Citation Nr: 18147837 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-19 653 DATE: November 6, 2018 ORDER Service connection for bilateral hearing loss is denied. A 10 percent rating, but no higher, for osteoarthritis of the index and long fingers, left hand, is granted. FINDINGS OF FACT 1. The Veteran’s hearing loss was not incurred in service and is not otherwise related to service. 2. The Veteran has arthritis in his left index and long fingers (minor joints), which results in painful, noncompensable limitation of motion, but not ankylosis, including during flare-ups or on repetitive use. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for a 10 percent rating, but no higher, for osteoarthritis of the index and long fingers, left hand, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.7. 4.71a, Diagnostic Codes 5003, 5219, 5223, 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to December 2003. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from May and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for Bilateral Hearing Loss The Veteran contends that he has a bilateral hearing loss disability that he attributes to exposure to acoustic trauma during service. The Veteran served as an infantryman. The Board concedes that the Veteran likely experienced noise exposure during his active duty service. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran meets the requirements of a current hearing loss disability for VA purposes based on his most recent Maryland CNC Test results. On the authorized VA audiological evaluation in May 2014, pure tone thresholds, in decibels, for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 15 10 10 5 LEFT 20 15 10 10 0 The Veteran’s speech recognition scores were 92 percent in both the right ear and the left ear. Hearing loss is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker, 708 F.3d at 1331. The Veteran’s service treatment records (STRs) do not reflect any complaints, treatments, or diagnosis of hearing loss. Additionally, an audiogram conducted in February 2003, less than one year prior to the Veteran’s December 2003 discharge from service, shows that a clinical evaluation of the ears was normal. The February 2003 audiogram indicates an audiological evaluation with pure tone thresholds, in decibels, for the Veteran’s ears were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 15 15 10 0 LEFT 25 5 15 0 -10 The Veteran’s May 2014 VA examination, conducted approximately 11 years after discharge from service, is the first diagnosis of bilateral hearing loss. As a result, service connection for bilateral hearing loss cannot be presumed as there is no competent evidence of sensorineural hearing loss within one year following service discharge. There is also no evidence of continuity of symptomatology. Although the Veteran reported exposure to loud noises during service, the STRs do not indicate any complaints of hearing loss in service, and at his last audiogram prior to separation, the Veteran’s hearing was assessed as normal. As noted above, the Veteran’s treatment records do not indicate a diagnosis of hearing loss until May 2014, approximately 11 years after discharge from service. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be granted on another basis. As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. The Board finds the preponderance of the evidence is against a nexus between the in-service acoustic trauma and the Veteran’s current bilateral hearing loss disability. The Veteran was afforded a VA examination in May 2014 to determine the nature and etiology of his hearing loss. At this VA examination, the examiner opined that the Veteran’s hearing was normal. The examiner also opined that the Veteran’s current hearing loss was not related to active duty service as the progression of the Veteran’s hearing loss was more consistent with age given that the Veteran, despite not being provided a separation examination, did not have hearing loss 10 months prior to discharge from service. Absent competent and credible evidence of a nexus between the in-service acoustic trauma and the Veteran’s current bilateral hearing loss disability, service connection cannot be granted. In reaching this 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. 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 for service connection for bilateral hearing loss disability is denied. Rating for Finger Disabilities 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran has been provided a noncompensable rating based on a diagnosis of osteoarthritis in both the left index finger and the left long finger. The RO denied a compensable rating as the Veteran’s VA examination did not indicate limitation of motion in either his left index finger or his left long finger. Degenerative and/or traumatic arthritis, as shown by X-ray studies, are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id., Diagnostic Codes 5003, 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. Id. The above ratings are to be combined, not added under Diagnostic Code 5003. Id., note 1. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. At the Veteran’s May 2014 VA examination (and the associated July 2014 addendum opinion), the VA examiner diagnosed the Veteran with osteoarthritis of the left hand. At that time, the Veteran reported that he felt a dull ache that radiated into his wrist. He experienced feelings of tightness and occasional inability to grasp objects. Upon testing, the Veteran had no limitation of motion, including after repetitive use testing, in the left index finger or the left long finger. Additionally, the examiner noted that the Veteran did not exhibit painful motion, muscle spasms, or swelling in either finger. The Board finds that a 10 percent rating is warranted based upon the Veteran’s limitation of motion of his index finger and the long finger. While the evidence does not indicate that the Veteran demonstrated limitation of motion of the index finger or 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 condition more nearly approximates the requirements for a 10 percent evaluation under DC 5229. 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 hand strain. The Board finds that the Veteran’s reports of difficulty griping objects similarly equates to limitation of motion of the index and long. Accordingly, a 10 percent rating is warranted. The Board finds, however, that higher and separate ratings are not warranted for the Veteran’s left index and long finger disability. 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 either of these fingers, 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 index and long finger is denied. To the extent that the Veteran would argue that separate 10 percent evaluations would be warranted based upon the documented limitation of both the index and long fingers, the Board notes that while DC 5229 provides for a 10 percent evaluation for limitation of either the index or long finger that the rating schedule has specifically grouped these fingers together under one evaluation. In a related section of 38 C.F.R. § 4.71a, separate diagnostic codes are provided for ankylosis of the index finger (DC 5225) and ankylosis of the long finger (DC 5226). If separate evaluations were intended for these conditions, it would appear that rating schedule would provide separate diagnostic codes as in the related section for ankylosis of individual digits. Accordingly, separate evaluations for the limitations of the index and long fingers are not warranted. Romina Casadei Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel