Citation Nr: 18160027 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-39 297 DATE: December 20, 2018 ORDER Entitlement to an initial compensable rating for fracture with deformity, 4th digit, left hand, is denied. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for an eye condition is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial compensable rating for hallux valgus, left foot, rated as noncompensable prior to March 16, 2018 and in excess of 10 percent from June 1, 2018 is remanded. Entitlement to an initial compensable rating for hallux valgus, right foot is remanded. FINDINGS OF FACT 1. The Veteran’s fracture with deformity, 4th digit, left hand, throughout the period of appeal, has resulted in limitation of motion, with evidence of pain on motion and with use, but without involvement of multiple digits on the same hand. 2. Bilateral hearing loss is related to service. 3. A low back disability is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for fracture with deformity, 4th digit, left hand, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5230. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.385 (2017). 3. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. 1111, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to July 1986. The Board notes that additional VA treatment records were added to the record after the June 2016 Statement of the Case. However, these records are not relevant to the issue being denied below and a waiver of initial review by the Agency of Original Jurisdiction (AOJ) is not required. The Veteran also submitted relevant records. However, in light of the date of his VA Form 9, these records may be considered by the Board in the first instance. Entitlement to an initial compensable rating for fracture with deformity, 4th digit, left hand Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Sharp v. Shulkin, 29 Vet. App. 26 (2017). It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against an initial compensable rating for the Veteran’s service-connected left ring finger disability. Specifically, the Veteran has been rated at a noncompensable rating for his service-connected left ring finger disability for the entire appeal period. The Veteran’s service-connected left ring finger disability is rated at 0 percent under Diagnostic Code 5230. Under Diagnostic Code 5230, a maximum zero percent rating is assigned for any limitation of motion of the ring finger (whether on the major (dominant) or minor (non-dominant) hand). 38 C.F.R. § 4.71a, Diagnostic Code 5230. Therefore, the Veteran is in receipt of the maximum disability rating available under Diagnostic Code 5230. The Board must also consider other potentially available Diagnostic Codes. Diagnostic Code 5227 applies to ankylosis of the ring or little finger, whether favorable or unfavorable, and whether on the dominant hand or not. The only available rating under this Diagnostic Code is also noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5227. 38 C.F.R. § 4.71a, Diagnostic Code 5010 pertains to traumatic arthritis. Under that code, traumatic arthritis is to be rated as degenerative arthritis. Ratings for degenerative arthritis are to be based on limitation of motion and, if noncompensable by that method, a rating of 10 percent is warranted for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For rating purposes, a hand is considered a group of minor joints. 38 C.F.R. § 4.45(f). The Veteran was provided a VA examination in September 2013. At that time, the Veteran reported daily flare-ups of the left hand. Upon physical examination, the VA examiner noted limitation of motion of the left ring finger only. There was no gap between the thumb pad and fingers or between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the paly with the fingertips. The examiner also specifically stated that the Veteran does not have ankylosis of any fingers although he had decreased dexterity of the left hand. The examiner also noted that the Veteran had less movement than normal, weakened movement, incoordination, pain on movement, and deformity on the left ring finger. Based on the evidence described above, the Board finds that the Veteran’s left ring finger disability does not warrant a compensable rating. As stated above, Diagnostic Code 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71, Diagnostic Code 5230. The Board acknowledges the Veteran’s report of limited motion, but the provisions of 38 C.F.R. § 4.59 do not apply when the applicable Diagnostic Code does not provide a compensable rating. Sowers v. McDonald, 27 Vet. App. 472 (2016). Therefore, a compensable rating under Diagnostic Code 5230 is not warranted. The Board has also considered whether a compensable rating might be available under another Diagnostic Code. As the Veteran retains mobility in his left ring finger, by definition he does not manifest ankylosis of any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski 3 Vet. App. 259 (1992). Even if he did, as stated above, the Diagnostic Code for ankylosis of a ring finger also does not provide for a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5227. Imaging studies indicated mild posttraumatic joint space loss of the ring finger and suspect mild swelling over the metacarpal heads, but there were no acute bone or joint findings involving the left hand. Therefore, the Board finds that a compensable rating is also not warranted under Diagnostic Code 5003 The Board recognizes the Veteran’s lay statements of pain and the observed limitation of motion in his left ring finger. However, limitation of motion does not entitle the Veteran to a higher disability rating. As stated above, under DC 5230, he is already in receipt of the maximum schedular disability rating available for limitation of motion of the left ring finger. Thus, even when considering the Veteran’s complaints of pain, weakened movement, incoordination, deformity, and limitation of motion, the requirements for a compensable disability rating for the left ring finger are not met. Accordingly, the Board finds that the current noncompensable evaluation adequately compensates the Veteran for the pain and functional impairment caused by his service-connected left ring finger disability. DeLuca, 8 Vet. App. at 202; 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, to the extent the September 2013 VA examination failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. In this respect, the Court in Johnston, supra, indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires