Citation Nr: 21012173 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-10 429A DATE: March 3, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial rating in excess of 10 percent for status post right wrist fracture with strain is denied. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA compensation purposes. 2. The Veteran’s right wrist disability is manifested by painful limitation of motion. It is not manifested by ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to an initial rating in excess of 10 percent for status post right wrist fracture with strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1981 to February 1982. He appeals a February 2015 rating decision denying entitlement to service connection for bilateral hearing loss and tinnitus, and a November 2013 rating decision granting entitlement to service connection for a right wrist disability with a noncompensable evaluation. During the pendency of the appeal, the Veteran was awarded entitlement to service connection for tinnitus and left ear hearing loss in addition to a 10 percent initial rating for his right wrist disability. As this represents a full grant of benefits regarding left ear hearing loss and tinnitus, those issues are no longer before the Board. Entitlement to service connection for right ear hearing loss and an initial rating in excess of 10 percent for a right wrist disability remain in appellate status. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), the nexus requirement is relaxed for claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Certain chronic diseases will be presumed related to service if continuity of the same symptomatology has existed since service, with no intervening cause. Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2012). Hearing loss and tinnitus are chronic diseases afforded the relaxed standard. Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). The disease must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from service to qualify under the presumption. 38 C.F.R. § 3.307(a). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for right ear hearing loss. The Veteran contends that he has hearing loss in his right ear that is attributable to active service. After review of the evidence, the Board finds that service connection is not warranted. Here, the Board notes that the Veteran’s service treatment records show normal hearing at entrance to service. However, no separation examination is contained in the claims file. Next, the Board finds that the Veteran has not had right ear hearing loss for VA purposes at any time during the pendency of the appeal. Service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was afforded a VA examination in October 2020 which showed hearing loss for VA purposes in the left ear only. Specifically, the examination report shows auditory thresholds in the right ear were 15 dB at 500 Hz, 10 dB at 1000 Hz, 10 dB at 2000 Hz, 15 dB at 3000 Hz, and 0 dB at 4000 Hz, with a speech discrimination score of 94 percent. With respect to his left ear, the examination report shows auditory thresholds of 10 dB at 500 Hz, 10 dB at 1000 Hz, 20 dB at 2000 Hz, 30 dB at 3000 Hz, and 40 dB at 4000 Hz, with a speech discrimination score of 94 percent. As such, the evidence shows that the Veteran does not have hearing loss for VA purposes in the right ear. Additional post-service treatment records ar silent for any evidence showing the Veteran has right ear hearing loss for VA compensation purposes. In summation, the evidence does not show that the Veteran has right ear hearing loss for VA compensation purposes. Accordingly, the claim is denied. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, “[w]here 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 required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 2. Entitlement to an initial rating in excess of 10 percent for status post right wrist fracture with strain. The Veteran argues that his right wrist disability warrants a higher rating. After review of the evidence, the Board finds that a disability rating in excess of 10 percent is not warranted. The Board notes that the Veteran’s right hand is dominant. The Veteran’s right wrist disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215. Under DC 5215, a 10 percent rating is warranted for limitation of motion of either dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. Higher ratings are available for the wrist under DC 5214 if ankylosis is shown. Here, the evidence does not show favorable or unfavorable ankylosis of the right wrist at any time during the period on appeal. As such, a higher rating under DC 5214 is not available. The Veteran was afforded a VA examination in July 2013 for his right wrist disability. Initial range of motion measurements were noted as palmar flexion limited to 20 degrees and dorsiflexion limited to 60 degrees. The Veteran reported additional functional loss during flare-ups. He reported that the disability caused him to limit use due to the pain, and sometimes there was tingling. There was no additional loss of range of motion following repetitive use. Functional loss was described as less movement than normal. There was no ankylosis found. The Veteran was also afforded a VA examination in April 2019 to evaluate the severity of his right wrist disability. Initial range of motion measurements were noted as palmar flexion limited to 70 degrees and dorsiflexion limited to 50 degrees. The Veteran reported additional functional loss during flare-ups. He reported that his disability caused him to drop things, and he had difficulty with repeated motions such as using a spray bottle, opening a jar, painting, hammering, and prolonged driving. During reported flare ups, the examiner noted palmar flexion limited to 60 degrees and dorsiflexion limited to 40 degrees. The examiner noted that pain and lack of endurance resulted in additional functional loss with repetitive use over time. The additional functional loss was measure as palmar flexion limited to 60 degrees and dorsiflexion limited to 40 degrees. As mentioned, no ankylosis was found. Additional post-service treatment records ar silent for any evidence showing the Veteran’s right wrist had ankylosis. Based on the evidence of record, the Board finds that an initial rating of 10 percent, but no higher, is warranted. This determination is made in recognition that the intent of the schedule is to recognize actually painful joints as entitled to the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this regard, although not showing limitation of motion to a compensable degree, the April 2019 examination did show painful motion in the right wrist with some limitation. To summarize, the Board finds that a 10 percent initial rating, but no higher, for the Veteran’s right wrist disability is warranted based on painful motion with some limitation. 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. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel