Citation Nr: 21027610 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-00 670 DATE: May 6, 2021 ORDER A 10 percent disability rating, but no higher, for a scar on the right fourth finger, is granted subject to the laws and regulations governing monetary benefits. The appeal for a compensable, initial rating for residuals of a fracture of the right fourth finger is denied. The appeal for service connection for asthma is granted. The appeal for service connection for bilateral hearing loss is denied. REMANDED The appeal for service connection for right hand disorder (claimed as rheumatism), is remanded. FINDINGS OF FACT 1. The Veteran's right fourth finger scar measures 0.2 square centimeters and results in numbness and pain in the scar area. 2. The Veteran is already in receipt of the maximum schedular rating available for limitation of motion of the fourth finger. 3. The evidence is at least in equipoise that the Veteran has asthma that is related to service. 4. The preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss is related to service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for scars of the right fourth finger are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7802, 7804. 2. The criteria for a compensable rating for the right fourth finger disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5230. 3. Resolving doubt in favor of the Veteran, the criteria for service connection for asthma are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1969 to March 1972. The Veteran testified before the undersigned Veterans Law Judge during an April 2018 Travel Board hearing, the transcript of which is included in the file. The appeal was previously remanded by the Board in September 2018. Of note, an appeal for a compensable rating for residuals of fractures of the right third finger was also remanded by the Board in September 2018. While on remand, the agency of original jurisdiction (AOJ) granted an initial, 10 percent rating for painful limitation of motion in the right third (index) finger. As a higher schedular rating was not available for the third (index) finger, the AOJ informed the Veteran that the appeal with respect to that issue was fully satisfied. As the Veteran has not indicated any other issue associated with the right third finger, to include entitlement to an extraschedular rating, the Board agrees that the maximum benefit has been awarded and there is no further controversy for the Board to decide. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A 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 the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to an initial compensable rating for scarring associated with the service-connected right fourth finger. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and consider whichever is most favorable to the Veteran. Diagnostic Code 7800 deals with scars of the head, face, or neck and is not applicable to this claim. Diagnostic Code 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear (former code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the former code, a "deep scar" is defined as one associated with underlying soft tissue damage. Diagnostic Code 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear (former code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. Under the former code, a "superficial scar" is defined as one not associated with underlying soft tissue damage. Under both the former and amended criteria, Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under both the former and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. The Veteran's scar on the right fourth finger is currently rated as noncompensable under DC 7802 as scars, not of the head, face, or neck, which are superficial and nonlinear. The Veteran was provided a VA examination in December 2014. The December 2014 VA examiner reported the measurements of the Veteran's scars in centimeters, and the total combined area of the scar was found to be 0.1 square centimeters, which is less than 144 square inches. A subsequent VA examination in September 2019 also resulted in a finding of a scar that was also significantly less than 144 square inches. Thus, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating under DC 7802 because the Veteran's fourth finger scar is not manifested by an area of 144 square inches or greater. The Board finds, however, that a compensable rating is warranted under Diagnostic Code 7804 for numbness and pain in the scar. In this regard, the Veteran offered sworn testimony that he experienced numbness and some pain in the scar area. See Transcript page 7. The Board finds his testimony to be competent and credible. Diagnostic Code 7804 provides for a 10 percent rating for painful or unstable scars. The Board resolves doubt in the Veteran's favor and finds that the Veteran's reports of numbness and some pain are of the type of pain intended by DC 7804. Thus, the Board finds that a 10 percent disability rating, but no higher, is warranted. Moreover, the Board finds that the 10 percent disability rating is warranted from the effective date for service connection as the Veteran has competently and credibly indicated experiencing numbness of the scar for the entire period on appeal. The Board has also considered whether any other applicable diagnostic codes may provide for a higher rating and finds that they do not. In this regard, there is no indication that the Veteran's fourth finger scar has any disabling effects. Thus, a rating under Diagnostic Code 7805 for disabling effects, is not warranted. In sum, the Board finds that a 10 percent disability rating, but no higher, is warranted for symptomatic scarring of the right fourth finger. The Board has applied the benefit of the doubt where necessary. 2. Entitlement to an initial compensable rating for residuals of a right fourth finger fracture. The Veteran asserts that he is entitled to a compensable disability rating for his service-connected right fourth (ring) finger. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran's ring finger disability is rated as noncompensable under Diagnostic Code 5230, applicable to limitation of motion of the ring or little finger. A zero percent, or noncompensable, disability rating is the only rating available for limitation of motion of the ring or little finger under Diagnostic Code 5230. 38 C.F.R. § 4.71a. VA recently revised regulations concerning the musculoskeletal system however the diagnostic codes pertinent to the finger ratings were not changed. The evidence of record shows that the Veteran has reported pain on movement of his service-connected right ring finger. While it is true that painful joint motion generally warrants the minimum compensable rating for the joint, there is no level of disability under the Diagnostic Code applicable to impairment of the ring finger that warrants a compensable rating. As such, a compensable rating based on painful movement is not available for the Veteran's service-connected ring finger disability. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). As the Veteran is in receipt of the highest schedular rating, there is no basis to award a higher rating. The Board has also considered the other Diagnostic Codes pertaining to the ring finger. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. 38 C.F.R. § 4.14. However, even if the Veteran's ring finger was ankylosed, the rating criteria do not provide a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5227. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a compensable disability rating for his service-connected right ring finger. 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. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for asthmatic bronchitis. There is no dispute that the Veteran has current diagnoses of asthma and chronic bronchitis. Private treatment records note diagnoses of asthma and chronic bronchitis. See e.g. April 2012 private treatment record. The Veteran asserts that he has experienced asthma and asthma-related issues since leaving service in 1972. Service treatment records confirm that the Veteran reported experiencing hay fever and sinusitis in October 1969. Thus, the remaining question is whether the Veteran's asthma began in service or is otherwise related to service. In September 2018, the Board remanded the appeal for a VA examination to address the question of whether there was a relationship to service. The July 2019 VA examiner opined that it was at least as likely as not that the Veteran's asthma was due to asthma and shortness of breath noted while in service. The examiner also noted that because asthma can be induced by hay fever, it was also at least as likely as not that Veteran's asthma is as caused by hay fever. Based on the July 2019 VA examiner's notation that the Veteran's asthma may have been caused by hay fever, and the fact that the Veteran reported a history of hay fever on his April 1968 pre-induction report of medical history, the AOJ sought an addendum opinion as to whether the Veteran's asthma preexisted service and was aggravated by service. In an October 2020 VA addendum opinion, the VA examiner opined that Veteran had pre-existing asthmatic bronchitis with hay fever prior to service. The examiner explained that the diagnosis was noted on an April 1968 pre-induction exam. The examiner also noted that the January 1972 separation examination demonstrated that the Veteran was in good health and with normal lungs and that there was no evidence of a diagnosis of asthma shown in service. The examiner also noted that the July 2019 VA respiratory examination demonstrated that the Veteran had intermittent shortness of breath and wheezing which was partially treated with bronchodilators and did not have functional impact. The examiner concluded that the service separation examination and the July 2019 VA examination demonstrated the projected natural history of the condition and did not represent aggravation (beyond natural progression). In November 2020, the AOJ asked the October 2020 VA clinician to address whether the Veteran's reports of shortness of breath, pain, or pressure in the chest, in the April 1968 pre-induction examination, were aggravated by service to include current diagnoses of asthma or asthmatic bronchitis. In November 2020, the examiner explained that the Veteran's January 1972 separation examination noted that the Veteran was in good health and had normal lungs. The examiner also cited the July 2019 VA examination report and noted that the service separation and VA examinations demonstrated the natural history of the condition and did not represent aggravation beyond natural progression. The Board has reviewed the service treatment records and notes that the current asthma disability was not noted on the Veteran's pre-induction examination in April 1968. Importantly, the Veteran's report of symptoms including shortness of breath, pain in chest or mild discomfort, on the April 1968 report of medical history does not determine whether the Veteran was sound at the time of service entrance. Rather, the presumption of soundness attaches when a disability is not noted on the medical examination completed by a service clinician. In this case, the April 1968 report of medical examination noted sinuses, lungs, and nose were all normal. The October 2020 VA addendum opinion did not explain the basis for the finding of clear and unmistakable evidence of a preexisting condition other than to cite the April 1968 report of medical history. The November 2020 VA addendum opinion merely re-stated the same. The Board finds that the Veteran's reports of shortness of breath in April 1968 are not clear and unmistakable evidence of preexisting asthma. In this regard, there are no medical records dated prior to service that indicate a diagnosis of asthma. As clear and unmistakable evidence of a preexisting disorder was not shown, the presumption of soundness remains intact, and the only remaining question is whether there it is at least as likely as not that the present disorder is related to service. For the following reasons, the Board finds that it is. The Board places a high probative value on the July 2019 VA opinion that the diagnosis associated with the Veteran's complaints is "asthma" and that it is at least as likely as not that the Veteran's asthma was due to asthma and shortness of breath noted in service. Moreover, the Board finds the examiner's opinion is consistent with the Veteran's competent and credible sworn testimony that he experienced asthma-related symptoms since service. The Board also finds the evidence consistent with the January 2021 letter from the Veteran's wife in which she reported observations of the Veteran's breathing problems since at least 1987. For the foregoing reasons, the Board resolves doubt and finds that the Veteran's asthma began in service. Service connection for asthma is warranted. 2. Entitlement to service connection for bilateral hearing loss. In addition to the regulations cited above, with hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2018). Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board acknowledges that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159; see also Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In this instant case, the December 2014 VA examination report demonstrates that the Veteran has current bilateral hearing loss as defined by 38 C.F.R. § 3.385. Additionally, there is no dispute that the Veteran was exposed to noise in service as he worked as a helicopter mechanic. The Veteran was also exposed to noise in service by generators, drills, power tools, and the shooting range. See December 2014 VA examination report. Regarding presumptive service connection for hearing loss, there is no indication that the Veteran had hearing loss complaints at the time of service separation. His separation report of medical history, he denied ear, nose, and throat trouble. See January 1972 Report of Medical History. The first indication of qualifying hearing loss was during the December 2014 VA examination, which was more than one year after service separation. Consequently, the Veteran is not entitled to a presumptive grant of service connection under 38 C.F.R. §§ 3.307, 3.309(a) for a disability present to a compensable degree within the first post-service year. The Board adds that the Veteran has not alleged his hearing loss symptoms started in service and have existed continuously since that time. The question for the Board is whether the present hearing loss is related to the noise exposure in service. The December 2014 VA examiner opined that the current hearing loss was less likely than not related to service because the Veteran's hearing was normal during service. As noted in Hensley, the lack of a demonstrated hearing loss disability in service "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The December 2014 VA examiner did not explain the significance of the finding that the Veteran had normal hearing in service. Thus, the Board remanded the claim for an addendum opinion in September 2018. As discussed in the September 2018 remand, the Board observes that the Veteran's audiograms on service entry and separation were not identical. The January 1972 threshold results documented during the separation examination included higher auditory thresholds than the April 1968 service entrance audiogram at some levels, and lower thresholds at other levels. Thus, the Board remanded the claim for an addendum opinion. The AOJ afforded the Veteran a new VA examination in August 2019. At that time, the examiner once again opined that any present hearing loss was less likely than not due to or caused by noise exposure during service. The examiner again based the opinion on a finding that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation. The examiner explained that the lack of a significant shift was objective evidence that there was no permanent auditory damage on active duty from conceded noise. The examiner also noted that there was no report of complaint or treatment for hearing decrease in service treatment records or at separation. The examiner cited the Veteran's January 1972 Report of Medical History in which the Veteran denied ear, nose, or throat trouble. The Board places a high probative value on the August 2019 VA opinion as the examiner considered the Veteran's history of noise exposure in service. There are no medical/audiological opinions of record in support of the claim for service connection. The Board acknowledges that the Veteran believes that his bilateral hearing loss is related to service; however, the Board finds that the Veteran is not competent to render an opinion as to the etiology of his hearing loss. In this regard, the Veteran is competent to report a history of in-service noise exposure. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Veteran lacks the requisite medical expertise and training to offer an opinion as to the etiology of a complex medical condition such as hearing loss. The existence of qualifying hearing loss, to include at the time of service separation, is determined by audiological testing. The Veteran has not been shown to be trained the field of audiology or to have the ability to objectively test his own hearing. As the Veteran lacks such training and credentials, he is not competent to diagnose hearing loss or provide an opinion pertaining to the etiology of his current hearing loss disability. Therefore, any statements in this regard are not probative. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for rheumatism. In accordance with the August 2018 remand, the Veteran was provided with a VA examination in July 2019. For the following reasons, an addendum opinion is required. The July 2019 VA examiner noted that there was no evidence of rheumatism in the Veteran's right hand and fingers and thus, did not offer an opinion as to whether it was at least as likely as not that any right hand disorder (other than service-connected index and ring finger disabilities) was related to service. However, the examiner noted that there was evidence of degenerative changes in the interphalangeal joints and thumb. The examiner should have provided an opinion as to whether any such degenerative changes were related to service or service-connected disability. The matter is REMANDED for the following action: 1. Seek an addendum opinion from the VA clinician who examined the Veteran in July 2019, or another appropriate clinician if necessary. Following review of the file, the clinician is asked to address the following: (a.) Identify all disorders of the right hand other than the service-connected index and ring finger disabilities. In particular, address the July 2019 X-ray showing degenerative changes in the interphalangeal joints and thumb metacarpophalangeal (MCP) joint. (b.) Is it at least as likely as not (i.e. a 50 percent or greater probability) that any current right hand disorder is related to service? (c.) If not directly related to service, is it at least as likely as not (i.e. a 50 percent or greater probability) that any current right hand disorder is caused or aggravated by the service-connected right index and/or ring finger disabilities? (d.) All opinions should be supported by a medical explanation or rationale. If in the opinion of the reviewing clinician a response to the question above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 2. Then, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.