Citation Nr: 18153875 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-53 967 DATE: November 28, 2018 ORDER Entitlement to service connection for ulnar nerve impairment (claimed as a right-hand condition) is granted. Entitlement to service connection for carpal tunnel syndrome (claimed as a right-hand condition) is denied. Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s ulnar nerve impairment (claimed as a right-hand condition) is related to the Veteran’s in-service injury to his right hand. 2. The Veteran’s carpal tunnel syndrome (claimed as a right-hand condition) is not related to the Veteran’s in-service injury to his right hand. 3. Throughout the entire appeal period, the Veteran’s bilateral hearing loss was manifested by hearing impairment corresponding to no worse than auditory acuity of Level II in the right ear and Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for ulnar nerve impairment (claimed as a right-hand condition) are met. 38 U.S.C. §§ 1110 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for carpal tunnel syndrome (claimed as a right-hand condition) are not met. 38 U.S.C. §§ 1110 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1950 to May 1954. This matter comes before the Board on appeal from March 2012 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A videoconference hearing was held in July 2018 before the undersigned Veterans Law Judge. As a preliminary matter, the Veteran’s service treatment records (STRs) are incomplete as a result of fire-damage. As in this appeal, when the service records are incomplete, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006); Kowalski v. Nicholson, 19 Vet. App. 171,179 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, this does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of some of the STRs due to the 1973 fire at the National Personnel Records Center (NPRC) facility does not create an adverse-presumption rule. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Generally, to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309 (a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or (2) where the condition noted during service is not in fact shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including other organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for carpal tunnel syndrome and ulnar nerve impairment (claimed as a right-hand condition) The appellant contends that the Veteran’s right-hand carpal tunnel syndrome and ulnar nerve impairment are a result of the in-service injury to the Veteran’s right hand. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that at the time of his death, the Veteran had a diagnosis of ulnar nerve impairment that was related to the 1953 in-service laceration to his right hand. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Due to the significant fire-related damage to the STRs, the Board could not determine the exact date of the Veteran’s in-service laceration to his right hand. A September 1953 STR indicated that he had sutures removed, but there was no indication from where the sutures were removed. The September 1953 STR is consistent with the Veteran’s contention that he sustained a laceration to the palm of his right hand in September 1953. Indeed, the Veteran’s separation Report of Medical Examination indicated that he had a 2 ½ inch scar on his right hand, extending from his wrist to his palm. The Veteran’s post-service medical records indicated that in November 2002, VA diagnosed the Veteran with intermittent right-hand numbness, rule-out cervical radiculopathy. An August 2004 VA orthopedic treatment note indicated that the Veteran endorsed aching pain in his right hand along the ulnar border and across the palm toward the volar aspect of the metacarpophalangeal (MP) joint. The Veteran also endorsed numbness in the dorsum of his MP joint and down the dorsum of the right long finger. The Veteran was diagnosed with synovitis MP joint, right long finger, etiology unknown. The Veteran reported that he sustained an injury to his right hand during active duty and experienced persistent tingling in the area since separation. In September 2004, the Veteran was afforded a VA orthopedic examination of his right hand and endorsed “numbness and constant hurting”. On VA outpatient treatment in September 2008, the Veteran was diagnosed with possible carpal tunnel syndrome. In May 2012, after the Veteran’s surgical right long finger ganglion excision and trigger release, a VA orthopedic hand surgeon assessed that the Veteran had significant numbness in the distribution of the ulnar nerve in the right hand. The orthopedic hand surgeon also noted that the Veteran had positive Tinel’s sign at the laceration site on his right hand. In the surgeon’s judgment, the Veteran’s “ulnar nerve impairment may be a result of the original, in-service laceration” to the Veteran’s right hand. In October 2012, the Veteran was afforded a VA Peripheral Nerves Conditions examination and was diagnosed with carpal tunnel syndrome. An electromyography (EMG) showed evidence of a focal bilateral median neuropathy at the wrist. The Veteran reiterated that in 1953, a propeller lacerated his right hand; the laceration was sutured and healed well. The examiner rendered the clinical assessment that the Veteran’s right-hand injury during active duty involved the branch of the ulnar nerve. The examiner noted that the Veteran’s scar is on the right ulnar side. Regarding the Veteran’s carpal tunnel syndrome diagnosis, the October 2012 VA examiner noted that a September 2008 EMG/Nerve Conduction Study (NCS) showed bilateral carpal tunnel syndrome. The examiner noted that the Veteran had right carpal tunnel release surgery in May 2009, and a September 2011 surgical removal of a mass at the base of the right long finger due to a ganglion cyst of the tendon sheath. According to the examiner, when carpal tunnel syndrome is diagnosed, it involves the median nerve. The examiner noted that the Veteran’s symptoms began in 2003, 50 years after separation; therefore, in the examiner’s judgment, the time interval unlikely relates cause and effect. The examiner explained that the Veteran’s ganglion cyst on the tendon sheath is not caused by a nerve injury. The examiner added that medical literature shows that ganglion cysts are not related to nerves, but rather arise from the herniation of synovium and joint fluid through weakness in the joint capsule. The inciting factor may be a tear or localized degenerative change in the tenosynovium. The examiner also explained that tenosynovitis (trigger finger) can develop in the flexor sheaths of the fingers and thumb as a result of repetitive use. In several statements, the Veteran asserted that his right-hand condition was a result of his 1953 in-service injury. In similar fashion, during the July 2018 hearing, the appellant testified that the Veteran’s right-hand condition was a result of the 1953 laceration to his right hand. The appellant testified that the Veteran experienced right hand numbness and functional impairment; namely, he had difficulty grasping things and would drop things. In light of the foregoing, and resolving doubt in favor of the Veteran, the Board is satisfied that the criteria for the establishment of service connection for ulnar nerve impairment have been met. At the time of his death, the Veteran had a diagnosed neurological impairment of the right hand. The clinical evidence of record, namely the May 2012 VA orthopedic hand surgeon’s assessment and the October 2012 Peripheral Nerves Condition examination and medical opinion, suggest that the Veteran’s ulnar nerve impairment is related to the 1953 in-service injury to his right hand. As such, service connected is warranted. 38 U.S.C. 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). Service connection for carpal tunnel syndrome, however, is not warranted. 38 U.S.C. 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). 2. Entitlement to a compensable evaluation for bilateral hearing loss The appellant contends that the Veteran’s service-connected bilateral hearing loss was more disabling than reflected by the current noncompensable rating. Relevant evidence of record consists of a February 2012 VA Hearing Loss and Tinnitus examination, the Veteran’s statements and the appellant’s July 2018 testimony. Disability evaluations are determined by comparing a veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s service-connected bilateral hearing loss was evaluated as noncompensable under DC 6100 for hearing loss. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral. The appellant contends that the Veteran is entitled to a compensable evaluation for service-connected bilateral hearing loss. The results of the Veteran’s February 2012 VA audiometry examination revealed no worse than Level II auditory acuity in the right ear and Level I auditory acuity in the left ear. The audiometry results, in decibels, read: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 55 70 70 LEFT 35 50 50 60 65 The puretone threshold averages were 61 for the right ear and 56 for the left ear. Speech recognition scores were 92 percent for the right ear and 94 percent for the left ear. Using Table VI, the Veteran had Level II hearing loss in the right ear and Level I hearing loss in the left ear. During the July 2018 hearing, the appellant testified that she and the Veteran would go out by themselves because the Veteran had difficulty hearing in large crowds. The appellant testified that the Veteran would have to turn up the volume of the television because he had difficulty hearing it at a normal volume. As a result, the appellant’s representative requested extra-schedular consideration based on the impact of the Veteran’s bilateral hearing loss on his activities of daily living. Under the foregoing circumstances, the Board finds that the record has presented no basis for the assignment of a compensable disability rating for the Veteran’s service-connected bilateral hearing loss. His bilateral hearing acuity was no worse than Level II in the right ear and Level I in the left ear, which equates to a 0 percent disability rating under the VA Schedule for Rating Disabilities. As previously noted, the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent audiological evaluations of record. See Lendenmann, supra. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board in no way discounts the difficulties that the Veteran experienced as a result of his service-connected bilateral hearing loss. The Veteran was competent to opine on facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent audiological evaluation of record. See Lendenmann, supra. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that throughout the appeal period, the record has presented no basis for the assignment of a compensable disability rating for the Veteran’s service-connected bilateral hearing loss. Moreover, in Doucette v. Shulkin, 28 Vet. App. 366 (2017) it was held that unlike a majority of the conditions in VA’s Rating Schedule the rating criteria for hearing loss do not list any specific symptoms or functional effects. However, they contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure, i.e., puretone audiometry and controlled speech discrimination test. Two exceptions have been created, at 38 C.F.R. § 4.86, when speech discrimination tests in a controlled setting are often near normal, but they do not reflect the true extent of difficulty understanding speech in the everyday work environment, even with the use of hearing aids and, also, if there is a pattern of hearing loss constituting an extreme handicap in the presence of any environmental noise, which often cannot be overcome by the use of hearing aids. In Doucette, the Court stated that on their face, the rating criteria schedule, do not otherwise account for other functional effects, e.g., dizziness, vertigo or recurrent loss of balance. If there is evidence of such symptoms, the Board must explain whether the rating criteria contemplate the functional effects of those symptoms. In this case, the Veteran has not reported having such symptoms, much less alleged that any such symptoms are due to his service-connected hearing loss. As such, consideration of a compensable rating on an extraschedular basis pursuant to 38 C.F.R. 3.321(b)(1) is not warranted because (1) the schedular criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech, which are the type/nature of complaints reported by the appellant on behalf of the Veteran in this case; and (2) there is no general requirement on the Board to engage in extraschedular analysis in all hearing loss rating cases. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); Martinak v. Nicholson, 21 Vet. App. 447 (2007). See also Yancy v. McDonald, 27 Vet. App. 484 (2016). For the foregoing reasons, the Board finds that the claim for a compensable evaluation for the Veteran’s service-connected bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for increase, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel