Citation Nr: 21023400 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-42 119 DATE: April 20, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a contusion of the right thumb with limitation of motion is denied. Entitlement to an initial rating in excess of 10 percent for a contusion of the right index finger with limitation of motion is denied. Entitlement to an initial rating in excess of 10 percent for a contusion of the right long finger with limitation of motion is denied. Entitlement to an initial compensable rating for a contusion of the right ring finger with limitation of motion is denied. Entitlement to an initial compensable rating for a contusion of the right little finger with limitation of motion is denied. A separate rating of 10 percent, but no higher, for decreased grip strength of the right hand is granted. Entitlement to an initial compensable rating for left ear hearing loss prior to June 21, 2019 and bilateral hearing loss thereafter is denied. FINDINGS OF FACT 1. The Veteran’s right thumb contusion has been manifested by painful motion. 2. The Veteran’s right index finger contusion has been manifested by painful motion. 3. The Veteran’s right long finger contusion has been manifested by painful motion. 4. The Veteran is in receipt of the maximum schedular rating for limitation of motion of the right ring finger. 5. The Veteran is in receipt of the maximum schedular rating for limitation of motion of the right little finger. 6. The competent and probative evidence is at least in equipoise as to whether decreased grip strength results in moderate impairment of flexion of the right wrist and fingers. 7. For the entire period on appeal, the Veteran’s right ear hearing loss has had a Numeric Designation of no greater than I as per Table IV of the VA schedule of ratings; the Veteran’s left ear hearing loss has had a Numeric Designation of no greater than I as per Table VI of the VA schedule of ratings. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for the right thumb have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5228 (2020). 2. The criteria for entitlement to an initial rating in excess of 10 percent for the right index finger have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5229 (2020). 3. The criteria for entitlement to an initial rating in excess of 10 percent for the right long finger have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5229 (2020). 4. The criteria for entitlement to an initial compensable rating for the right ring finger have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5030 (2020). 5. The criteria for entitlement to an initial compensable rating for the right little finger have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5030 (2020). 6. The criteria for entitlement to a separate rating of 10 percent, but no higher, for decreased grip strength of the right hand have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.73, Diagnostic Code 5307 (2020). 7. The criteria for a compensable disability rating for left ear hearing loss prior to June 21, 2019 and for bilateral hearing loss beginning June 21, 2019 have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from May 1995 to May 1999 and in the Army National Guard from April 1, 2008 to May 14, 2008 and April 23, 2009 to May 4, 2009. Increased Ratings for the Right Hand The Veteran contends that this right thumb, index, long, ring, and little finger impairments impairment warrant increased ratings. In June 2018, the Board remanded the Veteran’s claims for increased ratings for updated medical examinations. The Veteran was awarded increased, 10 percent, ratings in a May 2020 rating decision for the impairments of the thumb, index, and long fingers. As higher disability ratings remain, the Veteran’s claims for increased ratings have been returned to the Board for additional consideration. Evidence of Record Upon VA examination in September 2012, the Veteran noted he had flare ups of the hand which resulted in pain. Range of motion testing showed there was no evidence of limitation of motion or evidence of painful motion for any of the fingers or the thumb. The Veteran was able to perform repetitive-use testing and there was no pain found on palpitation. Muscle strength testing was normal and there was no evidence of ankylosis in the thumb or fingers. The examiner noted that the Veteran uses a brace for flare ups and cannot work until the flare up is resolved with rest, brace, and naproxen. VA Medical Center (VAMC) treatment records show the Veteran was treated for ongoing intermittent tingling in the bilateral hands. See e.g. VAMC treatment dated November 2, 2012, July 12, 2013. Grip strength was noted to be 3 out of 5 in the right hand. See VAMC treatment dated August 27, 2019. Upon VA examination in June 2019, the Veteran reported intermittent numbness in the right hand. The Veteran also stated he would experience lumps in the hand during period of flare ups during which he was unable to work or write. Range of motion testing showed all normal extension and flexion of the fingers and thumb. There was no pain noted on examination. The Veteran did not have a gap between the pad of the thumb and the fingers. The Veteran was able to perform repetitive-use testing and there was no pain found on palpitation. Muscle strength testing was normal and there was no evidence of ankylosis in the thumb or fingers. The examiner noted the Veteran would have a reduced range of motion during flare ups in the fingers and thumb. Muscle strength testing was normal and there was no evidence of ankylosis in the thumb or fingers. The examiner noted the Veteran may have difficulties with grasping and tasks requiring manual dexterity due to hand pain and range of motion. 1. Entitlement to an initial rating in excess of 10 percent for a contusion of the right thumb with limitation of motion The Veteran’s right thumb disability is rated under Diagnostic Code 5228 for limitation of motion of the thumb. Under Diagnostic Code 5228, a 10 percent rating is assigned when there is a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than two inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers. Id. Additional applicable diagnostic codes include Diagnostic Code 5224 for ankylosis of the thumb, under which unfavorable ankylosis of the thumb warrants a 20 percent rating and favorable ankylosis warrants a 10 percent rating. Under Diagnostic Code 5221, favorable ankylosis of four digits of one hand (thumb and any three fingers) is rated as 40 percent for the minor hand and 50 percent for the major hand. Favorable ankylosis of four digits of one hand (index, long, ring, and little fingers) is rated as 30 percent for the minor hand and 40 percent for the major hand. 38 C.F.R. § 4.71a, Diagnostic Code 5221. After a review of the medical records, the Board finds that a rating in excess of 10 percent is not warranted. The Veteran’s limitation of the thumb has been manifested by normal ranges of motion with flare ups resulting in reduced grip strength. Considering the Veteran’s reported flare ups, the Board finds that the Veteran’s thumb is most closely approximated under Diagnostic Code 5228 for a gap of one to two inches between the thumb pad and the fingers. At no point has a gap of more than two inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers been shown, nor has the Veteran exhibited any ankylosis as to warrant a higher rating. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, including the reports of pain and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical records do not support the assignment of a higher rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for a contusion of the right thumb with limitation of motion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. & 3. Entitlement to initial ratings in excess of 10 percent for a contusions of the right index finger and right long finger with limitation of motion Limitation of motion in the index or long finger is rated under Diagnostic Code 5229. 38 C.F.R. § 4.71a, Diagnostic Code 5229. A 10 percent rating is assigned when there is a gap of one inch 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. A gap of less than one inch is noncompensable. Id. Additional applicable diagnostic codes include Diagnostic Code 5225 and 5226 for ankylosis of the index and long fingers, under which unfavorable and favorable ankylosis of the index or long fingers warrants a 10 percent rating. Under Diagnostic Code 5221, favorable ankylosis of four digits of one hand (thumb and any three fingers) is rated as 40 percent for the minor hand and 50 percent for the major hand. Favorable ankylosis of four digits of one hand (index, long, ring, and little fingers) is rated as 30 percent for the minor hand and 40 percent for the major hand. 38 C.F.R. § 4.71a, Diagnostic Code 5221. After a review of the medical records, the Board finds that a rating in excess of 10 percent is not warranted. The Veteran’s limitations of the index and long fingers have been manifested by normal ranges of motion with flare ups resulting in reduced grip strength. Considering the Veteran’s reported flare ups, the Board finds that the Veteran’s index and ling fingers are most closely approximated under Diagnostic Code 5229 for a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible. This is the highest possible rating for limitations of the range of motion for the index and long fingers. Further, a higher limitation is also not available for ankylosis of the index and long fingers without involvement of four or more digits, nor has the Veteran exhibited any ankylosis as to warrant a higher rating. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, including the reports of pain and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical records do not support the assignment of a higher rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for a contusion of the right index and long fingers with limitation of motion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. & 5. Entitlement to initial compensable ratings for contusions of the right ring and little finger with limitation of motion Limitation of motion in the ring finger or little finger is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Veteran is already in receipt of the maximum, noncompensable ratings for limitation of motion of the ring and little fingers. See 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Board finds that a separate or higher rating is not warranted, as the weight of the competent and probative evidence is against finding ankylosis of any of the digits of the right hand. See 38 C.F.R. § 4.71a. The Board further finds that a higher rating is not warranted by analogy to amputation at the metacarpal or at the PIP joint, as the weight of the competent and probative evidence is against finding functional impairment of any digit such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. 