 rating decision, service connection was established for "dislocation of proximal and metacarpal phalangeal joint, ring finger of right hand" and a noncompensable evaluation was assigned. A July 1985 VA examination described the Veteran's right ring finger as asymptomatic. X-rays revealed no evidence of fracture or degenerative joint disease. The appealed June 2009 rating decision shows the RO re-characterized the disability as "dislocation, fracture of the fourth finger right hand with instability and degenerative joint disease" absent any discussion on the basis for including "fracture" and "degenerative joint disease" as part of the service-connected dislocation of the right ring finger. The Board acknowledges that at the time of the rating decision, February 2009 x-ray reports revealed findings consistent with an "old fracture, healed and secondary, relatively mild osteoarthritic changes at the joint." The VA examiner indicated that the Veteran reported no trauma to the right ring finger since the in-service injury, but the examiner did not specifically opine that the fracture and secondary degenerative changes were related to the original service connected disability. Also, the February 2009 Oneida Community Health Center radiology report notation of "[o]ld fracture of the right hand in 1975" was based on an inaccurate factual predicate. (The Veteran reported a history of suffering "a broken right fourth finger in 1975" during service.) Evidence associated with the claims file after the June 2009 rating decision includes a June 2009 medical report from Dr. J.C. who indicated that the Veteran reported an onset of locking of the right ring finger over 10 years ago, which the Veteran believed might be related to the in-service finger injury. Dr. J.C. diagnosed stenosing tenosynovitis ["trigger finger" manifested by pain and locking, see The MERCK Manual (Noninfectious Tenosynovitis, Online Ed.)] of the right ring finger that bore no relation to the in-service dislocation of the finger. In another June 2009 medical report, Dr. J.C. diagnosed traumatic arthritis of the right ring finger proximal interphalangeal joint "due to an old injury." In a December 2009 medical report, Dr. B.L. diagnosed chronic pain of the right ring finger due to posttraumatic degenerative arthritis. Dr. B.L. then noted that if the Veteran dislocated or fractured his proximal interphalangeal joint in service, there was no doubt that the clicking and arthritic changes with resulting pain were due to the original injury. The Veteran contends that his right ring finger disability is manifested by pain, locking, clicking, swelling, and flare-ups. The Board finds that the nature of the service-connected right ring finger disability and current resulting functional impairment is unclear given the current presence of a healed fracture and degenerative changes that were not identified on past x-rays in 1975 and 1985. Whereas the VA examiner indicates that the degenerative arthritis is secondary to a fracture, Dr. B.L. appears to indicate that the arthritic changes could be due to either a history of fracture or dislocation. Again, the VA examiner also did not specifically relate the fracture to the Veteran's original injury. Whereas Dr. J.C. appears to acknowledge that the Veteran has locking of the finger but not related to the original injury, Dr. B.L. appears to indicate that the Veteran does not have true "locking" but there is a discernable clicking which is related to the original injury. It, however, is notable that Dr. B.L. also detected a clicking in the adjacent middle and small fingers. For the foregoing reasons, the Board finds that before it can properly evaluate the Veteran's right ring finger disability, the extent of the disability must be comprehensively described and manifestations properly attributed to the underlying condition/disease process present on a VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right ring finger disability. The Veteran's claims file should be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should comprehensively describe the nature of the right ring finger disability and attribute manifestations of the disability (e.g., pain, locking, clicking, swelling, flare-ups, etc.) to the underlying condition/disease process (e.g., dislocation, fracture, arthritis, etc.). The examiner should specifically indicate whether the fracture and arthritis are related to the in-service dislocation of the right ring finger. The examiner is requested to conduct range of motion testing of the right ring finger in terms of the degrees lost and the degree at which pain, if any, begins. Range of motion should also be described by a statement as to the size of the gap, in centimeters or inches, between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible. The examiner should indicate whether the right ring finger disability is manifested by ankylosis, and if so, whether such is favorable or unfavorable and does it result in limitation of motion of other digits or interferes with the overall function of the hand. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to such symptoms in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and to the extent possible, provide an assessment of the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. 2. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs