Citation Nr: 21023188 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-17 072 DATE: April 20, 2021 ORDER Service connection for bilateral hearing loss is denied. A compensable rating for a right fourth finger disability is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s bilateral hearing loss began during service, within one year of separation from service, or was otherwise caused by his active service. 2. The Veteran is in receipt of the maximum schedular rating for his right fourth finger disability under Diagnostic Code 5227. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for a compensable rating for a right fourth finger disability have not been met. 38 U.S.C. §§ 1155, 5107 38 C.F.R. § 4.71a, Diagnostic Code 5227. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1972 to November 1974 and January 1975 to January 1977. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran filed a service connection claim for bilateral hearing, which was denied by a June 2012 rating decision. He asserted that his bilateral hearing loss is due to his active service. The Veteran’s military noise exposure is not at issue, as noise exposure is consistent with his service in the Marine Corps and his exposure to weapons noise. However, for service connection to be warranted it must be shown that such military noise exposure actually caused a hearing loss disability for VA purposes and/or caused tinnitus. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s STRs show that at his first entrance examination in August 1972, his first separation examination in November 1974, his second entrance examination in December 1974, and his second separation examination in January 1977, audiological test results did not show hearing loss for VA purposes, and showed no more than 5 decibel shift at any frequency. His STRs contain no complaints, symptoms, treatment, or diagnosis of bilateral hearing loss. In May 2012, the Veteran was afforded a VA examination. Audiological testing showed bilateral hearing loss for VA purposes. After reviewing the Veteran’s claim’s file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not due to his active service. The examiner reported that the Veteran had a history of noise exposure during his active service, but he had normal audiological examinations during his active service. In January 2019, the Board remanded the claim for further development, to include affording the Veteran a new VA examination as the May 2012 opinion was found to be inadequate. In addition, the Veteran submitted a medical article in support of his claim. In December 2019, the Veteran was afforded a new VA examination. Audiological testing showed bilateral hearing loss for VA purposes. After reviewing the Veteran’s claim’s file, including the submitted medical article, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not due to his active service, to include any military noise exposure. The examiner reported there was no significant permanent hearing threshold shift beyond test variability from his entrance examination to his separation examination. The examiner reported that there was no complaints or treatment for hearing loss during the Veteran’s active service. It is not disputed that he now has hearing loss for VA purposes. It is also not disputed that the Veteran experienced military noise exposure during his active service. However, military noise exposure alone is not considered to be a disability, rather, when sensorineural hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure. The Veteran’s claims file shows that he had normal audiological examinations during his active service and the first objective evidence of hearing loss is not until the May 2012 VA examination. The Veteran submitted a medical article supporting his claim. The Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). However, the medical article submitted by the Veteran was not accompanied by the opinion of any medical expert. The article speaks in terms too general to be of probative value to the current medical history VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. The Board finds the greatest probative value in the December 2019 VA examiner’s opinion. Notably, the Veteran has not submitted any competent evidence, beyond his own assertions, supporting his assertion that his bilateral hearing loss was due to his active service, to include military noise exposure Consideration has been given to the Veteran’s assertion that his bilateral hearing loss was due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report difficulty hearing, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating audiological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value in the determination of the etiology of the Veteran’s bilateral hearing loss. Accordingly, the criteria for service connection for bilateral hearing loss have not been met, and the claim is denied. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s schedule for rating disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed an increased rating claim for his right fourth finger disability, which was denied by a June 2012 rating decision. He asserted that he was entitled to a compensable rating. The Veteran’s right fourth finger disability is rated at a noncompensable rate under Diagnostic Code 5227. Diagnostic Code 5227 provides that a maximum schedular rating of 0 percent is to be assigned for ankylosis of the ring or little finger. Diagnostic Code 5230 also provides that a maximum schedular rating of 0 percent is to be assigned for any ring or little finger limitation of motion. In November 2020, the Veteran had a VA examination. The examiner determined that the Veteran had a diagnosis of right carpal tunnel syndrome. The examiner indicated that the Veteran’s carpal tunnel diagnosis was as a progression of the Veteran’s service-connected right fourth finger disability. In December 2020, a different VA examiner provided an addendum opinion. The examiner determined that the Veteran’s right fourth finger disability was not related to a hand strain or carpal tunnel syndrome. The examiner determined that there was nothing with which to link diagnoses of bilateral hand sprain and/or bilateral Dequervain’s tenosynovitis to the Veteran’s right fourth finger disability. The examiner further determined that there was no condition of right carpal tunnel syndrome. The examiner opined that it was less likely than not that the Veteran’s right fourth finger disability was related to any other condition. Furthermore, the issue on appeal is entitlement to a compensable rating for the Veteran’s right fourth finger disability. Any claim for service connection on a secondary basis would have to be filed separately. Accordingly, the criteria for a schedular compensable rating for the Veteran’s right fourth finger disability have been not been met, and the Veteran’s claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, Associate 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.