Citation Nr: 18142349 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-28 755 DATE: October 15, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial rating of 10 percent, but no greater, for right middle finger crushing injury is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a right index finger injury, to include as secondary to right middle finger crushing injury, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus began during active service. 2. The Veteran’s right middle finger crushing injury is characterized by painful motion. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for a disability rating of 10 percent, but no greater, for right middle finger crushing injury have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from August 1960 to February 1961, with additional service in the Coast Guard Reserves. In January 2018, the Veteran testified at a video hearing before the undersigned. A transcript of that hearing is of record. Service Connection 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 military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for tinnitus In his January 2018 Board hearing, the Veteran indicated that while in service his ears began to ring, that he still experiences ringing in the ears, and that this ringing has become worse. The Veteran is competent to diagnose tinnitus and its onset on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). He argues that this disorder is the result of exposure to loud noises while working on diesel engines in the Coast Guard, including a diesel engine explosion. Tinnitus is one of the chronic diseases under 38 C.F.R. § 3.307(a) for which service connection is available based on continuity of symptomatology. Therefore, based on the Veteran’s competent, credible evidence of in-service noise exposure, reported in-service tinnitus, and continuity of symptomatology, service connection for a tinnitus is warranted under 38 C.F.R. § 3.303(b). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to an initial compensable rating for right middle finger crushing injury On January 13, 2014, the Veteran filed a claim of entitlement to service connection for a right middle finger injury. In May 2015, the RO granted service connection for this disorder at an initial noncompensable rating under Diagnostic Code 5229 from the date of the claim. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Diagnostic Code 5229 provides compensation for limitation of motion for the index or long finger. 38 C.F.R. § 4.71a. A 0 percent rating is provided for both hands where there is a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger limited to the extent possible, and extension is limited by no more than 30 degrees. Id. A 10 percent rating is provided for both hands where there is a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible or with extension limited by more than 30 degrees. Id. For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The May 2015 VA finger examination indicates that there is pain with use of the hand, including finger extension and flexion, but no limitation of extension for any joints of the right middle finger. Also according to that examination, there is no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The Veteran does not report flare-ups of his hand, fingers, or thumb. During his January 2018 hearing testimony, the Veteran states that he has a non-moving joint in his right middle finger with numbness at the fingertip. He does not discuss limitation of extension or gaps between his finger and proximal crease of the hand on maximal finger flexion. The presence of painful motion supports an initial rating of 10 percent under Burton. Since this is the highest schedular rating available for painful motion, a higher rating based on pain under DeLuca or Correia is not available. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. REASONS FOR REMAND 1. Entitlement to service connection for a right index finger injury, to include as secondary to right middle finger crushing injury, is remanded. In the January 2018 hearing transcript, the Veteran argues that his right index finger injury is secondary to his service-connected middle finger injury. Specifically, he argues that he cut off the tip of his right index finger during a 2004 woodworking accident because his service-connected middle finger injury prohibited him from holding a piece of wood properly. An addendum opinion is required that addresses this evidence. 2. Entitlement to service connection for bilateral hearing loss is remanded. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied with regard to the claim of entitlement to service connection for bilateral hearing loss. Regarding the first element, a January 2018 DBQ filled out by a private doctor states that the Veteran has bilateral hearing loss, although an audiogram is not included and there is no discussion of the basis for this diagnosis. Regarding the second element, the Veteran argues that he was exposed to loud noises and at least one explosion while working on diesel engines in the Coast Guard. Regarding the third and fourth elements, there is an indication that hearing loss could be related to exposure to engine noise during service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. Additionally, during his January 2018 hearing, the Veteran indicated that he was receiving medical treatment from a private doctor for his hearing problems. In January 2018, the Veteran submitted a Hearing Loss DBQ that was filled out by a private doctor who appears to have been treating the Veteran since at least January 2017. Following the receipt of any disclosures from the Veteran, the RO should attempt to obtain any private medical records from this private doctor, as well as any physicians identified by the Veteran. The matters are REMANDED for the following action: 1. Contact the Veteran, and request that he identify any outstanding records of pertinent medical treatment. The RO should then take appropriate measures to obtain copies of any outstanding records identified by the Veteran, including the private doctor who filled out the January 2018 Hearing Loss DBQ. The Veteran should be notified if any identified records are unavailable and given an opportunity to respond and submit any additional lay evidence or statements. The RO should also attempt to identify whether any speech recognition scores reported in private audiograms were obtained using the Maryland CNC test. All such requests and responses should be document in the claims file. 2. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: (a.) Whether the Veteran has any current or previously-diagnosed right index finger disorder; and (b.) Whether the Veteran has any current or previously-diagnosed right index finger disorder that (i) is proximately due to the Veteran’s service-connected right middle finger disorder or (ii) was aggravated by the Veteran’s service-connected right index finger disorder. In rendering these opinions, the examiner should consider the Veteran’s January 2018 hearing transcript testimony, specifically his argument that he cut off the tip of his right index finger during a 2004 woodworking accident because weakness associated with his service-connected middle finger injury prohibited him from holding a piece of wood properly. For purposes of these opinions, the examiner is to assume that the Veteran’s testimony about his woodworking accident is credible. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Whether to schedule the Veteran for an additional examination shall be left to the discretion of the examiner selected to write the addendum opinion. 3. After obtaining any additional records to the extent possible, schedule the Veteran for a VA audiological examination. If the Veteran does not wish to participate in an audiological examination, this should be noted in the claims file. Audiometric testing should be completed and any bilateral hearing loss disability under 38 C.F.R. § 3.385 should be noted. A Maryland CNC speech recognition test must be completed. Then, the examiner must provide the following medical opinions: (a.) Whether the Veteran has any current hearing loss disorder; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current hearing loss disorder was incurred in the Veteran’s service. In rendering these opinions, the examiner should consider the Veteran’s January 2018 hearing testimony about in-service exposure to diesel engine noise and explosions. For purposes of these opinions, the examiner is to assume that this testimony is credible. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel