Citation Nr: 21025857 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-25 884 DATE: April 29, 2021 ORDER Service connection for bilateral hearing loss is denied. A rating higher than 10 percent for right wrist sprain is denied. A compensable rating for hypertension is denied. A compensable rating for right thumb strain is denied. REMANDED A rating higher than 10 percent for thoracolumbar spine degenerative disc disease is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has bilateral hearing loss for VA purposes. 2. The Veteran does not have favorable or unfavorable ankylosis of the right wrist. 3. The Veteran's hypertension was not manifested by diastolic pressure of 100 or more, or by systolic pressure of 160 or more. 4. The Veteran’s right thumb symptoms have not more nearly approximated limitation of motion with a gap between the thumb pad and fingers or ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for a rating higher than 10 percent for right wrist strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5215. 3. The criteria for a compensable rating for hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.104, DC 7101. 4. The criteria for a compensable rating for right thumb strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.45, 4.59, 4.71a, DCs 5228-5024. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from December 1980 to September 2001. The Veteran attended a videoconference hearing before the undersigned in December 2019; a copy of the transcript is associated with the record. Service Connection 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s military occupational specialties (MOS) aviation ordnance repairman, explosive ordinance disposal technician, and a ground operations specialist. The Board concedes the Veteran had noise exposure in-service. The Veteran underwent two VA examinations regarding his claim for hearing loss. Neither VA examination showed that the Veteran met the criteria for hearing loss for VA purposes. At the December 2020 VA examination the Veteran’s hearing loss in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 15 25 LEFT 10 10 10 15 15 His speech discrimination scores were 100 in each ear. His examination in 2014 showed similar hearing and discrimination scores. The Board is not aware of any medical record which demonstrates that the Veteran’s hearing loss meets the requirements of § 3.385 and has not found that any such evidence is admitted into the record. While the Board concedes that the Veteran had noise exposure in-service, without evidence that he meets the criteria for hearing loss for VA purposes, there is no documented hearing loss disability which can be service connected due to such noise exposure. Thus, the Board concludes that the Veteran does not have a current diagnosis of hearing loss for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges the lay statements regarding the Veteran's hearing loss and is sympathetic to the Veteran’s claim. However, while the Veteran believes he has hearing loss, the medical records of evidence do not establish that he currently meets the criteria for diagnosis of a hearing loss disability for VA purposes. The Board gives more probative weight to the competent medical evidence which includes medical records and VA examination reports which shows no diagnosis of hearing loss with meet VA criteria for a diagnosed disability. Therefore, the preponderance of the evidence is against the granting of service connection for bilateral hearing loss. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Right Wrist The Veteran’s right wrist was assigned a 10 percent rating since his grant of service connection under DC 5215. Under DC 5215, a 10 percent rating is assigned for limitation of dorsiflexion of the wrist less than 15 degrees. Alternatively, a 10 percent rating may be assigned when palmar flexion is limited in line with forearm. There is no differentiation in the ratings assigned for the major and minor hands under DC 5215. Separate 10 percent ratings may not be assigned under DC 5215 for both limitation of dorsiflexion and limitation of palmar flexion. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Normal range of motion of the wrist is 0 to 70 degrees dorsiflexion, 0 to 80 degrees palmar flexion, 0 to 45 percent ulnar deviation, and 0 to 20 percent radial deviation. 38 C.F.R. § 4.71, PLATE I. A 10 percent disability rating is the maximum rating that may be assigned for the wrist based on limitation of motion under DC 5215. Thus, consideration of whether there is additional limitation during flare-ups is not warranted. See Johnston v. Brown, 10 Vet. App. at 85. Thus, the Veteran is currently assigned the maximum rating available for any limitation of motion of his wrist. Furthermore, neither favorable nor unfavorable ankylosis was present during any of the Veteran’s VA examinations and no such ankylosis of his wrist is documented in any other medical record of evidence. See 2016 and 2020 VA examinations. Absent diagnosis of ankylosis, a rating higher than 10 percent for a wrist disability is not warranted. In other words, a schedular rating higher than 10 percent is not available through any diagnostic codes pertaining specifically to the wrist. See 38 C.F.R. § 4.71a, DC 5214. In this case, there is no legal basis upon which to award a higher rating for limitation of motion of the right wrist, as the maximum rating available has already been assigned. The Veteran’s claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). Hypertension The Veteran's hypertension has been assigned a noncompensable (0%) rating since his grant of service connection under DC 7101. Under DC 7101, a 10 percent rating is assigned when diastolic pressure is predominantly 100 or more; systolic pressure is 160 or more; or when there is a history of diastolic pressure of 100 or more and continuous medication is required for control. A 20 percent rating is assigned when diastolic pressure is predominantly 110 or more, or when systolic pressure is predominantly 200 or more. A 40 percent rating is assigned when diastolic pressure is predominantly 120 or more and a 60 percent rating is assigned when diastolic pressure is predominantly 130 or more. Blood pressure readings are shown as systolic pressure/diastolic pressure. After review of the record, the Board does not find that any medical evidence of record shows the Veteran's hypertension resulted in diastolic pressure of 100 or more or systolic pressure of 160 or more. The Veteran's hypertension is controlled by continuous medication. However, no blood pressure readings contained in the evidence of record rise to the level required by DC 7101 to warrant a compensable rating. The Veteran underwent two VA examinations in September 2020 and December 2016. Neither of those examinations found that the Veteran had a history of diastolic blood pressure of 100 or more and neither examination recorded his systolic pressure at 160 or more. The Board has considered the Veteran's statements, including his hearing testimony, and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As such, the Board finds that the evidence of record does not support a compensable rating for the Veteran's hypertension. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Thumb Strain The Veteran’s right thumb is assigned a noncompensable (0%) rating as of his grant of service connection under DCs 5228-5024. DC 5228 provides for two different ratings, i.e., 10 percent and 20 percent. The ratings are based on the limitation of motion of the thumb, as reflected by the size of the gap between the thumb and the fingers, with the thumb attempting to oppose the fingers. DC 5024 identifies tenosynovitis, tendinitis, tendinosis or tendinopathy and states that such a disability should be rated as degenerative arthritis based on limitation of motion of the affected part. Note (2) to DC 5003 which addresses degenerative arthritis specifically states that 20 and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under DC 5024. As DC 5228 only considers loss of motion reflected in the gap between the thumb pad and opposing fingers and the Veteran has not exhibited any loss of motion in that regard, the rating for the Veteran's right thumb disability pursuant to DC 5228 is 0 percent. See December 2016 and September 2020 VA examinations. Indeed, the Veteran’s September 2020 VA examination showed the Veteran reported his thumb symptoms had resolved and that there was no diagnosis of a right thumb disability. Thus, there is no applicable diagnostic code which provides for a compensable rating for the Veteran’s right thumb strain. There is no evidence of record which shows the Veteran meets the criteria for a compensable rating. The Board has considered the Veteran' statements, including his hearing testimony, and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As such, the Board finds that the evidence of record does not support a compensable rating for the Veteran's right thumb strain. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Thoracolumbar Spine The Board finds that the Veteran’s September 2020 VA examination inadequate for adjudication purposes. The Veteran has consistently reported flare-ups and radiculopathy pain associated with his lumbar spine – including as recently as his December 2019 hearing. However, the September 2020 examination did not document these complaints. The Board finds that a new examination is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination to determine the current severity of his service-connected lumbar spine disability, including any separate symptoms of lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Thereafter, determine if the Veteran is entitled to any periods of convalescence for any surgery upon his service- connected lumbar spine disability and also determine if separate ratings for any lower extremity radiculopathy associated with the Veteran’s lumbar spine disability are warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.