38 C.F.R. § 4.71a Diagnostic Code 5155. 6. Entitlement to a separate 10 percent rating for decreased grip strength Flexion of the wrist and fingers, when rated as a muscle injury under 38 C.F.R. § 4.73, Diagnostic Code 5307 (muscle group VII), is rated at zero percent for a slight disability and 10 percent for moderate disability. Moderately severe disability warrants a 30 percent rating for the dominant extremity and a 20 percent rating for the nondominant extremity. Finally, the maximum 40 percent is assigned for severe disability of the dominant extremity, and a 30 percent rating is assigned for severe disability of the nondominant extremity. 38 C.F.R. § 4.73, Diagnostic Code 5307. The evidence demonstrates that the Veteran’s right hand is his dominant extremity. See June 2019 VA examination. As previously noted, the Veteran reported difficulty gripping objects and tasks requiring fine motor skills. Accordingly, the Board finds that a separate 10 percent rating is warranted under Diagnostic Code 5307, as the competent and probative evidence is at least in equipoise as to whether decreased grip strength results in moderate impairment of flexion of the right wrist and fingers. A higher rating is not warranted, as VA examiners in September 2012 and June 2019 both found normal grip strength (5/5), which weighs against finding moderately severe impairment. See 38 C.F.R. § 4.73, DC 5307. 7. Entitlement to an initial compensable rating for left ear hearing loss prior to June 21, 2019 and bilateral hearing loss thereafter Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Hearing impairments are evaluated pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Ratings for hearing impairments are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. 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 the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran seeks an increased evaluation for his service-connected bilateral hearing loss. Service connection for left ear hearing loss was granted by an October 2012 rating decision, which assigned a noncompensable initial evaluation effective August 2, 2012. Service connection for right ear hearing loss was granted by a May 2020 rating decision, which assigned a noncompensable rating for bilateral hearing loss effective June 21, 2019. Accordingly, the Board has considered the evidence for the increased rating claim for left ear hearing loss since August 2, 2012 and bilateral hearing loss since the June 21, 2019 effective date. However, at no time during the appellate period has the Veteran’s hearing loss in either ear rose to a compensable level as evidenced below. Turning to the evidence, the Veteran underwent a VA examination in September 2012. The examination report shows that he exhibited puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 10 20 LEFT 10 10 20 25 40 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 24 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 100 percent bilaterally. Applying the test results of the September 2012 VA examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right and left ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran underwent a VA examination in June 2019. The examination report shows that he exhibited puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 40 50 LEFT 30 40 50 55 65 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 34 decibels in the right ear and 53 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 94 percent in the right ear and 100 percent in the left ear. Applying the test results of the June 2019 VA examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right and left ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Upon careful review of the evidence of record as detailed above, the Board finds the preponderance of the evidence is against granting a compensable disability rating for hearing loss. The Veteran has undergone audiological examinations, the results of which would not entitle him to a compensable rating. As the Veteran’s hearing loss has been tested with reliable results, and the Veteran has not claimed that his hearing loss has worsened since his last VA examination, nor that his hearing is worse than found upon examination, the Board finds that the Veteran’s bilateral hearing loss does not warrant a compensable rating. The Board has considered the Veteran’s statements regarding the severity of his hearing loss to include his testimony at the November 2017 Board hearing, and in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss; however, it must be reiterated that the schedular assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, with regard to a schedular rating, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology study of record. Lendenmann, supra. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To that end, the Veteran’s assertions as to the severity of his bilateral hearing loss, though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for a compensable rating. See Jandreau, 492 F.3d at 1376-77. As the preponderance of the evidence is against an increased schedular rating, the benefit of the doubt rule does not apply. 38 U.S.C.§ 5107(b); see Gilbert, supra. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.