Citation Nr: 22015402 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-24 633 DATE: March 17, 2022 ORDER Service connection for tinnitus is granted. Entitlement to an initial 10 percent rating based only on painful motion, but no higher, for service-connected right thumb strain is granted. Entitlement to an initial rating higher than 10 percent for service-connected right thumb strain is denied. REMANDED Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's tinnitus began during active service or is otherwise related to his in-service noise exposure as an aircraft mechanic. 2. Throughout the appeal period, the Veteran's right thumb strain has been manifested by painful motion, but not compensable limitation of motion. 3. At no point has the Veteran's right thumb motion been limited to a gap of one to two inches (2.5 to 5.1 cm.) or more between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial 10 percent rating based only on painful motion, but no higher, for service-connected right thumb strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45 4.59, 4.71a, Diagnostic Code 5228. 3. The criteria for entitlement to an initial rating higher than 10 percent for service-connected right thumb strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45 4.59, 4.71a, Diagnostic Code 5228. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of June 2016 and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled for a hearing before the Board in October 2021, pursuant to his hearing election in his May 2017 and September 2017 VA Forms 9. Per a September 2021 Correspondence, the Veteran's representative withdrew his hearing request, and the Board cancelled the scheduled hearing. See September 2021 Correspondence. As such, the Veteran has waived his right to a hearing, and this matter may be considered based upon the evidence of record. As a preliminary matter, the Board notes that additional evidence has been associated with the claims file since the April 2017 and September 2017 Statements of the Case (SOCs). In February 2022, the Veteran waived agency of original jurisdiction (AOJ) consideration of the additional evidence associated with the claims file at the time of his correspondence. See February 2022 Additional Evidence Response Form. As to evidence associated with the claims file after his February 2022 correspondence, this evidence does not pertain to the claims on appeal. Accordingly, there is no prejudice in proceeding below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent VA w/s hepatitis w/s risk evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established for "chronic diseases" as listed in 38 C.F.R. § 3.309(a) where evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.307; Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Because hearing loss and tinnitus are each considered a "chronic disease" as "other organic diseases of the nervous system" under 38C.F.R. §3.309(a), the Board looks to whether service connection is warranted on a presumptive or direct basis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus, which he reports began during service between 1990 and 1991. See May 2016 VA Examination. Initially, the Board recognizes that the Veteran had a high probability of in-service noise exposure in his military occupational specialty (MOS) as an aircraft mechanic. See Duty MOS Noise Exposure Listing, M21-1, V.iii.2.B.1.b. A fellow service-member that served in the same shop as the Veteran submitted a statement indicating that they worked in an extremely noisy environment together. See November 2017 Buddy Statement. Service treatment records show no treatment for tinnitus during service, and he denied hearing loss and ear trouble in September 1988, October 1990, January 1991, and August 1992 reports of medical history. His post-service treatment records, which are limited, do not include complaints of tinnitus. The Veteran was afforded a VA examination to assess the nature and etiology of his tinnitus in May 2016. The examiner reviewed the Veteran's claims file and then opined that the tinnitus was less likely than not caused by or a result of military noise exposure. In making this opinion, the examiner noted that the Veteran reported positive recreational noise exposure and did not complain of tinnitus during service; however, the Board notes that the examiner did not provide any additional rationale specific to tinnitus. The Veteran obtained a private opinion as to the etiology of his tinnitus in March 2017. The private examiner, Dr. K.R., documented his report of constant tinnitus and his service in the Marines as an aircraft mechanic and then opined that it is more likely than not that the Veteran's tinnitus is a direct result from his military service, particularly the noise exposure he experienced on the flight deck. Dr. K.R. did not indicate whether she reviewed the Veteran's service treatment records and/or the May 2016 VA examination in providing her opinion and did not provide detailed rationale. The Board finds that the evidence is in equipoise. While service treatment records do not document tinnitus, the Board finds that the Veteran's contention is credible and consistent with his high probability of noise exposure during service as an aircraft mechanic. A layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board further finds that both the May 2016 VA opinion and March 2017 private opinion are entitled to limited probative weight, as both lack detailed supporting rationale, with the probative weight of the March 2017 opinion further limited by apparent lack of review of relevant evidence. Where the evidence is in relative equipoise, the claimant prevails; as such, entitlement to service connection for tinnitus is warranted. Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021); 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.102, 3.303. Increased Rating 2. Entitlement to an initial 10 percent rating based only on painful motion, but no higher, for service-connected right thumb strain is granted. 3. Entitlement to an initial rating higher than 10 percent for service-connected right thumb strain is denied. The Veteran seeks an initial compensable rating for his service-connected right thumb strain, which is rated under 38 C.F.R. § 4.71a, Limitation of Motion of Individual Digits, Diagnostic Code 5228. As discussed below, the Veteran's service-connected thumb strain affects his right hand, which is his major/dominant hand. Initially, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the diagnostic code 5228 was not amended. Also, diagnostic codes 5214 to 5215 for evaluating wrist conditions and diagnostic codes 5216 to 5230 for evaluating ankylosis or limitation of motion of single or multiple digits of the hand were not amended in the recent regulatory change. Under Diagnostic Code 5228, which provides rating criteria for limitation of motion of the thumb, as related to the dominant hand, a non-compensable rating is warranted for limitation of motion with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent rating is warranted for limitation of motion with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and 20 percent rating, the highest schedular rating, is warranted for limitation of motion with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Diagnostic Code 5224 is also potentially applicable. Under Diagnostic Code 5224, a 10 percent rating is warranted for favorable ankylosis of the thumb and a 20 percent rating is warranted for unfavorable ankylosis of the thumb. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. The Veteran was afforded a VA examination to assess the severity of his right thumb strain in January 2017. At the examination, the Veteran reported having right thumb pain and receiving steroid injections without much relief, and he denied experiencing flare-ups. Initial range of motion (ROM) testing revealed no gap between the right thumb and fingers, limited extension of the thumb at the interphalangeal and metacarpophalangeal joints, and painful motion with opposition of the thumb. There was no evidence of pain on passive ROM testing or in non-weight-bearing. Repetitive use testing revealed no additional loss of motion or function, and the examiner determined that neither pain, weakness, fatigability, nor incoordination significantly limited functional ability with repeated use over time. Because the Veteran did not report flare-ups, the examiner did not estimate the impact of flare-ups on ROM or functional ability. The Veteran had normal grip strength, no muscle atrophy, and no ankylosis. As for functional impairment, the examiner documented the Veteran's report of being limited in holding a weapon as a police officer and carrying heavy objects on his right thumb. The Veteran's treatment records document multiple thumb-related complaints shortly preceding and during the appeal period. In the months preceding the appeal period, the Veteran reported tenderness, pain, locking, popping, and clicking of the right thumb, and his provider, Dr. V.G., observed difficulty triggering his thumb, but no instability. See January 2016 to September 2016 Dr. V.G. Treatment Notes. His provider consistently assessed his right thumb condition as trigger thumb, indicated that releasing the thumb or additional injections could be necessary, and noted that x-rays of his hand demonstrated no fractures or osseous abnormalities. In January 2017, a different provider, Dr. J.W., submitted a letter separately documenting his trigger thumb diagnosis and his ongoing pain/discomfort. See January 2017 Dr. J.W. Treatment Note. In March 2017, Dr. J.W. observed that he sometimes had difficulty pinching with his index finger and thumb and was provided an injection for thumb pain. See March 2017 Dr. J.W. Treatment Note. Dr. J.W. further observed that he could fully open his hand, close his hand into a fist, oppose his thumb and index finger without any difficulty, had no obvious muscular wasting to the right hand, and had tenderness over the thumb A1 pulley. While Dr. J.W. also documented right index finger pain when posing the thumb and fingers, Dr. J.W. did not provide an index finger diagnosis and noted that etiology of his overall condition was unknown. The Board notes that, aside from the March 2017 Treatment Note, there is no other evidence detailing a right index finger condition, and, more generally, there is no evidence attributing any right index finger condition to the service-connected right thumb strain. The Veteran has similarly not alleged that he has a right index finger condition related to his service-connected right thumb strain. After review of the lay and medical evidence, the Board finds that an initial 10 percent rating for right thumb limitation of motion is warranted throughout the appeal period based on painful motion. While the Veteran's limitation of motion of his right thumb does not meet the criteria for a compensable rating under Diagnostic Code 5228, he has reported painful motion in opposing his right thumb in multiple instances preceding and during the appeal period, allowing for a minimum compensable rating. See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. at 208 (under 38 C.F.R. § 4.59, "Painful motion," states, in pertinent part, "[t]he intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."). A rating higher than 10 percent for right thumb limitation of motion is not warranted at any point during the appeal period, as there is no evidence of limitation of motion with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers. In making this conclusion, the Board is cognizant of the fact that the Veteran has used medication to treat his overall hand pain. The Court has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, however, there is no competent medical opinion, or other competent evidence, demonstrating that he would have limitation of function of the right thumb or long finger that would warrant higher or separate ratings but for the use of such medication. The Board has considered the applicability of other relevant diagnostic codes; however, as there is no evidence of right thumb ankylosis or other right hand conditions that are related to his service-connected right thumb strain, no other diagnostic codes are applicable. Accordingly, an initial 10 percent rating, but no higher, for right thumb limitation of motion is warranted throughout the appeal period, based only on painful motion. As there is no evidence of compensable limitation of motion, a rating higher than 10 percent is not warranted. REASONS FOR REMAND The Veteran seeks service connection for bilateral hearing loss. Per the May 2016 VA examination, he is diagnosed with bilateral sensorineural hearing loss for VA purposes. As discussed above, the Board recognizes that the Veteran had a high probability of in-service noise exposure in his MOS as an aircraft mechanic. The Veteran's service treatment records include several audiograms, including from December 1987, January 1988, January 1989, August 1990, October 1990, January 1991, May 1991, April 1992, and August 1992, which document multiple 15 dB threshold shifts during service. As to right ear threshold shifts, the Veteran's hearing, at 500 Hz, shifted from 0 to 15 dB between the October 1990 and January 1991 audiograms, and, at 1000 Hz, shifted from 0 to 15 dB between the April 1992 and August 1992. As to left ear threshold shifts, the Veteran's hearing, at 500 Hz, shifted from 0 to 15 dB between the January 1989 and August 1990 audiograms and between the October 1990 and January 1991 audiogram; at 4000 Hz, shifted from -5 to 10 dB between the January 1991 and May 1991 audiograms; and at 6000 Hz, shifted from -5 to 15 dB between the August 1990 and October 1990 audiograms. As discussed above, the May 2016 VA examination was obtained to assess the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The examiner determined that there was no permanent positive threshold of either ear during service and opined that the bilateral hearing loss was less likely than not caused by or a result of an event in military. In making this opinion, the examiner discussed the Veteran's enlistment and separation audiograms and noted that there was no shift in hearing seen in either ear, but also noted that there was a shift seen at 1000 Hz in the right ear at separation and stated that the shift "is not a frequency consistent with noise induced hearing loss." The examiner did not discuss any of the other in-service significant threshold shifts summarized above and did not explain why the shift at 1000 Hz in the right ear at separation was not a frequency consistent with noise-induced hearing loss. Separately, the examiner summarized a 2005 Institute of Medicine (IOM) study, stating that it found "no reasonable basis for delayed-onset hearing loss" in support of her opinion but also noting that "IOM did not rule out that delayed onset might exist." The Board finds the above May 2016 opinion inadequate as the examiner's rationale is improperly based on the Veteran's hearing being within normal limits upon discharge without addressing the in-service audiograms showing a range of threshold shifts that occurred between entrance and separation. Hensley v. Brown, 5 Vet. App. 155 (1993) (holding 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and his current disability). The Board finds the opinion further inadequate due to its conclusory nature, as the examiner dismissed the right ear threshold shift at 1000 Hz between enlistment and separation as not being of a frequency consistent with noise-induced hearing loss without explanation. On remand, the examiner should discuss any shift in hearing acuity throughout the Veteran's service, even if the hearing acuity does not meet the VA criteria for hearing loss, and discuss the November 2017 buddy statement that the Veteran had poor hearing and failed a hearing test during service. The fact the Veteran's hearing loss was normal at separation does not preclude service connection being granted for post-service hearing loss if it is, in fact, due to his in-service noise exposure The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from July 2021 to present. 2. Return the Veteran's claims file to the May 2016 VA examiner or another appropriate clinician if unavailable. After complete review of the claims file, specifically including the various in-service audiograms and the Veteran's buddy statement, the examiner should respond to the following: (a.) Is the Veteran's bilateral hearing loss at least as likely as not related to his active service, to include his MOS as an aircraft mechanic? In making this opinion, the examiner should discuss any shift in hearing acuity throughout the Veteran's service, even if the hearing acuity does not meet the VA criteria for hearing loss. The examiner is advised that a lack of in-service evidence is not a sufficient basis for a negative nexus opinion. All opinions must be accompanied by a rationale consistent with the evidence of record that specifically addresses the November 2017 buddy statement. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. If relying to any extent on the 2005 IOM study regarding delayed-onset, noise-induced hearing loss, the examiner must acknowledge that the study states the following: "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure." 3. Thereafter, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.