Citation Nr: 18155794 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-12 228A DATE: December 6, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a compensable rating for residuals of fracture, fourth digit with deformity, left hand is denied. FINDINGS OF FACT 1. Bilateral hearing loss disability did not manifest in service or within one year. The disability is not otherwise related to service. 2. Tinnitus did not manifest in service or within one year. The disability is not otherwise related to service. 3. Residuals of fracture, fourth digit with deformity, left hand is manifested by limited motion and pain on movement, with no ankylosis and no amputation. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for a compensable rating for residuals of fracture, fourth digit with deformity, left hand, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to August 1985. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for an organic disease of the nervous system if manifest to a compensable degree within one year. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran seeks service connection for a bilateral hearing loss disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to service. The Board concludes that the Veteran does not have hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The September 2012 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of difficulty hearing, it was not possible to render a diagnosis of bilateral hearing loss. The examiner stated that testing was unreliable for all values for both ears. The examiner noted that there was poor test-retest reliability and that responses to pure tones 0-10dB above acoustic reflexes suggest very poor validity. January 2017 testing revealed inconsistent results. Pure tone results showed moderate severe upsloping to mild through 2k HZ downsloping to severe sensorineural hearing loss in the right ear and severe upsloping to moderate sensorineural hearing loss through 1k Hz sloping to a profound mixed hearing loss in the left ear. Word recognition was 88 percent in the right ear and 92 percent in the left ear. The examiner noted that puretone thresholds and speech reception thresholds were not in agreement, and that the test results were not adequate for adjudication purposes. Another evaluation in February 2017 again found inconsistent results. Speech recognition thresholds were inconsistent with the pure tone average bilaterally. The March 2017 examiner again determined that it was not possible to test accurately as the results suggested poor validity. The examiner noted that otoacoustic emissions were robust for both ears and reflexes were within normal limits for the right ear. The Veteran could understand and follow instructions over audiometer at 45 dB without visual cues. The examiner also noted the Veteran has a history of unreliable test results on multiple tests, rendering all results invalid for rating purposes. Repeated testing over several years has failed to yield reliable results. Without reliable puretone and speech recognition testing, it is not possible to determine that a hearing loss disability exists. While the Veteran believes he has a bilateral hearing loss disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The weight of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability. Without a credible evidence of disability, service connection is not warranted under any theory of entitlement. The duty to assist is not a one way street or a blind alley. The repeated inconsistent results prevents an adjudication based upon accurate facts. 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. Tinnitus is a chronic disease and a presumptive disease, and the concept of continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271–72 (2015). The Veteran has reported that she currently has tinnitus, which she is competent to diagnose. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran reports that he has tinnitus that he believes is related to service. However, the Veteran’s statements regarding the onset of his tinnitus have been inconsistent. At separation, he reported no ear problems and no hearing loss. On medical examinations while in the reserves, he likewise reported no ear problems or hearing loss. As the recent statements are contradictory, the Board affords them little probative weight. Service treatment records contain no complaints of hearing loss or tinnitus. The Veteran denied hearing loss or ear trouble at separation. Treatment records show that the Veteran denied tinnitus on multiple occasions from 2000-2008. At the Veteran’s 2012 audiology examination, the Veteran reported that his tinnitus began in 1991. The examiner stated that it was less likely than not that the Veteran’s tinnitus is related to his active service. The examiner’s stated rationale was that there were no threshold shifts during service. At the Veteran’s 2017 examination, the Veteran stated that his tinnitus began approximately eight years prior. The examiner stated that an opinion regarding etiology could not be rendered due to the unreliable nature of the testing. The most probative evidence weighs against a finding that the tinnitus manifested in service or within one year of separation. Service treatment records do not reflect any complaints of tinnitus, and the Veteran denied any ear trouble on his separation examination. As noted above, the Veteran’s statements as to onset of the tinnitus are inconsistent. His denial of ear trouble at separation and his inconsistent statements regarding onset render any statement that tinnitus manifested in service not credible. Here tinnitus was not “noted” during service or within one year of separation. Rather, when tested, the ears were normal and he denied a pertinent history. Clearly, he did not have manifestations sufficient to identify or suggest a chronic disease entity during that time. It necessarily follows that the normal findings and denial of pertinent pathology is inconsistent with an assertion of continuity. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Increased Rating 3. Entitlement to a compensable rating for residuals of fracture, fourth digit with deformity, left hand Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings, and here as noted below staged ratings have been considered but are not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran contends he is entitled to a compensable rating for his service-connected residuals of fracture, fourth digit, left hand. The Board finds that based on the evidence of record, the preponderance of the evidence is against finding a compensable rating is warranted. Under Diagnostic Code 5230, ring finger limitation of motion has been assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5230. This Diagnostic Code provides for a noncompensable evaluation for any limitation of motion of the ring or little finger. In order to receive a compensable rating for a disability of the ring finger alone there must be amputation. Under Diagnostic Code 5155, a 10 percent rating applies for amputation of the ring finger at the proximal interphalangeal joint or proximal thereto and a 20 percent rating applies with metacarpal resection (more than one half the bone lost). These ratings apply regardless of whether the disability affects the dominant or the non-dominant hand. See 38 C.F.R. § 4.71a, Diagnostic Codes 5155. Based on the evidence of record, the Board finds that the preponderance of the evidence warrants finding a noncompensable rating is warranted for the entire period on appeal. The Veteran has reported difficulty lifting items and severe pain in his left ring finger. The Veteran is competent to report such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his residuals of fracture, fourth finger, left hand. The Veteran received VA examinations in September 2012 and April 2017. At the September 2012 examination the Veteran exhibited limited range of motion and pain on movement. Muscle strength testing was 4/5 for left hand grip. There was no ankylosis. At the April 2017 examination, the Veteran exhibited limited range of motion and pain on movement. Muscle strength testing was 4/5 for left hand grip. There was no ankylosis and no muscle atrophy. In this case, compensable evaluations are not available under Diagnostic Code 5230 for ring or little finger, limitation of motion. Rather, amputation is necessary in order to receive a compensable rating, which is not shown by the record. Additionally, 38 C.F.R. § 4.59 is not applicable because there is not a minimal compensable evaluation based on limitation of motion of the ring finger. In essence, even when we accept everything the Veteran has stated as true, a compensable evaluation is not warranted, as there has not been amputation of the   Veteran’s right ring finger. Here, the criteria contemplate any limitation of motion of the ring or little finger and assign a noncompensable evaluation. For all the foregoing reasons, the Board finds that a compensable rating for the right ring finger is not warranted at any time during this appeal. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel