Citation Nr: 1754474	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-04 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to a compensable rating for residual fracture of the fifth metacarpal bone of the right hand (right little finger disability).

3.  Entitlement to an evaluation in excess of 30 percent for anxiety disorder.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel




INTRODUCTION

The Veteran served on active duty from January 1976 to January 1979.

These matters come before the Board of Veterans' Appeals (Board) from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

A Supplemental Statement of the Case (SSOC), issued by the RO in February 2017, continued to deny service connection for tinnitus and a compensable rating for right little finger disability.

The issue of entitlement to a rating in excess of 30 percent for anxiety disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident in service, was not continuous since service, and was not shown to a compensable degree within one year of service.

2. The Veteran's right little finger disability is manifested by fatigability in the fingers of the Veteran's right hand and pain on movement and tenderness in the right little finger.




CONCLUSIONS OF LAW

1. Tinnitus was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

2. The criteria for a compensable rating for a right little finger disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service Connection - Tinnitus

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (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. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

The Veteran's claimed condition is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b).

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, 1137; 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.

The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (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 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

The Veteran's private treatment records indicate he first reported hearing ringing in his ears in December 2009. As noted by the June 2014 VA examiner, tinnitus is a subjective disability that cannot be objectively verified. The Board finds the Veteran's lay statements that he currently experiences ringing in his ears on a regular basis to be competent and credible evidence of a current disability, meeting the first element of service connection.

The Veteran's entrance examination and report of medical history in January 1976 audiological testing indicated that the Veteran did not have hearing loss, and the Veteran did not indicate that he heard ringing in his ears at that time. Audiological testing conducted at a February 1979 exit examination continued to show that the Veteran did not have hearing loss, and the Veteran did not report any ringing in his ears at that time. Additionally, the Veteran's service treatment records (STRs) indicate that at a medical examination in February 1983, four years after his discharge from active duty service, audiological testing did not indicate hearing loss, and the Veteran did not report any ringing in his ears.

The preponderance of the evidence indicates that the Veteran did not begin reporting that he had experienced ringing in his ears since service until his July 2012 VA examination, 22 years after discharge from active duty service. At this examination, the VA examiner opined, after conceding noise exposure in service, that the Veteran's tinnitus was more likely than not associated with hearing loss. Rather, the July 2012 VA examiner opined that as the Veteran's hearing loss was not service-connected, the Veteran's tinnitus was less likely than not related to service.

The Veteran underwent another VA examination in January 2014. The VA examiner opined that despite exposure to loud aircraft engine noise in service, the Veteran's tinnitus was less likely than not related to service. The examiner based this opinion on the Veteran's STRs, which did not indicate any complaints or diagnosis of tinnitus during service. Additionally, the examiner opined that tinnitus is most often a symptom of hearing loss, and the Veteran's STRs did not indicate any hearing loss or major threshold shifts in the Veteran's hearing during service.  Finally, the examiner noted that the Veteran likely had a great deal of post-service noise exposure through his work doing steel and iron erection for the Union.

The Board finds the Veteran's statements at his exit examination, which did not indicate any reports of tinnitus or ringing in the ears, are more probative than his statements since March 2012, in which he reports that he has been experiencing ringing in his ears since discharge from service. As a result, the more probative evidence does not support a finding that the Veteran began experiencing tinnitus during or within one year of discharge from service, and service connection is not established on a presumptive basis. 

Additionally, after a thorough review of the record-particularly the opinion of the January 2014 VA examiner, which the Board finds most probative-the Board finds the preponderance of the evidence is against a nexus between the Veteran's current disability and in-service noise exposure. Therefore, service connection must also be denied on a direct basis. 

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied.

III. Increased Rating - Right Little Finger Fracture

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The Board finds that Diagnostic Code 5230, governing limitation of motion of the ring or little finger, most accurately reflects the Veteran's right little finger disability. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Service connection and a noncompensable rating have been granted for only the right little finger; thus, the rating criteria for multiple digits are not applicable. As the Veteran is already in receipt of the maximum schedular rating under Diagnostic Code 5230, an increased rating in excess of the current noncompensable rating is not warranted.

Similarly, the Board has considered Diagnostic Code 5227, for ankylosis of individual digits. 38 C.F.R. § 4.71a, Diagnostic Code 5227.  However, Diagnostic Code 5227 also does not provide for a compensable rating for the little finger, nor did the July 2012 VA examiner find the Veteran's right little finger was ankylosed.

The Board notes the July 2012 VA examiner found no deformity or limitation of motion in the right little finger. Thus, under Diagnostic Code 5156 there was no indication of total loss of use of the finger such that the Veteran would be equally served by amputation. 38 C.F.R. § 4.71a, Diagnostic Code 5156.

Additionally, there is no x-ray evidence substantiating an arthritis diagnosis in the service-connected right little finger, as noted by the July 2012 VA examiner, so Diagnostic Codes 5003 and 5010 for arthritis are not appropriate. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. 

Finally, the Board has considered a rating decision based on painful motion under 38 C.F.R. § 4.59. Generally, when painful motion is present, the minimum compensable rating for the joint should be assigned. However, in this case, there is no level of disability that warrants a compensable rating under Diagnostic Code 5230. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). Therefore, a compensable rating for painful motion cannot be assigned in this case. See id.; 38 C.F.R. § 4.59.

In conclusion, the Board finds that a compensable rating is not warranted for the right little finger disability. The preponderance of the evidence is against the claim, there is no doubt to be resolved, and an increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49.


ORDER

Entitlement to service connection for tinnitus is denied.

Entitlement to a compensable rating for a right little finger disability is denied.


REMAND

A September 2014 rating decision continued the 30 percent rating for anxiety disorder. In October 2014, the Veteran submitted a timely notice of disagreement with the evaluation for this disability, thereby placing the issue in appellate status.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). As of the present time, a statement of the case (SOC) has not yet been issued, and a remand is required for the issuance of an SOC. See Manlincon, 12 Vet. App. at 240-41

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case for the issue of entitlement to an evaluation in excess of 30 percent for anxiety disorder.  The issuance should include notice of the need to file a substantive appeal to the Board to perfect this claim.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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. §§ 5109B, 7112 (2012).




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs