Citation Nr: 1304669	
Decision Date: 02/08/13    Archive Date: 02/19/13	

DOCKET NO.  10-22 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for chronic tinnitus.

3.  Entitlement to service connection for a disorder characterized by tingling and numbness in the left hand, claimed as secondary to the service-connected residuals of fracture of the right humerus.  

4.  Entitlement to an initial evaluation in excess of 10 percent for the orthopedic residuals of fracture of the right (major) humerus.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

Stephen F. Sylvester, Counsel


INTRODUCTION

The Veteran served on active duty from January 1979 to February 1988.

This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2009 and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

At the time of the aforementioned rating decision in September 2012, the RO granted service connection for right radial neuropathy.  A separate rating was assigned, and there has been no disagreement with that action.  Accordingly, that issue, which was formerly on appeal, is no longer before the Board.  The increased rating at issue is for the orthopedic residuals of the fracture.


FINDINGS OF FACT

1.  Hearing loss disability, as defined by VA regulation, is not shown to have been present in service, or at any time thereafter.  

2.  Chronic tinnitus is not shown to have been present in service, or, to the extent it currently exists, many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service.  

3.  A chronic disorder characterized by tingling and numbness in the left hand is not shown to have been present in service, or any time thereafter and is not shown to be related to a service connected disability.  

4.  The Veteran's service-connected orthopedic residuals of fracture of the right (major) humerus are presently characterized by some limitation of motion accompanied by pain, but no evidence of limitation of arm movement at shoulder level, or infrequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint and guarding of movement at shoulder level, or malunion of the humerus with moderate deformity.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active military service, nor may sensorineural hearing loss, to the extent it currently exists, be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2011).

2.  Chronic tinnitus was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002); 38 C.F.R. § 3.303 (2011).  

3.  A chronic disorder characterized by tingling and numbness in the left hand was not incurred in or aggravated by active military service and is not proximately due to, the result of, or aggravated by a service connected disorder.  38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002); 38 C.F.R. §§  3.303, 3.310 (2011).

4.  The criteria for an initial evaluation in excess of 10 percent for the orthopedic residuals of fracture of the right (major) humerus have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.71a and Part 4, Diagnostic Codes 5201, 5202 (2011).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As service connection, an initial rating, and an effective dated have been assigned for the Veteran's service-connected residuals of fracture of the right humerus, the notice requirements of 38 U.S.C.A. § 5103(a) have been met.  Moreover, as to the other issues currently on appeal, there is no question as to whether the Veteran was provided an appropriate application form, or the completeness of his application.  VA notified the Veteran in February and May 2009 of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain.  

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording VA examinations.  Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order.  Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal.  

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as both VA (including Virtual VA) and private treatment records and examination reports.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  


Service Connection

The Veteran in this case seeks entitlement to service connection for bilateral hearing loss and tinnitus, as well as for a disorder characterized by tingling and numbness in his left hand.  In pertinent part, it is contended that the Veteran's current hearing loss and tinnitus are the result of acoustic trauma sustained in service.  Further contended is that the Veteran's current disability of the left hand is in some way causally related to his service-connected residuals of fracture of the right humerus.  

In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (2011).  

In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Service connection may be awarded for a "chronic" condition when:  (1) a chronic disease or disability manifests itself and is identified as such in service (or within the presumptive period under 38 C.F.R. § 3.307) and the Veteran currently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and the medical evidence relates that symptomatology to the Veteran's present disability.  See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997).  

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2011).  

Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from date of termination of 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.  This presumption of rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).  

For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores utilizing the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2011).

Finally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury.  The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a Veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected to the extent of the aggravation.  See Allen v. Brown, 7 Vet. App. 439, 446 (1995).  Effective October 10, 2006, an increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, is to be service connected.  In reaching a determination as to aggravation of a nonservice-connected disability, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by the service-connected condition) in comparison to the medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. Part 4) for evaluating that particular nonservice-connected disorder.  See 38 C.F.R. § 3.310 (2011).  

In the present case, at the time of a service entrance examination in January 1979, the Veteran denied any history of ear trouble or hearing loss.  Physical examination of the Veteran's ears conducted at that time was within normal limits.  Audiometric examination revealed pure tone air conduction threshold levels, in decibels, as follows:  

Hertz
500
1000
2000
3000
4000
6000
Right Ear
    0
      0
      0
    10
    15
    25
Left Ear
    5
      0
      0
      5
      5
    10

An automatic audiometric graph included with the Veteran's service entrance examination appeared to reflect the presence of some hearing loss at 6,000 Hertz in the Veteran's right ear.  No pertinent diagnosis was noted.  

In a service clinical record of August 1980, it was noted that the Veteran had been involved in an accident, and was experiencing some pain in his left hand.  A physical examination showed no evidence of any swelling or discoloration.  Moreover, range of motion of the Veteran's left hand was described as good.  On clinical followup, it was noted that the Veteran had been involved in an automobile accident three weeks earlier while on leave.  Reportedly, radiographic studies of the Veteran's left hand taken at the time were within normal limits.  No pertinent diagnosis was noted.  

A hearing conservation audiogram dated in February 1982 showed pure tone air conduction threshold levels, in decibels, as follows:  


Hertz
500
1000
2000
3000
4000
6000
Right Ear
    5
    10
    10
    15
    15
    55
Left Ear
    5
      5
      5
    10
    15
    15

A subsequent hearing conservation audiogram dated in September 1984 showed pure tone air conduction threshold levels, in decibels, as follows:  

Hertz
500
1000
2000
3000
4000
6000
Right Ear
  15
      5
    15
    15
    25
    50
Left Ear
  20
    15
    10
    15
    15
    20

At the time of a service separation examination in October 1987, a physical examination of the Veteran's ears and lower extremities was within normal limits.  Audiometric examination revealed pure tone air conduction threshold levels, in decibels, as follows:  

Hertz
500
1000
2000
3000
4000
6000
Right Ear
    0
      0
      5
      5
    15
    55
Left Ear
  10
      5
      0
      5
      0
    20

At the time of service separation, no pertinent diagnoses were noted.  

At the time of a VA audiometric examination in June 2009, it was noted that the Veteran's claims folder was available, and had been reviewed.  That review disclosed that the Veteran's hearing had been recorded as within normal limits at all frequencies from 500 to 6000 Hertz at enlistment in 1979.  Further noted was that a Rudmose audiogram completed at enlistment was included in the Veteran's claims folder.  According to the examining audiologist, the examiner at the time of service entrance interpreted the "threshold" at 6000 Hertz to be 25 decibels, which, in the opinion of the examiner, was an inaccurate interpretation of the tracing.  In the opinion of the examining audiologist, the Veteran quite possibly had a significant preexisting hearing loss at 6000 Hertz in the right ear at service entrance which persisted throughout military service.  Significantly, no report of tinnitus was found in the Veteran's service treatment records.  

When questioned, the Veteran reported the presence of tinnitus in quiet.  Also noted was a need to have certain people repeat themselves in order to understand the conversation taking place.  When further questioned, the Veteran indicated that his tinnitus was somewhat annoying, and that he had experienced difficulty in understanding conversational speech for the past eight years.

When questioned regarding his military, occupational, and recreational noise exposure, the Veteran gave a history of military noise exposure from the helicopters and jet engines.  Reportedly, following his discharge from military service, the Veteran continued working as an aircraft mechanic for seven years, following which he was self-employed in a shoe repair business utilizing "loud sanding machines."  Significantly, when questioned, the Veteran complained of tinnitus which reportedly began in service, and which was both "bilateral and recurrent."  

Audiometric examination revealed pure tone air conduction threshold levels, in decibels, as follows:  

Hertz
500
1000
2000
3000
4000
Right Ear
  10
    10
    10
    20
    25
Left Ear
  10
    10
    10
    15
    25

Speech recognition ability utilizing the Maryland CNC Word List was 100 percent for both the right and left ears.  According to the examiner, the Veteran's hearing was within normal limits at all test frequencies in the range from 500 to 4000 Hertz bilaterally.  Moreover, the Veteran demonstrated excellent word recognition ability bilaterally.  