other symptoms unrelated to limitation of motion, 38 C.F.R. § 4.40 and 4.45 are not for application. The Board observes that the Veteran also has a scar on the left ring finger. The VA examiner noted a scar that was not painful, unstable, or greater than 39 sq. cm. in area. Additionally, there was no evidence that the scar resulted in limitation of function. Thus, the Veteran’s left ring finger scar does not satisfy the criteria for a compensable disability rating under the rating criteria. See 38 C.F.R. § 4.118, DC 7800-7805. The Board finds that a preponderance of the evidence is against the Veteran’s claim for a compensable rating for his service-connected left ring finger disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Neither the Veteran nor his representative have raised any other issues regarding his left ring finger, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for bilateral hearing loss The Veteran contends that service connection is warranted for bilateral hearing loss. Although he was found to have a hearing defect at service entrance, this was due to a pure tone threshold of 35 at 500 Hertz. Under VA law, this is not a hearing loss disability. In a case where the degree of hearing loss noted on a veteran’s entrance examination did not meet VA’s definition of a “disability” for hearing loss under § 3.385, the Veterans Court held that that veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111. Further, the Veterans Court held that the demonstrated hearing loss was not a “defect”; and that the term “defect” should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a “disability” under 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). The Veteran was afforded a VA examination in September 2013. The examiner noted that the Veteran has sensorineural hearing loss in both ears, but opined that the Veteran’s hearing loss was not related to his active service and reasoned that was because there was no significant threshold shift during service. The absence of a hearing loss disability during service or at separation from service is not fatal to a claim of service connection, and a rationale based solely on the absence of hearing loss during service or at separation is legally insufficient. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In addition, the examination report did not include an opinion on the relative probability of whether the Veteran’s hearing loss was secondarily related to tinnitus. Because the Veteran is service-connected for tinnitus, the medical opinion is not adequate. An examiner must discuss the relationship between hearing loss and tinnitus. See Fountain v. McDonald, 27 Vet. App. 258, 275 (2015) (discussing correlation between hearing loss and tinnitus and the need for medical opinions to address any medical connection between the two where both are diagnosed). While the Board could certainly remand the claim to attempt to obtain an adequate medical opinion, the Board finds that this is not necessary. VA has acknowledged that the Veteran sustained acoustic trauma during his service. He currently has a hearing loss disability that is compliant with VA’s definition. He also has service-connected tinnitus. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). In this case, the Board finds that the Veteran’s hearing loss cannot be disassociated from his service-connected tinnitus, which is likely to affect his hearing acuity. The Board finds that the evidence in favor of a relationship between the Veteran’s bilateral hearing loss and his service-connected tinnitus has attained relative equipoise with the evidence against such nexus. With resolution of all reasonable doubt in favor of the claim, the Board concludes that service connection for bilateral hearing loss is warranted. Entitlement to service connection for a back disability The Veteran is seeking entitlement to service connection for a back disability. At entry into service in January 1980, the Veteran’s spine was clinically normal. Thus, the presumption of soundness attaches. At service separation in June 1986, the examination was abnormal for back pain with percussion at L4-S2. The Veteran’s June 1986 separation examination also reflects that the Veteran fractured his back in childhood and was treated with a body cast and hospitalization for 6 months and had current complaints of recurrent back pain. The record includes an October 2013 VA opinion concluding that the Veteran’s low back disorder was a pre-existing condition and was not incurred in service. The Board finds the October 2013 VA opinion to be inadequate. To rebut the presumption of soundness, there must be clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. In this case, the evidence establishes that there was no back disability at service entrance; however, the Veteran’s back was symptomatic during service, and abnormalities of the lumbosacral spine were noted on the examination at service separation. The Board finds that there is not clear and unmistakable evidence both that there was a pre-existing disability and that such disability was not aggravated by service. Accordingly, the presumption of soundness is not rebutted in this case. In light of these findings, the Board concludes that service connection for a low back disability is warranted. REASONS FOR REMAND Entitlement to service connection for an eye condition is remanded. Service treatment records reflect that the Veteran had a congenital spot in his left eye upon entrance and pigmented sclera lateral in the left eye upon separation. A July 1986 service treatment record shows that the Veteran was evaluated for foreign body sensation in his left eye which was noted to be resolved. VA treatment records also reflect that the Veteran has blepharitis with dry eyes and has had repair of eyelid ptosis and left upper eye lid cysts removal in October 2012 with a repeat surgery in October 2015. The Veteran was afforded a VA examination in September 2013, wherein the examiner noted that the Veteran currently has bilateral blepharoplasty that resulted in an incomplete lid closure that can cause or caused his dry eyes. The examiner also noted that he had surgery in 1982 and 1986. There is no documentation regarding these claimed surgeries. Accordingly, an attempt should be made to locate these records if possible. Entitlement to service connection for headaches is remanded. The Veteran is seeking entitlement to service connection for headaches. At service entrance in January 1980, the Veteran’s head was clinically normal. Therefore, the presumption of soundness attaches. As contrasted with the Veteran’s low back, at service separation in June 1986, the Veteran’s head was also clinically normal. Accordingly, it cannot be concluded that a headache disability began in service. The record includes an October 2013 VA opinion concluding that the Veteran’s headaches are pre-existing conditions and were not incurred in service. The Veteran’s June 1986 separation examination reveals that the Veteran had a head injury in childhood secondary to bring hit in the back of his head with normal recovery. In addition, the Veteran reported a history of frequent or severe headaches. The Veteran reported severe headaches since March 1986 secondary to tension, which resolved with rest and relaxation. The Board finds the October 2013 VA opinion to be inadequate. To rebut the presumption of soundness, there must be clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. The 2013 VA opinion provider noted the Veteran’s head injury prior to his active service but did not use the correct standard of “clearly and unmistakably” when providing an opinion. As such, a new VA examination and opinion as to the etiology of the Veteran’s headaches must be obtained on remand. Entitlement to service connection for an acquired psychiatric disorder is remanded. VA treatment records reflect a current diagnosis of posttraumatic stress disorder (PTSD). What remains to be determined, however, is whether the evidence supports a finding that the Veteran experienced an in-service stressor that led to the development of PTSD. Specifically, the Veteran has alleged he has PTSD secondary to military sexual trauma (MST). According to the February 2018 VA treatment report, the Veteran reported persistent depression and the onset of mental health problems in his 20s. However, the VA treatment records did not explain further details regarding the Veteran’s claimed MST. Remand is required to allow VA to attempt to corroborate the Veteran’s reported stressor and send the Veteran notification as required under 38 C.F.R. § 3.309 (f)(5). Entitlement to an initial higher rating for hallux valgus, left foot, rated as noncompensable prior to March 16, 2018 and in excess of 10 percent from June 1, 2018 is remanded. Entitlement to an initial compensable rating for hallux valgus, right foot is remanded. The record reflects that the Veteran’s hallux valgus may have increased in severity since the last VA examination. In March 218, the Veteran complained of bilateral foot pain. He underwent surgery for his left hallux valgus and it was noted that there was a plan for surgical intervention on the right foot as well. A temporary evaluation of 100 percent was assigned effective March 16, 2018 and a 10 percent evaluation was assigned effective June 1, 2018 for the Veteran’s service-connected hallux valgus, left foot. See July 2018 rating decision. As the Veteran’s last foot examination was in September 2013, more than 5 years ago, and as there is evidence of worsening, a new examination is necessary to decide the claims. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s complete service personnel records. All efforts to obtain these records should be fully documented, and any source contacted must provide a negative response if records are not available. The Veteran must be notified of the outcome of any search. 2. Attempt to obtain information regarding the Veteran’s claimed eye surgeries in 1982 and 1986. If he provides adequate identifying information, assist him in obtaining those reports. If the reports substantiate that the Veteran had surgeries during service, obtain a supplemental medical opinion as to whether it is at least as likely as not (at least 50 percent probability) that any current eye or eyelid condition was incurred in service or is otherwise related to service. 3. Schedule the Veteran for an appropriate VA examination in connection with his claim for entitlement to service connection for headaches. The claims file and copies of all pertinent records must be made available to the examiner for review. The examiner is asked to answer the following: (a) Does the evidence of record clearly and unmistakably show that the Veteran had a headache disability that existed prior to his entry onto active duty? The examiner should consider and discuss as necessary the Veteran’s June 1986 separation examination noting that he had a head injury in childhood secondary to bring hit in the back of his head with normal recovery; and he experienced severe headaches since March 1986 secondary to tension, which resolved with rest and relaxation. (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting headache was not aggravated by service, or that any increase in disability was due to the natural progression of the disease? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. 4. Attempt to corroborate the Veteran’s reported personal assault, described as a military sexual trauma, and send the Veteran notification as required under 38 C.F.R. § 3.309(f)(5). 5. Schedule the Veteran for a VA examination that addresses his claim of entitlement to service connection for an acquired psychiatric disorder. The examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, behavioral changes, etc., corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304 (f)(5)), and if not, the examiner should indicate whether he/she otherwise believes a personal assault occurred given the Veteran’s psychological presentation. Advise the VA examiner that VA regulations provide that evidence other than service records may be used to corroborate that an alleged assault occurred, such as evidence of behavior changes including deterioration in work performance and episodes of depression, panic attacks, or anxiety without an identifiable cause. If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any diagnosed PTSD is at least as likely as not related to the in-service personal assault. For any other diagnosed psychiatric disability, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the claimed military sexual trauma. The examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinion. 6. Schedule the Veteran for an appropriate VA foot examination to assess the current severity of his hallux valgus. All indicated studies, including x-rays, should be performed The Veteran’s claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate DBQ should be completed. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel