Citation Nr: 21066962 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-06 317 DATE: November 3, 2021 ORDER Entitlement to a compensable initial disability rating for residuals of a fractured left ring finger is denied. REMANDED Entitlement to service connection for a left lower extremity neurological disability is remanded. Entitlement to service connection for a right lower extremity neurological disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran does not have ankylosis of the ring finger and the impairment does not result in effective amputation. CONCLUSION OF LAW The criteria for an initial compensable rating for right ring finger impairment have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1971 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which has been associated with the record. The matter was remanded by the Board in a December 2018 decision for additional development and has returned for further appellate review. 1. Entitlement to a compensable initial disability rating for residuals of a fractured left ring finger The Veteran seeks a compensable rating for his service-connected residuals of a fractured left ring finger. VA regulations provide a maximum noncompensable rating for limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Veteran received VA examinations in July 2015 and December 2019. Both examiners noted that the Veteran experiences pain and involuntary contractions of the left ring finger which results in functional impairment. Although the July 2015 examiner noted that the Veteran did not report flare-ups of the left ring finger at the time, the Veteran did report flare-ups during his December 2019 VA examination. The Board observes that the Veteran is already in receipt of the highest schedular rating for limitation of motion of the ring finger, however; thus, the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45) pertaining to functional loss are not applicable in this instance. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). For the same reason, the Board finds there is no prejudice in any VA examination failing to comply with § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). VA regulations provide higher ratings for amputation and ankylosis of the ring finger and hand. However, the record does not reveal any findings of ankylosis. Both the July 2015 and December 2019 examiners determined that the Veteran's impairment is not analogous to amputation. The Board finds the record also does not suggest any impairment beyond that contemplated by the current ratings; notably, the symptoms reported by the Veteran are associated with the limitation of motion considered in the current rating. Thus, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left and right lower extremity neurological disabilities is remanded. Pursuant to the December 2018 Board remand decision, the Veteran received a VA examination regarding the nature and etiology of his claimed bilateral lower extremity neurological disability in December 2019. The examiner opined that the Veteran did not have any present neurological diagnosis affecting the bilateral lower extremities. However, the examiner failed to address VA treatment record notations discussing the Veteran experiencing radiculopathy and pain in his legs. Accordingly, the examination is inadequate for determining entitlement to service connection for bilateral lower extremity neurological disabilities and remand is warranted to obtain a new medical opinion. 2. Entitlement to service connection for bilateral hearing loss is remanded. Pursuant to the December 2018 Board remand decision, the Veteran received a VA examination regarding the nature and etiology of his claimed bilateral hearing loss in October 2020. The examiner opined that the Veteran's hearing loss was less likely than not caused by or a result of an event in military service. However, the Board observes that the examiner failed to address the Veteran's assertions regarding his lack of access to hearing protection during service as opposed to being provided with hearing protection in post-military activities, as was discussed in the November 2018 hearing before the undersigned VLJ. Accordingly, the Board finds this examination to be inadequate for determining entitlement to service connection and remand is warranted to obtain a new medical opinion. The matters are REMANDED for the following action: 1. Afford the Veteran an examination with an examiner(s) of appropriate expertise to determine the nature and etiology of the Veteran's claimed bilateral lower extremity neurological disabilities and bilateral hearing loss. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Regarding the Veteran's claimed bilateral lower extremity disability, the examiner should specifically discuss the Veteran's lay testimony and VA treatment records regarding pain and radiculopathy. (Continued on next page) Regarding the Veteran's claimed bilateral hearing loss, the examiner should specifically address the Veteran's access to adequate hearing protection both while active duty and during post-service recreational activities. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.