In response to the question regarding the relationship between the Veteran's hearing loss and inservice noise exposure, the examiner indicated that he was providing no opinion, inasmuch as no hearing loss existed in either ear for the rating frequencies delineated by VA regulation.  Moreover, no report of tinnitus was found on the Veteran's service treatment records.  According to the examiner, and as noted above, based on a review of the Veteran's service treatment records, he quite possibly had a significant hearing loss at 6000 Hertz in his right ear at enlistment which was inaccurately reported/interpreted as a 25dB HL "threshold" at the time.  Without any documentation clearly denoting any report of tinnitus or any substantial hearing threshold shifts while on active duty, the examiner was unable to resolve the issue of service connection for the Veteran's tinnitus without resorting to speculation.

At the time of a subsequent VA peripheral nerve examination in February 2012, it was once again noted that the Veteran's claims folder was available, and had been reviewed.  When questioned, the Veteran denied the presence of constant or intermittent pain, as well as paresthesia/dysesthesia, and numbness in his left upper extremity.  Muscle strength was reported as within normal limits for elbow flexion and extension, wrist flexion and extension, and both grip and pinch in the Veteran's left upper extremity.  Deep tendon reflexes were likewise within normal limits for the left triceps and biceps.  Moreover, sensory examination was within normal limits for the inner/outer forearm, as well as the hand/fingers of the Veteran's left upper extremity.  The radial and medial nerves, as well as the ulnar nerve, the middle radicular group, and the lower radicular group were within normal limits on the left.  At the time of examination, no pertinent diagnosis regarding the Veteran's left hand was noted.  

Based on the aforementioned, it is clear that, to the extent the Veteran currently experiences hearing loss and/or tinnitus, those disabilities did not, in fact, have their origin during his period of active military service.  Nor is there persuasive evidence that either hearing loss or tinnitus is in any way related to the Veteran's period of active military service.  While based on the evidence of record, there may have been at least some hearing loss at 6000 Hertz in the Veteran's right ear both at service entrance and separation, at no time, either in service, or thereafter, has the Veteran exhibited "hearing loss disability" as defined by VA regulation.  Moreover, service treatment records are devoid of any evidence whatsoever of tinnitus.  In point of fact, the earliest clinical indication of the presence of tinnitus is revealed by the aforementioned VA audiometric examination in June 2009, many years following the Veteran's discharge from active military service.  Significantly, while at the time of that examination, the examiner indicated that he could not resolve the issue of service connection for the Veteran's tinnitus "without resorting to speculation," he further indicated that his rationale for that opinion was the lack of any documentation clearly denoting any inservice report of tinnitus, or substantial hearing threshold shifts while on active duty.

The Board finds the aforementioned opinion of a VA audiologist highly probative, because that opinion was based upon a review of the Veteran's entire claims folder, as well as a full examination, including both history and clinical findings.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file, and the thoroughness and detail of the opinion).  The VA audiologist reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided a well-reasoned medical opinion, and alluded to the evidence which supported that opinion.  See Hernandez-Toyens v. West, supra.  Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran suffers from either hearing loss or tinnitus related to his period of active military service.  His report of tinnitus since service is not considered credible in the absence of any threshold shift or other report or the pathology until 2009.

Regarding the Veteran's claimed "tingling/numbness" of the left hand, the Board acknowledges that, in August 1980, while in service, the Veteran received treatment for pain in his left hand, reportedly, following a motor vehicle accident.  However, radiographic studies of the Veteran's left hand conducted at that time showed no evidence of any fracture.  Moreover, subsequent service records show no evidence of any further treatment for the Veteran's left hand.  Significantly, at the time of the aforementioned service separation examination in October 1987, the Veteran's left upper extremity was entirely within normal limits, and no pertinent diagnosis was noted.  Moreover, as of the time of a subsequent VA peripheral nerve examination in February 2012, there was no evidence of any neurological pathology of the Veteran's left hand.  Rather, all clinical findings noted at the time were within normal limits.  

In evaluating the Veteran's claims, the Board has a duty to assess the credibility and weight to be given to the evidence of record.  See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  In that regard, the Veteran has attributed his hearing loss and tinnitus to inservice noise exposure, and his left hand "tingling/numbness" to his service-connected residuals of fracture of the right humerus.  However, not until 2008/2009, approximately 20 years following his discharge from service, did the Veteran file claims for service connection for any of those disabilities.  As noted above, there is no evidence that the Veteran currently suffers from a clinically-identifiable disorder of the left hand resulting in tingling and/or numbness.  Nor is there is evidence that the Veteran does, in fact, exhibit hearing loss disability in either ear.  To the extent the Veteran does suffer from tinnitus, there currently exists no evidence that such tinnitus is in any way the result of an incident or incidents of service, including inservice noise exposure.  Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weight against a claim for service connection.  See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  More importantly, for service connection to be established by continuity of symptomatology, there must be medical evidence which relates the current condition to that symptomatology.  See Savage, supra.  In this case, there is no medical evidence suggesting a link between the Veteran's tinnitus and his period of active military service.

The Board acknowledges the Veteran's contentions regarding the origin of the disabilities at issue.  However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate the disabilities in question to his period of active military service, or, in the case of his left hand disability, to the service-connected residuals of fracture of the right humerus.  The Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value.  Moreover, the Veteran, as a lay person, is not competent to create the requisite causal nexus for the disabilities in question.  Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Based on the aforementioned, the Board is unable to reasonably associate the Veteran's current hearing loss or tinnitus with any incident or incidents of his period of active military service, or, in the case of his claimed left hand disability, with the service-connected residuals of fracture of the right humerus.  Accordingly, his claims for service connection must be denied.  

Increased Rating

In addition to the above, the Veteran seeks an increased rating for the service-connected residuals of fracture of the right humerus.  In pertinent part, it is contended that current manifestations of that disability are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the 10 percent schedular evaluation now assigned.  

Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability.  They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011).  

Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2011).  

While the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus in such a case being upon the current severity of the service-connected disability.  See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for the disability in question.  Rather, at the time of the initial rating, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Id. at 126.  Accordingly, the analysis in this decision is undertaken with consideration of the possibility that different ratings may be awarded for different time periods.  See also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedular ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation & Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2011), an extraschedular evaluation commensurate with the earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2011).  

In the present case, in a rating decision of September 2009, the RO granted service connection (and a noncompensable evaluation) for the residuals of fracture of the right humerus, effective from December 29, 2008, the date of receipt of the Veteran's claim.  The Veteran voiced his disagreement with that determination, with the result that, in a subsequent rating decision of September 2012, the RO granted a 10 percent evaluation for the aforementioned residuals of fracture of the right humerus, once again effective from December 29, 2008, the date of receipt of claim.  The Veteran continued his disagreement with that assignment of benefits, and the current appeal ensued.  

Initially, the Board notes that service connection and a separate 20 percent evaluation are currently in effect for right radial neuropathy (previously claimed as radial nerve neuropraxia, with nerve damage and pain residuals from the shoulder to the fingers, and accompanying right arm condition).  

Significantly, at the time of a VA examination in August 2009, it was noted that, while in service, the Veteran was apparently assaulted, sustaining a spiral fracture of the distal third of the right humerus.  Reportedly, at that time, the Veteran was treated with a sling, and noted to have a drop wrist.  Somewhat later, the Veteran was provided with active assistance which was added to his sling, along with traction and weight.  When questioned, the Veteran denied any history of surgery to the area in question.  Similarly denied were any problems with osteomyelitis.  According to the Veteran, his current complaints consisted of pain which every now and then radiated upward into his right shoulder from his hand, and associated hand numbness.  When further questioned, the Veteran indicated that he was receiving numerous medications for pain, none of which appeared to help.  However, he had no problem with flareups.  According to the Veteran, he utilized no assistive device or brace for his left hand problems.  Nor were there any constitutional symptoms of bone disease.  

On physical examination, there was noted a slight deformity in the posterior triceps area of the right upper arm, reportedly the result of a suspected malunion of the humerus.  According to the examiner, the area in question was slightly tender.  However, there was no abnormal motion in the humerus.  

On subsequent VA examination in February 2012, the Veteran once again gave a history of a spiral fracture of the distal third of his right humerus from a scuffle.  Reportedly, a few months following that fracture, the Veteran suffered a right wrist drop for several months.  However, this partially resolved over the years.  According to the Veteran, his current problems consisted of increased pain over the distal third of the humerus, as well as some numbness and tingling, mainly on the dorsal side of his right hand.  

Range of motion measurements at the time of examination showed right shoulder flexion to 170 degrees, with pain beginning at 160 degrees.  Right shoulder abduction was likewise to 170 degrees, once again with pain beginning at 160 degrees.  At the time of examination, the Veteran was able to perform repetitive testing.  Following three repetitions, range of motion measurements showed right shoulder flexion to 165 degrees, with abduction to 165 degrees.  According to the examiner, there was less movement than normal on the right, as well as some evidence of excess fatigability and pain on movement, likewise on the right.  The Veteran showed evidence of localized tenderness or pain on palpation on the joint/soft tissue/biceps tendon of the right shoulder, though there was no evidence of any guarding of that shoulder.  Muscle strength testing showed normal muscle strength on abduction and forward flexion of the right shoulder, and there was no evidence of ankylosis of the glenohumeral articulation.  The Veteran denied any history of mechanical symptoms, and there was no evidence of any tenderness on palpation of the acromioclavicular joint.  However, there was some tenderness to palpation over the lateral right distal humeral region.  

Reportedly, radiographic studies of the right shoulder had been performed, which showed no evidence of any degenerative or traumatic arthritis.  According to the Veteran, as a result of his right shoulder condition, he could type or write for only 15 minutes before stopping to rest due to pain in the distal right humeral region.  

Pursuant to applicable law and regulation, in order to warrant an increased, which is to say, 20 percent evaluation, there must be demonstrated a limitation of arm motion to shoulder level, or, in the alternative, malunion of the humerus, with accompanying moderate deformity.  A 20 percent evaluation is, similarly, in order where there is evidence of recurrent dislocation of the humerus at the scapulohumeral joint, with intermittent episodes and guarding of movement only at shoulder level.  38 C.F.R. § 4.71a and Part 4, Diagnostic Codes 5201, 5202 (2011).  

Given the aforementioned evidence, it is clear that, at no time during the course of the current appeal was more than a 10 percent evaluation in order for the Veteran's service-connected residuals of fracture of the right humerus.  More specifically, at no time during the course of the current appeal has the Veteran exhibited a limitation of arm motion to shoulder level.  Nor has there been demonstrated any dislocation of the humerus at the scapulohumeral joint, with infrequent episodes and guarding of movement at shoulder level.  Significantly, while at the time of a VA examination in August 2009, there was present some deformity in the posterior triceps area of the Veteran's right upper arm, reportedly the result of a suspected malunion of the humerus, that deformity was described as no more than "slight."  In any case, at no time during the course of the current appeal has the Veteran exhibited a malunion of the humerus productive of "moderate" deformity.

Under the circumstances, the Board is of the opinion that no more than a 10 percent evaluation is warranted for the Veteran's service-connected residuals of fracture of the right humerus.  Moreover, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected residuals of right humeral fracture is appropriately contemplated by the Rating Schedule, and that referral for consideration of an extraschedular evaluation is, therefore, not in order.  See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for chronic tinnitus is denied.

Entitlement to service connection for a disorder characterized by tingling and numbness in the left hand is denied.

Entitlement to an initial evaluation in excess of 10 percent for the orthopedic residuals of fracture of the right humerus is denied.  


	                        ____________________________________________
	MICHAEL D. LYON
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs