Citation Nr: 18145237 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-10 809 DATE: October 26, 2018 ORDER Entitlement to a 10 percent rating for a middle finger disorder of the left hand is granted. Entitlement to service connection for bilateral hearing loss is denied, FINDINGS OF FACT 1. The Veteran’s long finger of the left hand demonstrates painful motion and limitation in flexion, resulting in functional loss. 2. Bilateral hearing loss did not first manifest in service or during the first post-service year, and is not otherwise shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for a left long finger disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 2. The criteria for service connection of bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to March 1970. Entitlement to a compensable rating for limitation of motion of the middle finger, left hand The Veteran was initially and incorrectly granted service connection for a disability of the index finger of the left hand. However, in a January 2016 rating decision, VA severed service connection for the index finger and instead granted service connection for left middle finger distal phalanx fracture with mild displacement, and assigned a noncompensable evaluation, effective April 20, 2013, the date of claim. The Veteran’s disability is rated under Diagnostic (DC) 5229, which contemplates limitation of motion of the affected digit. According to the rating criteria for Diagnostic Code 5229, a noncompensable rating is warranted for a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and with extension limited by no more than 30 degrees. A 10 percent disability rating is warranted for 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. Ten percent is the maximum schedular rating permitted under Diagnostic Code 5229. See 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Veteran was afforded a VA examination in November 2013. The examiner noted that the Veteran dislocated his left third finger during service. He has continued to experience pain and numbness. There were no flare-ups. Range of motion testing only referenced the left index finger. The examiner noted that an x-ray showed “mild degenerative changes involving the capitate otherwise grossly unremarkable exam. No acute fracture or dislocation is seen.” In an October 2015 VA examination report, the Veteran reported constant pain that had increased and sensory changes on the medial aspect of the finger. He stated that he experiences flare-ups when he squeezes a tool too firmly or for too long or when he helps push an object. His functional loss was described as an inability to grip certain tools for repair work and a worsening during exposure to cold, rainy weather. Range of motion testing showed the left long finer had maximum extension to 0 degrees and maximum flexion to 90 degrees of the MCP, 100 degrees of the PIP, and 60 degrees of the DIP. No gap was noted between the pad of the thumb and fingers but there was a 2 cm gap between the finger and proximal transverse crease of the hand on maximal finger flexion. Pain was noted on examination. The Veteran was able to perform repetitive use testing without additional limitations; however, after repetitive use over time, the Veteran was additionally limited to 5 degrees of maximum extension of the DIP and 55 degrees of maximum flexion of the DIP. During a flare-up, the Veteran was noted to have a maximum flexion of 50 degrees of the DIP. Muscle strength testing showed his left hand grip was 4 out of 5 with no atrophy. A a 10 percent rating is warranted based upon the Veteran’s limitation of motion of his left long finger. While the evidence does not indicate that the Veteran demonstrated limitation of motion of the long finger that resulted in a gap of one inch or more between the fingertip and the proximal transverse crease of the palm of the hand or extension limited to more than 30 degrees, the Board finds that the Veteran’s condition more nearly approximates the requirements for a 10 percent evaluation under Diagnostic Code 5229 based on demonstrated limited and painful of motion of the long finger and some functional impairment. Upon consideration of 38 C.F.R. § 4.59, the Board notes that the rating schedule contemplates painful, unstable, or misaligned joints, due to healed injury to warrant at least a minimum compensable evaluation. Accordingly, the Board finds that a 10 percent rating is warranted for the Veteran’s left long finger disorder. Higher and separate ratings are not warranted. A review of the rating schedule indicates that there are no other applicable codes that would permit for a disability rating in excess of 10 percent. Ankylosis of the fingers was not shown during this time, and therefore, DCs 5216 to 5223 are inapplicable. Further, neither amputation of the finger, nor functional limitation that would be equally well served by amputation has been demonstrated. Accordingly, the Board finds that a rating in excess of 10 percent for the Veteran’s left long finger disorder is denied. Entitlement to service connection for a bilateral hearing loss disability Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records include audiograms from entry and from separation. Two VA audiologists have reviewed these records and noted, at worst, no change in hearing over the course of service despite the likelihood of excessive noise exposure as an infantryman. There is even indication of improvement of hearing acuity at separation at 4000 Hertz; hearing loss was present at entry but not at separation. Both proffered negative nexus opinions based on the lack of change over service. While the Veteran’s private doctor stated that currently diagnosed hearing loss likely was related to service, he offers an inadequate rationale; he did not review service records and relied on the Veteran’s statements regarding when loss began. Further, there is no evidence of compensable hearing loss for many years after service. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for bilateral hearing loss is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Siesser