Citation Nr: 21030133 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-12 566A DATE: May 17, 2021 ORDER Service connection for tinnitus is granted. A reduction from 10 percent to 0 percent for residuals of a fractured left index finger, effective December 1, 2014, was not proper. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a lumbar spine disability is remanded. Service connection for a left shoulder disability is remanded. Service connection for an ingrown right great toenail is remanded. An increased rating in excess of 10 percent for laceration scar residuals on the tip of the nose and right upper lip is remanded. An increased rating in excess of 10 percent for residuals of a fractured left index finger is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran has experienced continuity of symptomatology related to tinnitus since his separation from service. 2. A September 2014 rating decision implemented the disability rating reduction from 10 percent to 0 percent for residuals of a fractured left index finger. 3. At the time of the December 1, 2014 effective date of the reduction, the 10 percent rating for the Veteran's residuals of a fractured left index finger had not been in effect for more than five years. 4. The evidence of record at the time of the September 2014 AOJ rating decision failed to demonstrate a sustained improvement in the Veteran's service-connected residuals of a fractured left index finger under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The reduction of the rating for service-connected residuals of a fractured left index finger from 10 percent to 0 percent was improper and restoration of the 10 percent rating, effective December 1, 2014, is warranted. 38 U.S.C. § § 1155, 5103; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5229. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from March 1981 to March 1984. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board further notes that, in a September 2014 rating decision, the AOJ reduced the 10 percent rating for residuals of a fractured left index finger to 0 percent disabling, effective December 1, 2014. A claim stemming from a rating reduction action must be phrased as whether the reduction was proper, not whether the Veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, the Veteran's appeal also encompasses his claim of entitlement to a higher disability rating since the inception of the appeal. Thus, the Board has rephrased this issue on the title page to reflect the separate increased rating and rating reduction issues and the fact that staged ratings have been assigned. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board notes that the TDIU issue was not expressly raised in prior rating decisions, but was reasonably construed as a request for TDIU based on the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability ratingwhether expressly raised by a Veteran or reasonably raised by the recordis not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. Service connection for tinnitus. The Veteran contends that his tinnitus is related to service. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of tinnitus as evidenced by the April 2012 VA examination. Tinnitus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran complained of experiencing tinnitus symptoms for over one and a half weeks in November 1982, during active service. Post-service, the Veteran testified before the undersigned in March 2021. He explained that his military occupational specialty as a cannon crewman involved frequent hazardous noise exposure and that he has experienced intermittent ringing in his ears since service. The Veteran is competent to report that he experienced symptoms of tinnitus since service. His testimony is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that the Veteran was exposed to harmful loud noises during service, he was treated for complaints of tinnitus during service, and that the symptoms he experienced during service are attributable to his current tinnitus. As a result, continuity of symptomatology is established. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination or medical opinion to aid in determining the etiology of the current tinnitus. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, despite the absence of documented post-service treatment related to the tinnitus for many years, the evidence includes the Veteran's statements and sworn testimony asserting continuity of symptoms. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of disability even where not corroborated by contemporaneous medical evidence). The Board finds the Veteran's statements to be consistent with the circumstances, conditions, and hardships of such service. In this case, the Veteran is competent to report symptoms of tinnitus because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the April 2012 VA examination opinion is not probative as the VA examiner's opinion specifically relied on her statement that there was no evidence of treatment for tinnitus during service when the service treatment records clearly show otherwise. 2. A reduction from 10 percent to 0 percent for residuals of a fractured left index finger, effective December 1, 2014, was not proper. The Veteran contends that the reduction of his 10 percent rating to a 0 percent rating for the residuals of a fractured left index finger was not proper. When determining whether a reduction was proper, there are two sequential steps that must be addressed on appeal. First, whether the RO satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If yes, the second step concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the rating reduction did result in a reduction of VA compensation being paid to the Veteran as the overall, combined disability rating was reduced from 20 percent to 10 percent. Thus, the procedural protections of 38 C.F.R. § 3.105(e) apply. Cf. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). The procedural requirements were properly applied in this case. In cases where a rating has been in effect for less than 5 years the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). In this case, the Veteran's 10 percent disability rating was awarded effective July 15, 2011. The rating was reduced effective December 1, 2014. Accordingly, 38 C.F.R. § 3.344(c) applies. Under 38 C.F.R. § 3.344(c), reexaminations disclosing improvement in a service-connected disability will warrant reduction in rating. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 420 (1993). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, "the Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the RO's reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Under the Limitation of Motion of Individual Digits rating criteria for DC 5229, a 0 percent disability rating is assigned when there is a gap of less than one inch (2.5 cm.) 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 rating is warranted when there is a gap of one inch (2.5 cm.) 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Veteran's service-connected residuals of a fractured left index finger from 10 percent to 0 percent was improper. The Veteran's 10 percent rating was assigned based on the findings of an August 2011 VA examination, at which time, the Veteran reported having pain with limitation of motion for the left index finger. His disability resulted in functional loss and impairment due to weakened movement. He endorsed tenderness and pain in the left index finger. Range of motion testing revealed limitation of motion with evidence of pain, which began at a gap of less than one inch. With repetition, there was no additional loss in range of motion. In May 2012, the Veteran was granted a 10 percent rating under Diagnostic Code 5229, effective July 15, 2011. The Veteran's left index finger was reexamined in January 2014. At that time, the Veteran reported limited motion in the left index finger. Initial range of motion testing revealed limitation of motion or evidence of painful motion for the left index finger. There was a gap of less than one inch between the left index finger and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. Painful motion began at a gap of less than one inch for the left index finger. Repetitive use testing did not reveal additional loss in range of motion. The VA examiner remarked that there was pain with motion of the left index finger and limited range of motion due to the service-connected injury. The Veteran testified before the undersigned in March 2021. He explained that his left index finger symptoms have not improved at any point during the course of the appeal. He endorsed continuous symptoms of left index finger pain and limited motion. After a thorough review of the evidence, the Board finds that the record does not establish by a preponderance of the evidence that the Veteran's residuals of a fractured left index finger improved so as to warrant a rating reduction under the appropriate rating criteria. Notably, the award of a 10 percent rating in the May 2012 AOJ rating decision was predicated on a finding of painful limitation of motion for the left index finger. The rating reduction was premised on a subsequent range of motion test that did not show a gap of one inch (2.5 cm.) 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. However, the rating decision did not account for the painful motion associated with the left index finger. Additionally, the Veteran has generally alleged a worsening of the residuals of a fractured left index finger, and the Board finds no evidence suggesting why the Veteran's residuals of a fractured left index finger would improve from a medical point of view (e.g., corrective surgery). Furthermore, there is no finding from a competent examiner that the Veteran has demonstrated actual improvement of the residuals of a fractured left index fingerparticularly under the ordinary conditions of life. The August 2011 and January 2014 VA examinations show essentially the same symptoms of painful limitation of motion for the left index finger, which is entitled to a minimum compensable rating under 38 C.F.R. § 4.59. In sum, based on the evidence at the time of the reduction, the preponderance of the evidence did not establish that the Veteran's service-connected residuals of a fractured left index finger demonstrated improvement under ordinary conditions of life and work. Accordingly, based on the analysis above, the reduction of the Veteran's residuals of a fractured left index finger was improper and restoration of a 10 percent rating is warranted effective July 15, 2011. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. The Veteran testified before the undersigned in March 2021 and endorsed worsened bilateral hearing loss since the April 2012 VA examination. He also identified relevant outstanding private ENT treatment records. A remand is required to allow VA to obtain authorization and request these records. 2. Service connection for a lumbar spine disability is remanded. 3. Service connection for a left shoulder disability is remanded. 4. Service connection for an ingrown right great toenail is remanded. During the March 2021 Board hearing, the Veteran reported that he has continued to receive VA treatment for the lumbar spine, left shoulder, and ingrown right great toenail disabilities on appeal. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The March 2014 VA shoulder examination is inadequate to the extent it did not indicate whether the Veteran had a current diagnosis. The VA examiner's opinion also incorrectly stated there were "no objective findings of a left shoulder injury" in the Veteran's service treatment records. In fact, the Veteran was treated in April 1982 for a left shoulder injury. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment). The January 2014 VA foot examination opinion is inadequate to the extent it did not consider whether the February 1982 in-service treatment and assessment for a partially removed and ingrown right great toenail with fungus was related to the current onychomycosis with abnormal growth of the right great toenail. 5. An increased rating in excess of 10 percent for laceration scar residuals on the tip of the nose and right upper lip is remanded. 6. A rating in excess of 10 percent for residuals of a fractured left index finger is remanded. The Veteran testified before the undersigned in March 2021 and endorsed increased worsening of his service-connected laceration scar residuals on the tip of the nose and right upper lip, as well as residuals of a fractured left index finger. However, the Board is without the expertise necessary to determine the extent of worsened symptoms exhibited by the Veteran's disability. "VA regulations specifically require the performance of a new medical examination ... [when] 'evidence indicated there has been a material change in a disability or that the current rating may be incorrect.'" Caffrey v. Brown, 6 Vet. App. 377, 381 (quoting 38 C.F.R. § 3.327(a)) (1994). As there is evidence indicating that the Veteran's conditions have worsened since his last VA examinations of record, the Board finds that the Veteran's claim should be remanded to provide him with updated examinations to accurately assess the current condition of these disabilities. In claims for a rating increase, it is first and foremost a priority to ensure that the most current assessment of the service-connected disability picture is of record. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). During the March 2021 Board hearing, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. Evidence indicates that there may be outstanding relevant VA treatment records. During March 2021 Board hearing, the Veteran reported that he has continued to receive VA treatment for the disabilities on appeal. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue[s] on appeal. A remand is required to allow VA to obtain them. 7. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability cannot be adjudicated until the service connection and rating issues are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the bilateral hearing loss, lumbar spine, left shoulder, right ingrown toenail, laceration scar residuals on the tip of the nose and right upper lip, and residuals of a fractured left index finger. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from March 2015 to the Present. 3. Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran's description of his in-service noise exposure and symptoms as well as his post-service symptoms. Is it at least as likely as not that the disability (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 4. Obtain an addendum opinion (or schedule the Veteran for a VA examination if necessary) for his lumbar spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. Is it at least as likely as not that the disability (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 5. Obtain an addendum opinion (or schedule the Veteran for a VA examination if necessary) for his left shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. Is it at least as likely as not that the disability (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 6. Obtain an addendum opinion (or schedule the Veteran for a VA examination if necessary) for his right great ingrown toenail disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, to include February 1982 in-service treatment for fungus and partial right great toenail removal? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected laceration scar residuals on the tip of the nose and right upper lip. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of a fractured left index finger. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 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 at all 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). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.