Citation Nr: 21074760 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-27 352 DATE: December 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent for a left thumb disability is denied. FINDINGS OF FACT 1. The Veteran does not currently have a current bilateral hearing loss disability for VA purposes. 2. The most probative evidence of record shows that the Veteran experiences painful range of motion of the left thumb. There is no gap of two inches or more between the thumb and the fingers. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to a rating in excess of 10 percent for the left thumb disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 2002 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for bilateral hearing loss For VA purposes, a hearing impairment qualifies as a current hearing loss disability if the auditory threshold in any of the 500, 1000, 2000, 3000, and 4000 hertz (Hz) frequencies is 40 decibels (dB) or greater, or the auditory thresholds for at least three of the 500, 1000, 2000, 3000, and 4000 Hz frequencies are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; Godfrey v. Derwinski, 2 Vet. App. 52, 356 (1992). The auditory threshold below 500 Hz or above 4000 Hz fall outside the scope of evidence considered for establishing a current hearing loss disability under § 3.385. The Veterans Court (CAVC) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). At minimum, the Veteran must have sufficient hearing loss presently to have an actual current disability. "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of present disability there can be no valid claim." Degmetich v. Brown, 104 F.3d 1328 (1997). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). See also McClain v. Nicholson, 21 Vet. App. 319 (2007). After having considered all of the evidence of record, the Board finds that the evidence does not establish the presence of a currently ratable hearing loss disability by VA standards at any time during the pendency of this appeal. Indeed, the VA examination of record from August 2021 shows there was speech discrimination of 100 percent in each ear. Moreover, decibel (dB) losses in the relevant puretone threshold frequencies of 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz were 5, 5, 15, 20, and 15 dB, respectively, in the left ear, and 10, 10, 10, 25, and 20 in the right ear. Average puretone threshold in the left ear was 16 and 15 in the right ear. The Board acknowledges the Veteran's lay statements regarding his hearing loss. Indeed, the Board concedes that the August 2021 VA examination report documents sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies. As noted above, however, the auditory threshold below 500 Hz or above 4000 Hz fall outside the scope of evidence considered for establishing a current hearing loss disability under § 3.385. Put differently, although the evidence establishes that the Veteran does experience some level of hearing loss, such loss does not rise to the level to be considered a "disability" for VA purposes. As there is no competent and credible confirmation of a currently ratable hearing loss disability as defined by § 3.385, service connection for bilateral hearing loss disability must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). 2. Entitlement to a rating in excess of 10 percent for a left thumb disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. "Staged" ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Initially, the Board notes that the Veteran's service-connected left thumb disability is manifested by pain and limitation of motion. As such, the Board finds that Diagnostic Code 5228 is the most appropriate Diagnostic Code for consideration. Under Diagnostic Code 5228, for limitation of motion of the thumb, with a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a 20 percent rating is warranted for either a major or minor extremity. With a gap of one to two inches (2.5 to 5.1 cm), with the thumb pad attempting to oppose the fingers, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Veteran believes he is entitled to a higher rating for his left thumb disability. He currently has a 10 percent rating for his left thumb disability. In order to warrant a higher rating, the evidence must show a gap of more than two inches between his thumb and fingers. The Veteran underwent a VA examination of his left thumb in March 2013. The Veteran reported that he dislocated his left thumb in service. He reported that he experienced flare-ups that resulted in pain with heavy grasping. There was no limitation of motion or painful motion of the thumb and no gap between the pad of the thumb and the other fingers. The examiner diagnosed the Veteran with collateral ligament tear of the left thumb. The Veteran was afforded an additional VA examination in October 2020. At that time, he reported flare-ups a few times a day which resulted in loss of movement and strength. On examination, the Veteran exhibited a normal range of motion of the left thumb with no gap between the pad of the thumb and his fingers. There was no pain noted on examination. The examiner diagnosed the Veteran with a chronic collateral ligament strain of the left thumb. The Veteran was most recently examined in September 2021. He reported constant aching pain of the left thumb with sharp pain when lifting or using it. The Veteran also reported issues while typing. The Veteran demonstrated full range of motion of the left thumb with no gap between the pad of the thumb and his fingers. The examiner diagnosed the Veteran with a collateral ligament tear of the left thumb. Based on the results of these examinations and other relevant evidence in the file, the Board finds that a higher rating is not warranted. The Veteran's symptoms do not warrant a compensable rating under DC 5228 based on his remaining motion; however, a compensable rating, 10 percent rating, is warranted for painful motion per 38 C.F.R. § 4.59. The evidence does not support the notion that his painful motion is so severe as to warrant a higher rating. Mere pain, alone, does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Ultimately, the clinical records do not support the notion that Veteran's limitation, even with pain, causes a gap of more than two inches between the thumb pad and the fingers with the thumb attempting to oppose the fingers. Furthermore, although the Veteran's thumb is painful, it has not been shown to impact the overall function of the Veteran's hand. The Board acknowledges the Veteran's lay statements and his sincere belief that a higher rating is warranted. Indeed, the Board does not dispute that the Veteran experiences pain and painful motion in his left thumb. However, even when accepting these statements as competent and credible, the Board finds that a higher rating is not warranted. Thus, the Veteran's claim for an increased rating for his service-connected left thumb disability must be denied. MARTHA L. TIERNEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.