Citation Nr: 21014258 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-16 774 DATE: March 11, 2021 ORDER Entitlement to service connection for arthritis of the third (3rd) and fourth (4th) fingers of the right hand, claimed as a right-hand disability, is granted. An initial compensable rating for hearing loss of the left ear prior to March 18, 2020 is denied. A rating in excess of 10 percent for bilateral hearing loss since March 18, 2020 is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his currently diagnosed arthritis of the right-hand distal interphalangeal joints of the 3rd and 4th fingers is at least as likely as not related to his in-service injury to those fingers in service. 2. Prior to March 18, 2020, the Veteran was service-connected only for hearing loss in the left ear and it was manifested by hearing acuity of no worse than Level V. 3. Since March 18, 2020, the Veteran has been service-connected for bilateral hearing loss with hearing acuity of no worse than Level II in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis of the 3rd and 4th fingers of the right hand are met. 38 U.S.C. § 1101, 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an initial compensable rating for hearing loss of the left ear prior to March 18, 2020, are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for a rating in excess of 10 percent for bilateral hearing loss since March 18, 2020, are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to May 1971 with service in the Republic of Vietnam between July 1970 and May 1971. He subsequently had service in the Marine Corps Reserves. These matters come to the Board of Veterans’ Appeals (Board) from a November 2014 and March 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In March 2019 the Board remanded the appeal, which included the claims entitlement to service connection for disability of the (1) right hand (2) left eye, (3) ankles, (4) knees, and (5) right ear hearing loss. Also, the Board remanded the claim of entitlement to a compensable rating for left ear hearing loss. During remand status, a July 2020 rating decision granted service connection for traumatic optic neuropathy resulting in blindness, left eye (previously addressed as left eye injury and loss of sight) with an evaluation of 30 percent effective October 31, 2013; special monthly compensation (SMC) based on loss of use of vision of the left eye effective October 31, 2013; and service connection for right ear hearing loss (effective March 18, 2020) along with a 10 percent rating for bilateral hearing loss disability from March 18, 2020. As to the left eye vision and right ear hearing loss claims, the July 2020 rating decision represent a full grant of the benefit sought on appeal as to those matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). As such, there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). However, the claim for increase for hearing loss remains in appellate status as, although a higher rating was assigned, it is not a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (finding a veteran is generally presumed to seek the maximum benefit allowed by law and regulation). The Board acknowledges that a July 2020 Supplemental Statement of the Case (SSOC) added an issue: entitlement to an earlier effective date for service connection of right ear hearing loss prior to March 18, 2020. The Board does not have jurisdiction of this matter. An appeal consists of a timely Notice of Disagreement (NOD) submitted in accordance with the provisions of § 19.21 and either § 19.52(a) or § 20.501(a) of Title 38 of the Code of Federal Regulations, as applicable and, after a Statement of the Case (SOC) has been furnished, a timely Substantive Appeal. 38 C.F.R. § 19.20. Here, VA has not received a NOD on the July 2020 rating decision as to the effective date of the grant of service connection for right ear hearing loss. Issuance of an SSOC does not vest the Board with jurisdiction. Indeed, the agency of original jurisdiction (AOJ) is only to issue an SSOC on material changes in or additions to the information included in the SOC and may not be used to announce decisions by the AOJ on issues not previously addressed in the SOC. See 38 C.F.R. § 19.31. The Board lacks jurisdiction over this matter---there is simply no claim or controversy and no appeal. Lastly, during remand status, following issuance of the July 2020 SSOC addressing the claims for service connection for the knees and ankles, the Veteran opted those claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a September 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the August 2020 decision, which subsumes the July 2020 SSOC inclusive of the July 2020 rating decision with notice letter of August 2020. Therefore, the July 2020 SSOC is the decision on appeal for the claims of service connection for the knees and ankles. By opting into the AMA, the Veteran withdrew his appeal of those matters in the legacy appeal system. A December 2020 Board letter notified the Veteran that these claims were placed on the AMA direct review docket. The issues will be addressed in a separate Board decision (Docket number 200917-109570). 1. Entitlement to service connection for right-hand disability (angulation and arthritis of the 3rd and 4th fingers). The Veteran contends that he had right hand disability cause by or the result of in-service injury to his right-hand’s two middle fingers while serving in Vietnam. Specifically, the Veteran argues that his fingers were injured while he was loading rounds into a machine gun, noting that two fingers of his right hand when they were caught in an ammunition belt. See VA Form 21-526 (December 2013). Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Board concludes that, resolving reasonable doubt in the Veteran’s favor, his currently diagnosed arthritis of the distal interphalangeal joints of the 3rd and 4th fingers of the right hand is at least as likely as not related to his in-service injury to those fingers in service. 38 U.S.C. § 1101, 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d). First, the evidence of record is sufficient to establish that the Veteran sustained an in-service injury to his right-hand’s two middle fingers while serving in Vietnam. The Veteran’s service personnel records (SPRs) reflect that he served in Vietnam during the Vietnam War and was awarded the Combat Action Ribbon. His DD 214 reflects that his awards included the Combat Action Ribbon, Vietnam Service Medal with one star, the Vietnam Campaign Medal with device, and the Rifle Marksman Badge. His SPRs show that the Veteran had been a machine gunner from August 1970 to February 1971 in Vietnam. The Veteran is a combat veteran. In such circumstances as here where the Veteran engaged in combat with the enemy, and it is claimed that an injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Second, the evidence of record establishes the presence of current disability of the right-hand’s 3rd and 4th fingers. Indeed, treatment records dated in 2014 reflect arthritis of the distal interphalangeal (DIP) joints of the right 3rd and 4th fingers. Also, an October 2019 VA examination report shows a diagnosis for arthritis of the distal interphalangeal joints of the 3rd and 4th fingers of the right hand. Third, resolving reasonable doubt in the Veteran’s favor, his currently diagnosed arthritis of the right-hand distal interphalangeal joints of the 3rd and 4th fingers is at least as likely as not related to his in-service injury to those fingers in service. It is noted that even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Here, although the Veteran’s STRs do not document the presence of any right-hand disability or abnormal pathology, this is not fatal to a claim where there is competent, credible evidence linking a disability diagnosed after service to an in-service injury. In this case, the Veteran has consistently reported a history of symptoms of this 3rd and 4th fingers since the in-service injury. For example, a November 2013 treatment record shows a history of stiff and painful symptoms of the two fingers since an old injury in the military; a December 2013 treatment record shows a history of right-hand swelling and pain since a right-hand injury from feeding a machine gun in service; an April 2014 treatment note shows history of right-hand injury in Vietnam and symptoms since then, which recently became more pronounced (painful), assessed as traumatic arthritis of the distal interphalangeal (DIP) joints of the 3rd and 4th fingers of the right hand; a treatment record dated in 2014 shows complains for trigger finger (i.e., a jerking movement of the finger caused by the sticking of a tendon). Further, the Veteran’s sworn testimony reflects that his 3rd and 4th fingers had hurt since his right hand had been caught, during combat, in the ammunition belt of a machine gun and twisted, although it did not fracture. Moreover, an October 2019 VA examination report reflects that the 3rd and 4th finger, right-hand, findings were traumatic in origin and had its onset in 1969, which is consistent with the Veteran reported having injured the fingers of his right-hand during combat in 1969. Although the December 2019 VA examination report also includes a negative medical opinion, the Board finds that it has no probative value because it relied on the absence of documented findings in service and for many years after service, without any explanation as to why this is dispositive. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Also, the opinion ignored the Veteran’s competent, credible history of symptoms dating since the in-service injury and that the absence of documented in-service findings is consistent with the nature of the Veteran’s combat service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate.”). The Board assigns greater probative value to the Veteran’s statements, both competent and credible, concerning onset of symptoms and continuity of symptomatology. Resolving reasonable doubt in the Veteran’s favor, his currently diagnosed arthritis of the right-hand distal interphalangeal joints of the 3rd and 4th fingers is at least as likely as not related to his in-service injury to those fingers in service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, service connection for arthritis of the right-hand distal interphalangeal joints of the 3rd and 4th fingers is granted. 2. Entitlement to an initial compensable rating for hearing loss of the left ear prior to March 18, 2020. 3. Entitlement to a rating in excess of 10 percent for bilateral hearing loss since March 18, 2020. A November 2014 rating granted service connection for left ear hearing loss and assigned an initial noncompensable rating, effective December 11, 2013. This appeal arises from the Veteran’s disagreement with the initial disability rating assigned. During the appeal period, a July 2020 rating decision granted service connection for hearing loss of the right ear effective March 18, 2020. For hearing loss disability, it retained a noncompensable rating prior to March 18, 2020, for left ear hearing loss and assigned a rating of 10 percent from March 18, 2020, for bilateral hearing loss disability. The Veteran contends that he is entitled to a higher rating because he has poor hearing acuity of the right and left ears. In the Veteran’s September 2015 VA Form 21-0958, Notice of Disagreement (NOD), he reported that he could not hear anything in his left ear. 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, Diagnostic Code 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. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, as it the case here prior to March 18, 2020, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). A September 2014, VA examination reveals that the Veteran reported he had “difficulty hearing someone if they are not facing him.” 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [September 2014] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 25 20 20 96% LEFT 25 15 80 85 51 72% Applying the results to Table VI, the findings yield a numeric designation of Level I in the nonservice-connected right ear and Level V in the service-connected left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A December 2015, VA examination reveals that the Veteran reported he had “difficulty hearing people on left side and localization..” 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [December 2015] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 20 15 15 15 100% LEFT 30 30 95 100 64 72% Applying the results to Table VI, the findings yield a numeric designation of Level I in the nonservice-connected right ear and Level V in the service-connected left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A March 2020, VA examination reveals that the Veteran reported he had “tremendous difficulty understanding speech especially if he cannot see the person speaking” and he “must use speakerphone in order to use a telephone” and friends/ family complain about his loud television volume. The Veteran stated that “he would have worked longer, but the pilots would get mad because of not hearing them while he was transporting them to their planes.” 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: [March 2020] HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 20 40 25 84% LEFT 30 30 95 100 64 68% Applying the results to Table VI, the findings yield a numeric designation of Level II in the service-connected right ear and Level V in the service-connected left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating prior to March 18, 2020, for left ear hearing loss disability and a rating in excess of 10 percent from March 18, 2020, for bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his difficulty hearing others and the need for amplification (e.g. television volume, speaker phone). The Veteran is competent to report difficulty with his hearing; however, 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). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss prior to March 18, 2020, and in excess of 10 percent for bilateral hearing loss from March 18, 2020. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.