Citation Nr: 21015254 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-50 434 DATE: March 17, 2021 ORDER Entitlement to a 10 percent evaluation, but no higher, for right hand fracture is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s right-hand fracture residuals manifested in painful motion, limitation of motion, loss of grip; notwithstanding the disability did not rise to the level of loss of range of motion of a gap of two inches between the thumb and little finger during any period. 2. The Veteran does not have bilateral hearing loss for VA purposes. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for entitlement to a 10 percent evaluation, but no higher, for residuals of right-hand fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5228. 2. The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 11100, 1112, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.384. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 2000 to January 2001, from March 2003 to March 2005, February2007, and from January 2010 to May 2010, with National Guard Service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019 a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. 1. Entitlement to a compensable evaluation for a right-hand fracture The Veteran’s right-hand fracture is evaluated under Diagnostic Codes 5228-5010. He contends he should be awarded a compensable evaluation. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. Hyphenated codes are intended to show that the Veteran’s service-connected disability is rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). The Veteran seeks an increased rating for his right-hand condition. The condition is rated noncompensable under 38 C.F.R. § 4.71a , Diagnostic Code 5010-5228. The Board finds for the entire period on appeal a 10 percent rating is warranted for the Veteran’s right-hand fracture residuals. Under the General Rating Formula, under Diagnostic Code 5228, a noncompensable disability evaluation is assigned for limitation of motion of the thumb with a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent disability evaluation is assigned for a gap of one to two inches (2.5 to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent disability evaluation is assigned for a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. In determining disability ratings, Diagnostic Code 5228 makes no differentiation between the major and minor hands. Diagnostic Code 5229 provides for limitation of motion for the index or long finger. A noncompensable (0 percent) rating is warranted for a gap of less than one inch (2.5 centimeter) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A 10 percent disability rating is warranted for a gap of one-inch (2.5) centimeter or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Id. Diagnostic Code 5230 addresses limitation of motion of the ring or little finger. Under Diagnostic Code 5230, a noncompensable (0 percent) rating is assigned for limited ring or little finger motion in either the major (dominant) or minor hand. Id. For the index, long, ring, and little fingers (digits II, III, IV, and V), the metacarpophalangeal joint (MCP) has a range of motion of zero to 90 degrees of flexion, the proximal interphalangeal joint (PIP) has a range of motion of zero to 100 degrees of flexion, and the distal interphalangeal joint (DIP) has a range of motion of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230, Note (1). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). The rating criteria pertaining to traumatic arthritis was revised effective February 7, 2021. Prior to February 7, 2021, DC 5010 was rated as traumatic arthritis, and provided for an evaluation of an affected joint under DC 5003, for degenerative arthritis. Degenerative arthritis confirmed by x-ray provides for evaluation based on limitation of motion of the affected joint, with a minimum 10 percent rating for each major joint or group of joints. 38 C.F.R. § 4.71a , DCs 5003, 5010. (in effect prior to February 7, 2021). Under the revised version of DC 5010, traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. There is sufficient data to rate the disability under the revised criteria under DC 5010. After reviewing all the lay and medical evidence, the Board has resolved reasonable doubt in the Veteran’s favor in finding for the entire period on appeal the right hand disability has approximated a compensable 10 percent disability rating due to painful, noncompensable limitation of motion of the fingers, to include due to flares ups of pain. In June 2015, he underwent an examination. He reported pain when writing or working with his right hand for an extended period of time. He described occasional arthritis type pain. He did not have flare ups. On range of motion testing, there was no limitation of motion or evidence of painful motion for any finger or thumb. He was able to perform repetitive-use testing with three repetitions, and there was no additional limitation of motion for any finger post-test. There was no gap between the thumb and the fingers post-test. There was no