Citation Nr: 21014444 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-31 182 DATE: March 12, 2021 ORDER Service connection for left ear hearing loss is denied. A 10 percent rating, but no higher, for residuals of a right hand 5th metacarpal intra-articular fracture, with limitation of motion and reduced grip strength, is granted. A separate 10 percent rating, but no higher, for mild incomplete paralysis of the right ulnar nerve associated with the right hand/finger fracture disability is granted. FINDINGS OF FACT 1. The Veteran does not have a left ear hearing loss disability for VA compensation purposes. 2. For the entire rating period on appeal, the Veteran’s right hand/finger disability was shown to be manifested by pain, limitation of motion, and reduced grip strength, especially during periods of flare-ups and following repetitive use. 3. For the entire rating period on appeal, the Veteran’s right hand/finger disability has been manifested by mild incomplete paralysis of his ulnar nerve manifesting in subjective numbness and tingling of the 4th and 5th fingers of his right hand. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for a rating of 10 percent, but no higher, for residuals of a right hand 5th metacarpal intra-articular fracture with limitation of motion and reduced grip strength are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5230, 5227. 3. The criteria for a separate 10 percent rating, but no higher, for mild incomplete paralysis of the right ulnar nerve are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8716. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to June 1992, and from February 1996 to July 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded by the Board in August 2018. While in remand status, the RO awarded service connection for right ear hearing loss and tinnitus. See September 2020 rating decision. As such, those issues have been granted in full and will not be addressed by the Board herein. Service Connection for left ear hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that “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); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that he has hearing loss that is related to in-service acoustic trauma. As noted above, service connection for right ear hearing loss has already been awarded. Impaired hearing is considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Upon review of all the evidence of record, the Board finds that the Veteran does not have a left ear hearing loss disability for VA compensation purposes. In a June 2013 VA audiological evaluation, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 20, 20, 25, and 25, respectively. A speech discrimination score of 96 percent was noted in the left ear. In an August 2020 VA audiological evaluation, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 20, 25, 25, and 30, respectively. A speech discrimination score of 100 percent was noted in the left ear. The remaining evidence of record also do not demonstrate left ear hearing loss as required by 38 C.F.R. § 3.385. Because auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz were not 40 decibels or greater, and the thresholds for at least three of these frequencies were not 26 or greater, the criteria to establish a current hearing loss disability in the left ear as required by 38 C.F.R. § 3.385 are not met. As the evidence does not show that the Veteran’s left ear hearing loss is to a disabling degree according to 38 C.F.R. § 3.385, the weight of the evidence demonstrates that the Veteran’s left ear hearing loss has not met the threshold to establish current hearing loss “disability,” and the claim must be denied. The Court has held that “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, 3 Vet. App. 225; see also Rabideau, 2 Vet. App. 143 -44. Because the preponderance of the evidence is against the claim for service connection for left ear hearing loss, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased rating for right hand/finger disability The Veteran is currently in receipt of a noncompensable rating for a right hand, 5th metacarpal intra-articular fracture disability. The Veteran essentially contends that his disability is manifested by symptomatology more nearly approximating a rating in excess of the current noncompensable (zero percent) rating assigned under 38 C.F.R. § 4.71a , Diagnostic Code 5230. Under Diagnostic Code 5230, a maximum zero percent rating is assigned for any limitation of motion of the ring or little finger (whether on the major (dominant) or minor (non-dominant) hand). 38 C.F.R. § 4.71a. A maximum zero percent rating is assigned under Diagnostic Code 5227 for favorable or unfavorable ankylosis of the ring or little finger (whether on the major (dominant) or minor (non-dominant) hand). 38 C.F.R. § 4.71a, Diagnostic Code 5227. A Note to Diagnostic Code 5227 provides that evaluation as amputation should be considered and whether an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand. In order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis. See Note (3)(i) preceding 38 C.F.R. § 4.71a , Diagnostic Code 5216, unfavorable ankylosis of five digits of one hand. In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and proximal interphalangeal joints either in extension or full flexion or with rotation or angulation of a bone. 38 C.F.R. § 4.71a, Diagnostic Code 5216. Note (3)(ii) explains that if both the metacarpophalangeal and proximal interphalangeal joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position. Note (3)(iii) indicates that if only the metacarpophalangeal or proximal interphalangeal joints were ankylosed and there was a gap of more than 2 inches (5.1 cm.) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, multiple involvements of the metacarpal and carpal joints of the upper extremities are considered groups of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45. VA must consider “functional loss” of a musculoskeletal disability separately from consideration under the diagnostic codes; “functional loss” may occur as a result of weakness, fatigability, incoordination, or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence includes a June 2013 VA hand examination report where the Veteran reported having flare-ups 4 times a week. During those times, he described an inability to sleep due to pain. He also reported symptoms of decreased strength and numbness of the 4th and 5th fingers. Although specific range of motion testing for each finger was not conducted, the examiner noted that the Veteran had less movement than normal, weakened movement, excess fatiguability, incoordination, pain on movement, and pain on palpation in the little finger. The evidence also includes a January 2017 VA examination. At that time, the Veteran reported pain in the dorsum of the right hand, along the ring finger metacarpal, especially with wrist extension (such as when lifting weights). Upon repetitive use (such as with typing), the Veteran described throbbing pain, tightness, and aching, with variable numbness and tingling in the small and ring fingers. Although range of motion testing was normal in the right hand, the Veteran was found to have tenderness to the dorsum CMC joint and right small finger. Estimations were not provided as to the Veteran’s decreased range of motion during a flare-up or after repetitive use testing. Ankylosis was not indicated for any finger joint. The Veteran was afforded another VA hand examination in September 2020. During the evaluation, the Veteran indicated that he had daily pain. After performing computer work, he experienced increased pain and throbbing. He further reported having constant numbness in the 4th and 5th fingers. Moreover, when lifting heavy objects, the Veteran indicated that his pain became more severe with total numbness and “no feeling or control” of the items grasped. The Veteran had some reduced range of motion in the right hand fingers (to include during flare-ups), but no gap between the thumb and fingers. The examiner further noted that the Veteran had numbness of the right hand with “consistent paresthesia of the ulnar side of hand.” Hand grip strength was reduced to a 3/5 (with 5 being normal strength). The Veteran was also noted to use a brace on the right hand. As discussed above, a noncompensable rating is the maximum rating under Diagnostic Code 5230. A noncompensable rating is also the maximum rating under Diagnostic Code 5227 for ankylosis of the ring or little finger. Thus, no increased schedular evaluation is warranted under these diagnostic codes. Nonetheless, despite the lack of evidence of extreme unfavorable ankylosis or amputation of the right 5th finger, the Board finds that the criteria for a rating of 10 percent are approximated pursuant to the DeLuca criteria, based upon the Veteran’s limitation of motion and pain on motion during flare-ups. Further, the Veteran has complained of increased pain with decreased grip strength of the hand following repetitive use. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As such, the Board finds that a 10 percent rating is warranted for the right hand/finger disability manifested by pain, limitation of motion, and reduced grip strength, especially during periods of flare-ups and following repetitive use. The Board further notes that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, the Veteran’s right hand/finger disability is currently rated as 10 percent disabling (granted herein) for pain, limitation of motion of some fingers, and reduced grip strength, to include following repetitive use and during flare-ups. However, the Veteran has the additional symptom of numbness, tingling, and parasthesia of his right hand, including his 4th and 5th fingers. Although a June 2013 VA peripheral nerves examination found no objective evidence of a neurological disorder, the examiner indicated that the Veteran had subjective “mild” symptoms of paresthesias and numbness. See also September 2020 VA examination report (noting consistent paresthesia of ulnar side of hand). Diagnostic Code 8716 addresses neuralgia of the ulnar nerve. Paralysis of the ulnar nerve with “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened warrants a 50 percent rating for the minor hand (here, left). A 30 percent rating is warranted for severe incomplete paralysis of the ulnar nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the ulnar nerve. And a 10 percent rating is warranted for mild incomplete paralysis of the ulnar nerve. Under Diseases of the Peripheral Nerves, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. Upon review of the evidence of record, the Board finds that a separate 10 percent rating for mild incomplete paralysis of the ulnar nerve, with subjective numbness of the 4th and 5th fingers of the right hand, is warranted for the entire period on appeal. Based on the combined rating table, the Veteran’s limitation of motion ratings (10, percent) and nerve rating (10 percent) would warrant a combined rating of 20 percent for his right hand disability. This is below the 60 percent rating for loss of use/amputation of the right hand or amputation of the little finger (with more than one-half of the bine lost). As such, the ratings are not limited by the Amputation Rule. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.