Citation Nr: 18158618 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-54 173 DATE: December 18, 2018 ORDER Service connection for bilateral hearing loss is granted. A 10 percent rating for left hand (residuals of fractured left 2nd and 3rd metacarpals) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The claim to reopen the previously denied claim for service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. Bilateral hearing loss was noted within one year after separation from service and has been continuously experienced since then. 2. The Veteran’s left-hand is shown to have painful motion and a gap of 0.5 cm between his left index finger and the proximal transverse crease of the left hand with the finger flexed to the extent possible, but does not show other functional loss or damage in nerves or muscles that is sufficient to warrant the assignment of a higher rating or a separate compensable rating. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for a 10 percent rating, but no higher, for left hand impairment have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.73, 4.124a, Diagnostic Codes 5228-30, 5309, 5216-27, 8515-17. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1969 to September 1996. Of note, a motion to advance this appeal on the Board’s docket has been raised by the appellant. The undersigned is granting the motion and advancing the appeal on the docket based upon a finding that the appellant turned age 75 in December 2018. 38 C.F.R. § 20.900(c). As such, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(b). Service Connection for Hearing Loss 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran is seeking service connection for bilateral hearing loss, which he believes, as result of his exposure to dental equipment noise during his time military service where he served as a dentist. Service personnel records confirm that the Veteran’s military specialty was dentist. Therefore, exposure to dental tool noise during service is conceded. U.S.C. § 1154(a). However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused hearing loss for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R.§3.385. The Veteran was afforded a VA examination in June 2012 which confirmed the presence of hearing loss in both ears for VA purposes. The next question is whether the Veteran’s hearing loss was caused by his noise exposure in military. Service treatment records (STRs) contain audiometric testing results in February 1969, around the time of enlistment, as follows: Frequencies 500 Hospitalization 1000 Hz 2000 Hz 3000 Hz 4000Hz Right Ear 5 0 0 0 5 Left Ear 0 0 0 0 5 Less than a year after separating following a nearly 30 year military career, audiometric testing in August 1997 (within a year after the Veteran separated from service) showed the following results: Frequencies 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000Hz Right Ear 5 0 10 30 25 Left Ear 5 0 10 25 20 While the audiometric testing in 1997 did not show hearing loss in either ear for VA purposes, it did show a significant shift in hearing acuity during service at the high frequencies in particular. In the years thereafter, the Veteran’s hearing acuity continued to deteriorate to the point that he was found to have bilateral hearing loss for VA purposes on testing in 2012. As such, the Board finds continuity of symptomatology of hearing loss has been established from service. Additionally, the Veteran provided medical studies showing that dental drills could cause hearing loss to dental professionals, even though the VA examiner in 2012 could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss. In sum, the criteria for service connection for bilateral hearing loss have been met and service connection is granted. Increased Rating for Left Hand The Veteran’s left hand disability is rated as noncompensable. He is seeking a higher rating. In August 2016, the Veteran was afforded two VA examinations for his hand condition. The neurological examination showed no neurological deficit after the old fractures in the left 2nd and 3rd metacarpals had healed. On examination, the Veteran demonstrated muscle strength at 5/5 for left grip and pinch, as well as a normal condition of upper extremity nerves and radicular groups. The Veteran did not show any muscle atrophy or paralysis in the hand. The hand and finger examination indicated that the Veteran had degenerative arthritis in his left hand and he is right-handed. The Veteran reported some aching pain and diminished range of motion in left 2nd finger. On examination, the Veteran demonstrated no gap between the pad of his left thumb and the left fingers and no gap between the fingers and proximal transverse crease of the left hand on maximal finger flexion, except for a gap of 0.5 between the left index finger and proximal transverse crease of the left hand on maximal finger flexion. There was no evidence of pan with the use of the left hand or pain on palpation. The long finger and the index finger had full range of extension to 0 degrees. While the Veteran was able to perform repetitive use of left hand for at least 3 times without additional limitation of motion, the examiner indicated that repeated use over time did cause pain, lack of endurance and incoordination. The Veteran did not report any fare-ups. Muscle strength testing was at 5/5 in left hand. There was no muscle atrophy or ankylosis of any thumb or finger joints in left hand. There were no other significant diagnostic test findings or results other than degenerative arthritis. The examiner indicated that the impairment of the Veteran’s left hand caused interference with his ability to handle fine objects. The Veteran’s VA treatment records show that the Veteran had treatment of arthritis pain in his hands, and do not reveal any left hand condition which is worse than what was shown at the August 2016 VA examinations. Specifically, there is no record of any range of motion testing, or ankylosis. The Veteran’s left hand disability is first evaluated for limitation of motion under Diagnostic Code 5228-5230. 38 C.F.R. 4.71a. Specifically, DC 5258 evaluates limitation of motion of thumb. A 10 percent rating is assigned when there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; A 20 percent rating is assigned when there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Here, the VA examination shows no gap between the Veteran’s left thumb pad and his left fingers, therefore, a compensable rating is not warranted under DC5258. DC 5229 evaluates limitation of motion of index or long finger. A maximum 10 percent rating is assigned when 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. Here, the VA examination show that there was a gap of 0.5 between the Veteran’s left index finger and proximal transverse crease of the left hand on maximal finger flexion, and the long finger and the index finger had full range of extension of 0 degree. Therefore, a compensable rating is not warranted under DC5259. DC 5230 evaluates limitation of motion of ring or little finger. However, no compensable rating is assigned for any limitation of motion of ring or little finger. Therefore, a compensable rating is not available under DC5230. The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the August 2016 VA examination showed that repeated use of the Veteran’s left hand over time did cause pain, lack of endurance and incoordination, and the VA treatment records also indicate that he Veteran had pain in his hands. As such, a 10 percent rating is assigned for the pain in left hand. However, a higher rating is not warranted. To meet the criteria for a 20 percent rating, it needed to be shown that the Veteran has a gap of more than two inches (5.1 cm.) between the left thumb pad and the left fingers, with the thumb attempting to oppose the fingers. Here, the VA examination showed no gap between the Veteran’s left thumb pad and his left fingers and the Veteran was able to successfully perform repetitive motion testing without additional loss of motion. Absent evidence of functional loss worse than 10 percent evaluation, a rating in excess of 10 percent based on functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not warranted. The Board also considered whether higher rating can be assigned under other Diagnostic Codes. Diagnostic Code (DC) 5309 evaluates the impairment of the intrinsic muscles of hand. As discuss above, the records do not show any muscle damage of the Veteran’s left hand, therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Codes 8515-8517 evaluates the neurological impairment of hand. As discuss above, the records do not show any nerve damage of the left hand, therefore, these Diagnostic Codes are not applicable and will be discussed no further. Diagnostic Codes 5216-5227 evaluates ankylosis of fingers. The record contains no evidence of ankylosis of left fingers, therefore, these Diagnostic Codes are not applicable and will be discussed no further. In sum, the evidence does not show that the Veteran has any neurological impairment or muscle damage in his left hand. His left index finger has slight limitation of flexion but does not rise to the degree of compensable level. A 10 percent rating is assigned for pain in left hand. REASONS FOR REMAND The Veteran is seeking service connection for his GERD, which he believes occurred during or otherwise caused by his service. The Veteran was provided a VA examination in August 1997 (within 1 year after separation from service), at which the examiner indicated that the Veteran seemed to have classic GERD symptoms for the previous two years and ordered an upper endoscopy to evaluate this condition. However, the Veteran appears to have cancelled the endoscopy appointment, and based on this cancellation, his claim was denied. In his substantive appeal (Form 9), the Veteran also stated that he was treated for GERD at the medical clinic at Aviano air force base, Italy. Therefore, the evidence is not clear whether the Veteran has GERD that occurred during or within 1 year after separation from service, or otherwise caused by his service. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the diagnosis and etiology of his GERD condition. The examiner should determine whether the Veteran has GERD (explaining the basis for the conclusion), and if so should address the following question: (a) Is it at least as likely as not (50 percent or greater) that GERD either began during or within 1 year after the Veteran’s separation from service, or was otherwise caused by his service? Why or why not? Specifically, the examiner should address the assessment by the examiner in the August 1997 VA examination that Veteran seemed to have classic GERD symptoms for the past two years, as well as the Veteran’s statement that he was treated for GERD at the medical clinic at Aviano air force base, Italy. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel