Citation Nr: 21062032 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-17 235 DATE: October 6, 2021 ORDER An initial 10 percent rating for a left ring finger fracture with hand arthritis is granted. An initial rating higher than 10 percent for left LCL sprain with residual fibula fracture is denied. An initial compensable rating for bilateral hearing loss is denied. Service connection for dizziness is granted. Service connection for unspecified anxiety disorder is granted. Service connection for type II diabetes mellitus is denied. Service connection for migraine headaches is denied. Service connection for fatigue is denied. Service connection for a bilateral eye disability is denied. Service connection for high cholesterol is denied. FINDINGS OF FACT 1. The Veteran has painful arthritis of the left hand. 2. The Veteran's left LCL sprain with residual fibula fracture is manifested by 15 degrees of dorsiflexion and 35 degrees of plantar flexion. 3. The Veteran has level I hearing in his left and right ears. 4. The Veteran's dizziness has manifested to a compensable degree and is not attributable to any known clinical diagnosis. 5. The Veteran's unspecified anxiety disorder is related to active service. 6. Type II diabetes has a specific etiology and pathophysiology, and it not related to service. 7. Migraine headaches have a specific etiology and pathophysiology, and it not related to service. 8. The Veteran's fatigue is a symptom of hypothyroidism, which has a specific etiology and pathophysiology, and it not related to service. 9. Refractive error of the eyes is not a disability for VA benefits purposes. 10. High cholesterol is not a disability for VA benefits purposes. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for a left ring finger fracture with hand arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5228. 2. The criteria for an initial rating higher than 10 percent for left LCL sprain with residual fibula fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.71a, DC 5228. 3. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. 4. The criteria for service connection for dizziness are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for service connection for unspecified anxiety disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 7. The criteria for service connection for migraine headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 8. The criteria for service connection for fatigue are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 9. The criteria for service connection for a bilateral eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for high cholesterol are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from December 1976 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision. The Veteran initially requested a Board hearing as part of his appeal but withdrew that request in June 2020. A June 2020 Report of General Information shows that the Veteran mentioned withdrawing his appeal entirely. However, no written withdrawal was ever received, and therefore the Board will proceed with the appeal. Increased Ratings Left ring finger fracture with hand arthritis The Veteran is currently assigned a 0 percent rating by analogy under 38 C.F.R. § 4.71a, DC 5230. That code addresses limitation of motion of the ring or little fingers, and only provides for a 0 percent rating. However, the Veteran is also service-connected for arthritis of the hand. Painful arthritis is entitled to the minimum compensable rating for a joint. 38 C.F.R. § 4.59. There is no diagnostic code which addresses the hand generally. However, DC 5228 addresses limitation of motion of the thumb, and provides a minimum 10 percent rating when there is a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers. VA examinations from October 2016 and April 2017 show essentially normal range of motion of the left hand digits, with no gap between the thumb pad and fingers. The April 2017 examiner documented a 5 degree decrease in the thumb's interphalangeal extension. However, both examiners noted the presence of pain in the hand, and the October 2016 examiner indicated additional pain and lack of endurance with repetitive testing. Therefore, notwithstanding these examination findings, a minimum 10 percent rating for painful arthritis of the hand is warranted. Left LCL sprain with residual fibula fracture The Veteran is currently assigned a 10 percent rating for his left LCL sprain under 38 C.F.R. § 4.71, DC 5271. Under that code, a 10 percent rating is assigned for "moderate" limitation of motion, and a 20 percent rating is assigned for "marked" limitation of motion. The terms "moderate" and "marked" were not previously defined. However, the rating criteria were recently amended. Effective February 7, 2021, moderate is defined as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion and marked is defined as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in October 2016. On examination, he had normal range of motion of the ankle. With repetitive testing, dorsiflexion was reduced to 15 degrees and plantar flexion was reduced to 35 degrees. These findings are consistent with the currently assigned 10 percent rating. "Marked" limitation of motion, recently defined above, has not been shown. Because the Veteran's disability includes a residual fibula fracture, the Board has considered a rating under DC 5262, which addresses impairment of the tibia and fibula. However, that code states that the disability should be rated based on impairment of the knee or ankle, whichever results in the highest evaluation. The Veteran is already separately rated for a left knee disability, and therefore further consideration of DC 5262 is not warranted. Bilateral hearing loss The Veteran is currently assigned a 0 percent rating for his bilateral hearing loss. 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, DC 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. The Veteran underwent a VA examination in October 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 40 45 50 44 LEFT 35 30 55 50 43 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Under Table VI, this results in a hearing level of I in both ears, which corresponds to a 0 percent rating under Table VII. 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). Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted because the Veteran's audiological testing showed a noncompensable level of hearing loss. Regarding functional impairment, the Veteran reported during his VA examination that he had difficulty with hearing his wife or the television. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. In other words, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). There is no indication that his hearing loss results in any symptoms which fall outside the scope of the rating criteria for DC 6100. 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. The Veteran had service in Southwest Asia. Service connection may be granted on a presumptive basis if he exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, or (B) a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms. Even when a specific diagnosis has been rendered, service connection may still be warranted if that diagnosis is a MUCMI. According to Stewart v. Wilkie, 30 Vet. App. 383 (2018), an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive (emphasis added). Dizziness The Veteran competently and credibly reported experiencing symptoms of dizziness. An October 2016 VA examination found that no vestibular or ear condition was present to explain his symptoms. His VA treatment records do not otherwise show an etiology or pathophysiology for his dizziness. Under 38 C.F.R. § 4.87, DC 6204, occasional dizziness warrants a 10 percent rating. Therefore, the Veteran's dizziness has manifested to a compensable degree and is not attributable to a known clinical diagnosis. Therefore, service connection is warranted. Acquired psychiatric disorder The Veteran contends that he has a psychiatric disorder, including posttraumatic stress disorder (PTSD) related to his period of service. There are requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304 (f) that are similar, but nonetheless separate, from those for establishing entitlement to service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. §§ 3.304(f) and 4.125. First, the Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. An October 2016 VA examiner stated that the Veteran did not have PTSD, explaining that it was normal for him to have occasional distress secondary to reminders of a traumatic event. However, his symptoms did not cause any clinically significant impairment to warrant a diagnosis of PTSD or any other psychiatric disability. The Veteran's VA treatment records do not otherwise show a diagnosis of PTSD. Second, his VA records do show a current diagnosis of unspecified anxiety disorder. Service treatment records do not show any psychiatric complaints, treatment or diagnoses. However, in May 2017 and June 2017, the Veteran's treating VA psychologist and psychiatrist attributed his anxiety symptoms to stressful experiences in the Persian Gulf. The Board has considered the October 2016 VA examiner's statement that the Veteran did not have a psychiatric disability. However, resolving any doubt in the Veteran's favor, the Board concludes that he has an anxiety disorder which has been competently linked to his period of active service. Therefore, service connection is warranted. Type II diabetes mellitus The Veteran was diagnosed with type II diabetes in March 2013. Therefore, a current disability has been established. However, service treatment records are negative for any complaints, treatment, or diagnoses related to diabetes. The Veteran's December 1995 separation examination was within normal limits, and he denied a history of any relevant symptoms. Therefore, there is no relevant in-service incurrence of the condition. To the extent that the Veteran has asserted that diabetes is associated with his service in Southwest Asia, an October 2016 VA examiner stated that this was not the case. He explained that diabetes was caused by inhibition of the pancreas to properly regulate the release of insulin, and the inability to metabolize and utilize insulin and glucose. It is a condition that occurred widely in the general population and the etiology was related to lifestyle, weight gain and genetic predisposition. There is no competent medical opinion to refute this conclusion or otherwise link the Veteran's diabetes to service. Because the VA examiner explained the etiology and pathophysiology of the Veteran's diabetes, it is not a MUCMI as defined above. Therefore, service connection is not warranted. Migraine headaches The Veteran was diagnosed with migraine headaches during his October 2016 VA examination. Therefore, a current disability has been established. However, service treatment records are negative for any complaints, treatment, or diagnoses related to headaches. During his examination, the Veteran reported experiencing headaches since 1992, which he self-treated with other-the-counter medication. However, his December 1995 separation examination was within normal limits, and he denied a history of any frequent or severe headaches. He did report a positive history of other conditions, including painful joints and skin diseases. In other words, he was actively reported health concerns present, but denied the presence of any headaches. This strongly suggests that no headaches were present at that time. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board finds this absence of any complaints in service to be more credible than the Veteran's current assertions regarding headaches occurring while on active duty. Therefore, there is no relevant in-service incurrence of the condition. To the extent that the Veteran has asserted that migraines are associated with his service in Southwest Asia, the October 2016 VA examiner stated that this was not the case. He explained that the etiology of migraines was neurotransmitter disruption with inflammation and irritation of the trigeminal nerve. They can be triggered by hormones, certain foods, stress, light, sounds, and other factors. He concluded by noting that migraines occurred widely in the general population and were not related to the Veteran's service in Southwest Asia. There is no competent medical opinion to refute this conclusion or otherwise link the Veteran's migraines to service. Because the VA examiner explained the etiology and pathophysiology of the Veteran's migraines, they are not part of a MUCMI as defined above. Therefore, service connection is not warranted. Fatigue During an October 2016 VA examination, the Veteran reported that he gets easily fatigued. The examiner concluded that the Veteran did not have a diagnosis of chronic fatigue syndrome. Rather, he had been diagnosed with hypothyroidism in 2012, and this was the source of his fatigue. However, service treatment records are negative for any complaints, treatment, or diagnoses related to fatigue or a thyroid condition. The Veteran's December 1995 separation examination was within normal limits, and he denied a history of any relevant symptoms. Therefore, there is no relevant in-service incurrence of the condition. To the extent that the Veteran has asserted that hypothyroidism is associated with his service in Southwest Asia, the VA examiner stated that this was not the case. He explained that hypothyroidism was related to hormone abnormalities that have not been shown to be associated with exposures from service in the Persian Gulf. There is no competent medical opinion to refute this conclusion or otherwise link the Veteran's diabetes to service. Because the VA examiner explained the etiology and pathophysiology of the Veteran's diabetes, it is not a MUCMI as defined above. Therefore, service connection is not warranted. Bilateral eye disability An October 2016 VA examination indicated that the Veteran did not have a diagnosed eye disability. Rather, he had some loss of visual acuity due to refractive error. Generally, refractive error is not a disability for VA purposes. 38 C.F.R. § 3.303(c). Notably, his December 1995 separation examination also noted a visual acuity deficiency that was adequately corrected. Because the Veteran's eye problems are limited to refractive error, service connection is not warranted. High cholesterol Elevated cholesterol, by itself, is not a recognized disability for VA compensation purposes, but rather, a mere laboratory finding. See 61 Fed. Reg. 20,440-20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results rather than disabilities, and are therefore not appropriate entities for the rating schedule to address). Because a current disability has not been established, service connection is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.