Citation Nr: 20028071 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-51 204 DATE: April 22, 2020 ORDER Entitlement to an initial compensable rating for a left ear hearing loss disability is denied. Entitlement to an initial rating in excess of 10 percent residuals of a right fifth metacarpal fracture is denied. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for right knee arthritis is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for right elbow tendonitis residuals is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left ear hearing has been manifested by hearing acuity of no worse than Level V. 2. The Veteran’s residuals of a right fifth metacarpal fracture have shown objective evidence of painful motion with functional loss. 3. The Veteran’s right ear hearing loss disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The Veteran’s right knee arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an initial rating in excess of 10 percent rating for residuals of a right fifth metacarpal fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40-4.70, 4.71a Diagnostic Code 5003-5224. 3. The criteria for service connection for a right ear hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for right knee arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1971 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2017 and April 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable rating for left ear hearing loss The Veteran seeks a compensable rating for left ear hearing loss. He states that he often has to ask his wife or other people to repeat what they are saying, and that his hearing loss interfered with his responsibilities at work. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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 results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). A February 2017 VA examination reveals that the Veteran reported frequent difficulty understanding speech in conversations and on television. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 40 50 55 43 68% LEFT 25 40 55 60 45 64% The Board notes the only the left ear hearing loss disability is service-connected. Applying the results to Table VI, the findings yield a numeric designation of Level V in the left ear. An exceptional pattern of left ear hearing impairment under 38 C.F.R. § 4.86 was not shown. The right ear does not meet the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Accordingly, the right ear is assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Entering the resulting bilateral numeric designation of Level I for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. Based on the evidence above, an initial compensable rating for the Veteran’s left ear hearing loss disability is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty understanding speech and needing to ask people to repeat statements. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable rating for left ear hearing loss. The claim for a higher initial rating is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial rating in excess of 10 percent residuals of a right fifth metacarpal fracture The Veteran contends that he is entitled to an initial rating in excess of 10 percent for his disability of the right fifth metacarpal fracture. The Veteran’s disability is rated at 10 percent under 38 C.F.R. § 4.71a, DC 5003- 5224. Ratings for the fingers of the hand are available pursuant to Diagnostic Codes (DCs) 5216 - 5230. Specifically, DCs 5216 - 5227 provide evaluations for various forms of ankylosis; DCs 5228 - 5230 provide evaluations for limitation of motion of individual digits. Under DC 5224, a limitation of motion of the thumb is assigned a noncompensable rating. 38 C.F.R. § 4.71a. Under DC 5228, a limitation of motion of the little finger is assigned a noncompensable rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis the interphalangeal, metacarpal, and carpal joints are considered a group of minor joints. 38 C.F.R. § 4.45. Treatment records show persistent reports of trigger finger pain and symptoms. In May 2010, the Veteran reported right-handed trigger finger pain and locking, which improved when he warmed up his hand. Physical examination did not show specific abnormality of the right hand, and no obvious contracture was observed. The examiner assessed trigger finger, responding well to home remedy. In October 2016, the Veteran reported trigger finger in his thumb, second, and third fingers. He indicated that he fractured his right hand many years before, and had frequent pain and mild swelling. In November 2016, the Veteran reported a history of trigger finger in several digits of the right hand. He also reported a history of swelling intermittently in the right hand. The Veteran underwent a VA examination in March 2017. The Veteran reported stiffness, pain, locking, and aggravation of symptoms with repetitive motions or keyboarding. The Veteran denied flare-ups of the hand, finger and thumb joints. The March 2017 VA examination revealed no limitation of motion in the right hand. Upon examination, range of motion findings were normal and there was no objective evidence of pain during range of motion testing. There was no gap between the thumb pad and the finger and no gap between the fingertips and the proximal transverse crease of the palm. There was no additional limitation of motion with repetitive testing. The March 2017 VA examiner found that the condition did not impact the Veteran’s ability to perform occupational tasks. Based on the evidence of record, the Board finds that the Veteran’s residuals of right fifth metacarpal fracture do not warrant a higher initial rating. The Veteran’s current 10 percent rating already contemplates painful, but noncompensable limitation of motion of a group of minor joints under 38 C.F.R. §§ 4.59, 4.71a, DC 5003. As his disability does not involve arthritis of more than one minor joint groups and the evidence does not show degenerative arthritis with involvement of two or more major joints, a higher rating is not warranted under DC 5003. Higher ratings are not available for limitation of motion as the Veteran’s fingers have not shown actual limited in motion. While there has been some evidence of functional loss due to pain and swelling, there is no evidence that it so further restricts the range of motion such that a higher rating would be warranted pursuant to codes for limited ranges of motion of individual digits. At no point during the appeal period has the Veteran exhibited ankylosis of the hands or fingers. Diagnostic Codes 5216-5227 are therefore inapplicable. Additionally, there is no evidence that the Veteran would be equally well served by amputation and, as such, the Board finds that the symptoms of the right hand fifth metacarpal fracture is not equivalent to amputation of the finger or loss of use of the right hand. Under these circumstances, a rating pursuant to Diagnostic Codes 5125-5156 is not appropriate. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for his service-connected residuals of right fifth metacarpal fracture. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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 the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 3. Entitlement to service connection for a right ear hearing loss disability The Veteran asserts he has a right ear hearing loss disability related to noise exposure during active service. 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 an in-service injury, event, or disease. On entrance examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 On discharge examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 5 The Veteran underwent a VA examination in February 2017. A right ear hearing loss disability for VA compensation purposes was established. However, the VA examiner opined that the Veteran’s current right ear hearing loss disability is not caused by or a result of military service, including noise exposure. In discussing the rationale, the examiner explained that the Veteran’s hearing thresholds in the right ear was within normal limits at both his entrance and separation examinations, with no significant threshold shift evident during service for the right ear. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board concludes that, while the Veteran has a current diagnosis of right ear hearing loss, and evidence shows that noise exposure occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of right ear hearing loss began during service or is otherwise related to an in-service injury, event, or disease. The Board has also considered whether presumptive service connection is warranted by either the chronic disease manifesting to a compensable degree within one year from the date of separation of such service, or through a demonstration of continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The evidence does not otherwise demonstrate that the current right ear hearing loss manifested to a compensable degree within one year of separation of active service. Therefore, service connection is not presumed as a chronic disease under 38 C.F.R. §§ 3.307. 3.309 (a). Moreover, the Veteran has not indicated that he noticed diminished hearing acuity during service with continuity thereafter. Therefore, service connection is also not warranted under 38 C.F.R. § 3.303 (b) based on chronicity and continuity of symptomatology. The Veteran believes his right ear hearing loss is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examination report. As the preponderance of the evidence is against the claims, there is no doubt to be resolved and service connection for right ear hearing loss is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 4. Entitlement to service connection for right knee arthritis The Veteran seeks service connection for a right knee disability. He contends that his right knee disability is related to complaints of knee pain in service. The Veteran has a current diagnosis of right knee arthritis as evidenced by the March 2017 VA examination report. Right knee arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service treatment records show that at a medical examination in July 1979, the Veteran reported occasional pain in the right patella area that was aggravated with exercise, onset around March 1979. Service treatment records are otherwise silent for clinical findings or complaints related to a right knee disability. The Veteran noted low back pain on discharge, but did not report ongoing problems related to his right knee. Treatment records suggest the Veteran reported knee pain at an annual physical in August 2008. Subsequent treatment records are silent for knee pain reports, complaints, or treatment until 2014. In January 2014, the Veteran sought emergency room treatment for knee pain. He reported that his pain started suddenly about 5 days before in the afternoon. He indicated that it had worsened about a day and a half before, and that he then went to the emergency room. Subsequent treatment records show persistent knee pain complaints, treated with physical therapy and pain medication. The Veteran underwent a VA examination in March 2017. The Veteran reported that he had some physical therapy, and that he took Robaxin and Tylenol for some relief. He reported pain aggravation when standing more than 30 minutes, walking more than ¼ mile, and especially descending stairs. The examiner noted service treatment records showed complaints of occasional right patella pain aggravated with exercise in March 1979, no “sort. treatment.” The examiner opined that that the current right knee arthritis was less likely than not related to residuals of right patella injury in service. The examiner explained that service treatment records showed a single entry regarding the right knee, and was devoid of significant injury. The examiner indicated that this was a single self-limiting episode. The examiner concluded that the right knee arthritis is more likely than not caused by advancing age alone. Based on the foregoing, service connection for a right knee disability is not warranted. The current right knee arthritis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Treatment records show the Veteran first may have reported knee pain in 2008, sought emergency treatment for right knee pain in January 2014 and was not diagnosed with right knee arthritis until 2017, years after his separation from service and years outside of the applicable presumptive period. Service treatment records are notably silent for knee pain complaints between 1979 and the Veteran’s discharge in 1992. While the Veteran is competent to report experiencing symptoms of right knee pain since service and consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous 2014 treatment records, which show that he initially reported the onset of knee pain only a few days before seeking emergency room treatment in January 2014, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms are manifestations of right knee arthritis, he is not competent to determine that these symptoms were manifestations of right knee arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education, knowledge of pathology, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to normal age-related processes. The March 2017 VA examiner opined that the Veteran’s current knee disability was not related to service. Instead, the examiner attributed the Veteran’s knee symptoms to the normal age processes. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Service connection for right knee arthritis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right knee arthritis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. While the Veteran believes his right knee arthritis is related to an in-service injury, event, or disease, including right patella pain noted in service treatment records, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. 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 and VA examination report. There is no competent medical opinion to the contrary. The Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for a right knee disability, and the benefit sought on appeal is accordingly denied. See 38 U.S.C. § 5107 (b) (2014). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine is remanded. 2. Entitlement to a rating in excess of 10 percent for right elbow tendonitis residuals is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s degenerative joint disease of the lumbar spine and right elbow tendonitis, the examinations do not fully comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The VA examiner commented that there is no evidence of pain on passive range of motion testing, but did not provide the specific degrees of motion in each state. To be compliant with Correia, it is not enough that an examiner test range of motion for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The VA examiner must also include the results of the range of motion testing. See Correia, 28 Vet. App. at 168. 3. Entitlement to a TDIU is remanded. As the claims for an increased rating for degenerative joint disease of the lumbar spine and right elbow tendonitis are being remanded for further development, the Board will defer adjudication of the intertwined issue of entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative joint disease of the lumbar spine and right elbow tendonitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.