gap between any fingertips and the proximal transverse crease of the palm when attempting to touch the palm with the fingertips post-test. There was not a limitation of extension for the index finger or long finger post-test. He had no functional loss or functional impairment of any of the fingers or thumbs. There was no pain on palpation, and muscle strength testing was normal. He did not have ankylosis. The examiner stated there is no pathology of the right hand. In a January 2020 statement, the Veteran’s representative argued the Veteran should be afforded x-rays to determine the severity of his right-hand disability. In a December 2019 statement from Dr. M. S., it was noted the Veteran has joint swelling and arthralgias in his hands. The Veteran has been awarded a separate evaluation for bilateral hand swelling. In June 2020, x-rays were taken that revealed mild irregularity of the shaft of the fifth metacarpal. In July 2020, the Veteran underwent another examination. The examiner stated his condition had worsened. The Veteran reported right hand pain and tightness, as well as right little finger numbness at times. He was taking Tylenol as needed. X-rays showed mild irregularity of the shaft of the fifth metacarpal. He reported having flare-ups with weather changes. He reported functional loss as difficulty with gripping and with fine motor skills. Range of motion testing revealed right hand index finger extension for MCP, PIP and DIP to 0, and flexion to 60 for MCP, 75 for PIP, and 60 for DIP. Long Finger extension for MCP, PIP and DIP was to 0, and flexion was 60 for MCP< 70 for PIP, and 65 for DIP. Ring finger measured extension to 0 for MCP, PIP and DIP. Flexion was to 55 for MCP, 70 for PIP, and 40 for DIP. Little finger extension was to 0 for MCP, PIP and DIP. Flexion was to 60 for MCP, 70 for PIP and 55 for DIP. Thumb had extension to 0 for MCP and IP, and flexion was to 60 for MCP and IP. There was a 1.5cm gap between the pad of the thumb and fingers. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. He had pain on finger flexion. There was no evidence of pain with use of the hand or of objective evidence of tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss of function or range of motion after three repetitions. He was not examined immediately after repetitive use over time. The examiner determined that pain and weakness significantly limit functional ability with repeated use over time. In terms of range of motion there was no change in extension. As for Flexion: Index Finger MCP – 60, PIP – 75, DIP 0. Long Finger MCP- 60, PIP- 75, and DIP – 65. Ring Finger MCP- 55, PIP- 70, and DIP – 40. Little Finger, MCP- 60, PIP- 70, DIP- 55. Thumb MCP and IP – 60. The gap between the pad of the thumb and fingers was to 1.5cm. He was not examined during a flare up. Pain and weakness contributed to functional loss with a flare up. In terms of range of motion, there was no change in flexion or extension. There was full muscle strength, and he did not have ankylosis of any digits of the hand. Functional impact was described as the Veteran having difficulty with fine motor skills, typing, and gripping. VA hand examinations were provided in 2015 and 2020. Even though the 2015 examination showed normal strength and dexterity of the right hand with normal motion of all the fingers and no evidence of painful motion, no gap between the fingers and proximal transverse crease of the hand on maximal flexion, and no gap between the thumb pad and the fingers, including on repetitive use, the Veteran endorsed pain when writing or working for an extended period of time. He also described occasional arthritis type of pain. At the 2020 examination, the Veteran had painful limitation of motion of the right thumb, index, middle, ring, and little fingers with motion of the MCP, PIP, DIP, and IP joint limited to 0 degrees of extension and 50 degrees of flexion in all the fingers, to include due to pain, stiffness, and lack of endurance from flare ups, and there was a gap between the thumb and fingers of 1.5cm. The examiner indicated pain and weakness contribute to functional loss with a flare up and repeated use over time, and in terms of range of motion, there was no noted change in flexion or extension. Given evidence of painful, noncompensable limitation of motion throughout the course of the appeal, to include due to flare ups of pain, stiffness, and lack of endurance, the Board has resolved reasonable doubt in the Veteran’s favor in finding that a compensable 10 percent rating is approximated under Diagnostic Code 5228 for the right hand disability for the entire period on appeal. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5010-5228. Further, there is no possibility for a higher evaluation under the former or revised 5010. Under the revised, arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint, of which the Veteran is evaluated under the affected joint criteria of 5228 with a 10 percent. Were he to be evaluated under the former criteria of 5010, degenerative arthritis confirmed by x-ray provides for evaluation based on limitation of motion of the affected joint, with a minimum 10 percent rating for each major joint or group of joints, and here as is stated in this decision, the Veteran is in receipt of a 10 percent evaluation, and again under 5228 his disability does not warrant higher than a 10 percent. The Board has considered whether separate or alternative but higher disability rating is warranted for right hand disability. A higher 20 percent rating is not warranted for limitation of motion of the thumb, as the evidence does not show a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers (Diagnostic Code 5228). A separate compensable rating is not warranted for limitation of motion of the index or middle finger as, the evidence does not reflect a gap of one inch (2.5 cm) or more between the index or long fingertips and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees, to include due functional loss of motion during flare ups (Diagnostic Code 5229). Moreover, a higher rating is not possible for limitation of motion of the right ring or little fingers, as the rating schedule (Diagnostic Code 5230) provides only a zero percent (noncompensable) rating for limitation of motion of a ring or little finger. 38 C.F.R. §§ 4.71a. The evidence of record does not reflect either favorable or unfavorable ankylosis of the right thumb, index, middle, ring or little fingers. Nor has the Veteran alleged ankylosis in any finger or thumb. As such, Diagnostic Codes 5216 through 5227 do not apply. 38 C.F.R. § 4.71a. Next, the evidence does not reflect that any right finger disabilities have resulted in amputation of a digit. Diagnostic Codes 5126 through 5156 provide ratings based on amputation of individual and multiple digits of the hand. The treatment records do not show any right thumb, index, middle, ring or little finger disabilities analogous to amputation. The 2020 examiner specifically indicated that the functional impairment of the right hand, thumb, and fingers were not such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Board finds that the right-hand disability does not more nearly approximate amputation of any of the digits of the right hand. 38 C.F.R. § 4.71a; Diagnostic Codes 5126-5156. Because the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected right-hand disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 ; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to service connection for bilateral hearing loss The Veteran has asserted he suffers from bilateral ear hearing loss due to his time in service. The Veteran is competent to report observable symptoms and noise exposure; however, he is not competent to diagnose hearing loss disability at the levels specified in 38 C.F.R. § 3.385, as this requires objective testing and medical expertise for interpretation. See 38 C.F.R. § 4.85(a). The Veteran’s service treatment records do not document hearing loss as defined in 38 C.F.R. § 3.385. He worked during service in aerospace maintenance. During service he was enrolled in hearing conservation programs. On the authorized audiological evaluation in June 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 10 25 LEFT 15 10 15 10 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The Veteran was found to have hearing loss in the frequency range of 6000 Hz or higher frequencies. The results did not indicate the need for medical intervention. The examiner stated that the Veteran’s bilateral ear hearing loss was at least as likely as not caused by or a result of an event in military service. The examiner noted the Veteran reported serving as an aircraft mechanic/boom operator/ramp control. He reported noise exposure from weapons, as well as exposure from being around aircraft. A 2007 examination showed mild hearing loss in the right ear. A 1999 enlistment examination showed normal hearing bilaterally. He was enrolled in hearing conservation programs during service, and data from 2007 and 2014 showed hearing loss bilaterally. The examiner concluded hearing loss is at least as likely as not a result of an event in service. He had clinically significant shift in hearing sensitivity noted throughout service. This is consistent with the Veteran’s report of significant noise exposure as an aircraft mechanic boom operator. At the Board hearing the Veteran reported being exposed to loud noises during service and that his hearing had worsened since last examined. The Veteran is service connected for tinnitus, and noise exposure has been conceded. On the authorized audiological evaluation in July 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 25 LEFT 15 10 15 15 25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. He was found to have normal hearing in the right ear, and sensorineural hearing loss in the frequency range of 6000 Hz or above for the left ear. Unfortunately, the June 2015 and July 2020 VA examinations do not show current hearing loss as defined by VA; and there is no other evidence of such current hearing loss disability for VA purposes. The Board is constrained to find that the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.