Citation Nr: 21069592 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-57 835 DATE: November 18, 2021 ORDER A 10 percent rating, but no more, for right ankle lateral collateral ligament sprain, chronic/recurrent is granted. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran had active duty from June 1993 to June 1996. 2. A right ankle disability has been manifested by subjective complaints of pain and stiffness; objective findings include localized tenderness, disturbance of locomotion, interference with standing, but no limitation of motion, ankylosis, or os calcis. 3. Bilateral hearing loss has not been shown for VA purposes. 4. Tinnitus has been continuous since service. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no more, for right ankle lateral collateral ligament sprain, chronic/recurrent have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, 4.59, Diagnostic Code (DC) 5271 (2021). 2. Bilateral hearing loss was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 3. Tinnitus is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in July 2021. A copy of the transcript has been associated with the claims file. Increased Rating for a Right Ankle Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the amended version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran has been rated noncompensable under DC 5271 for a right ankle disability. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the appropriate diagnostic codes, a 10 percent rating is warranted when the objective medical evidence shows: moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limited motion of the ankle. ankylosis of the subastragalar or tarsal joint in good weight bearing position; or malunion of the os calcis or astragalus with moderate deformity. A 20 percent rating is warranted when the objective medical evidence shows: marked (less than five degrees dorsiflexion or less than 10 degrees plantar flexion) limited motion of the ankle. ankylosis of the subastragalar or tarsal joint in poor weight bearing position; or malunion of the os calcis or astragalus with marked deformity. Further, under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Turning to the medical evidence, there is no evidence of limitation of motion of the ankle. Specifically, in a December 2015 VA examination, the Veteran complained of stiffness. Upon examination, range of motion (ROM) was normal; however, there was objective evidence of localized tenderness. Further, in a May 2016 VA examination, he complained of pain on the outside of the ankle precipitated by weight bearing. Upon examination, ROM was normal. While there was no evidence of localized tenderness, the examiner wrote that the Veteran's ankle disability caused disturbance of locomotion and interference with standing. In addition, at the hearing, the Veteran testified that he had ankle pain every day and that the ankle popped and grinds on its own. Next, there is no evidence of ankylosis or os calcis. Specifically, in December 2015 and May 2016 VA examinations, the examiners marked that there was no evidence of ankylosis or os calcis. Based on the above, the medical evidence supports a 10 percent rating, but no more, for a right ankle disability. In this regard, the medical evidence showed no limitation of motion, ankylosis, or os calcis. However, there was objective evidence of localized tenderness of the right ankle, and evidence that the right ankle caused disturbance of locomotion and interference with standing. While clinical records showed right ankle pain, these records did not contradict the above findings. In granting a higher rating, the Board has considered the Veteran's lay statements regarding his symptoms as well as the evidence provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In sum, after a careful review of the evidence of record, a 10 percent rating, but no more, for a right ankle disability is granted. Service Connection for Hearing Loss Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 U.S.C. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss and tinnitus are recognized by VA as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, the Veteran does not have hearing loss for VA purposes. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 25 20 20 LEFT 10 10 25 25 25 In a December 2015 VA examination, the pure tone thresholds, in decibels, were reported as follows: Speech discrimination scores were 100 percent. Further, in a July 2019 clinical record, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 15 15 LEFT 15 10 25 35 35 Speech discrimination scores were 100 percent. As the Veteran's puretone threshold levels did not meet 40 decibels in any of the frequencies and were not above 26 decibels in three frequencies, he does not have hearing loss for VA purposes. Therefore, a current disability is not shown, and the first element of service connection has not been met. The Board has considered the Veteran's lay statements and testimony that this disorder began in service. He is competent to report symptoms because this requires only personal knowledge, as it comes to him through his senses; however, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Therefore, the appeal as to hearing loss is denied. Service Connection for Tinnitus As to tinnitus, it was first reported in a December 2015 VA examination. Reports of the Veteran's symptoms are also well-documented throughout VA treatment records. Thus, the first element of service connection a current diagnosis has been met. Next, the evidence supports a finding of in-service acoustic trauma. Specifically, the Veteran's military occupational specialty is listed as cavalry scout. Further, in a December 2015 VA examination, he reported noise exposure from firearms and mortars. The Veteran's statements are consistent with the nature of his service, during which he served as a calvary scout and his history of noise exposure is documented throughout VA treatment records. As there is no evidence of record which tends to contradict his testimony, the second element of service connection has been met. As to continuity, at the July 2021 hearing, the Veteran testified that he had experienced tinnitus since separation from service. While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The Board notes that in a December 2015 VA examination, the examiner determined that tinnitus was not incurred in service; however, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" diseases of tinnitus (38 C.F.R. § 3.309(a)) based on a finding of "continuous" symptoms of tinnitus since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of and tinnitus since service; therefore, tinnitus is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (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). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.