Citation Nr: A25035118 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240415-433055 DATE: April 16, 2025 ORDER Entitlement to service connection for a left hand/thumb disability is denied. Entitlement to service connection for a left wrist disability is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran does not have a current left hand/thumb disability that is related to service. 2. The Veteran does not have a current left wrist disability that is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hand/thumb disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left wrist disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to January 1973. These matters were denied in a March 2024 rating decision. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. Regarding the issues the Board is remanding, any such evidence will be considered by the AOJ on remand. Regarding the issues the Board is deciding, if the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the related claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. 1. Entitlement to service connection for a left thumb disability is denied. 2. Entitlement to service connection for a left wrist disability is denied. The Veteran contends that he has degenerative joint disease of the left thumb and wrist that is related to an in-service injury. Following review of the evidentiary record, service connection for both claims must be denied. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show: (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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis (i.e., degenerative joint disease, claimed here). See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Turning to the evidence, the Veteran's service treatment records show complaints of a left hand injury in June 1971. Records show a prior left first metacarpal injury in 1971, which is noted as well healed in December 1971. Records also show treatment for lacerations to the left thumb in January 1972. Service records do not show another left hand injury, but do contain evidence of right hand injuries, which the Veteran's representative suggests may be the Veteran's actual claim. The record contains no reported left wrist complaints in service. Initially, the Board notes that the representative's assertion that the Veteran's claim application is unclear regarding the hand and wrist for which he is seeking service connection is not supported by the record. The Veteran clearly stated "left" for both his hand/thumb claim and his wrist claim in his VA Form 21-526EZ. Moreover, although injuries to the right upper extremity are noted in service, so, too, are injuries to the left upper extremity. Thus, in-service discussion of the right upper extremity does not render the Veteran's claim unclear. Regardless, the record contains no contentions or evidence relating to a current disability, beyond the Veteran's claim application. The Veteran has not described pain or other functional impairment, and the record contains no medical evidence of treatment for or a diagnosis of any condition relating to the left or right hand or wrist. Although the Veteran described his conditions as degenerative joint disease, he has not been shown to possess the medical expertise to diagnose that condition, and he has not identified any outstanding treatment records or noted that he was diagnosed with that condition by a clinician. The record requires competent evidence of a current disability or persistent or recurrent symptoms of a disability to warrant a VA examination or nexus opinion, and such is not present in this case. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board concludes that the Veteran does not have a current diagnosis of left hand/thumb or left wrist degenerative joint disease, or similar disability causing functional impairment of earning capacity, nor has he had such a disability at any time during the pendency of 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). In the absence of a current disability, to include symptoms causing functional impairment of earning capacity, service connection is not warranted. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that the term disability "refers to the functional impairment of earning capacity, not the underlying cause of said disability"); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020) (concluding the holding in Saunders extends beyond pain, "to include other manifestations of a condition without a diagnosis"); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020) (reiterating that "to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity . . ."). While the record shows the Veteran had in-service problems with his left thumb and hand, a current disability is still necessary to establish service connection, and the Veteran must, at the least, explain the impairment he is experiencing, or point VA to records that do so. Based on the information currently of record, the evidence is persuasively against these claims for service connection, the benefit of the doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. 2. Entitlement to service connection for right ear hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. A January 2024 VA audiological examination found current diagnoses of bilateral hearing loss and tinnitus. The examiner opined that the Veteran's hearing loss was less likely than not incurred in or caused by his in-service noise exposure because there was no evidence of a permanent positive threshold shift of 15dB at any frequency during service. The examiner referenced a 1971 audiogram, a January 1973 audiogram, and a December 1976 audiogram. She described the December 1976 audiogram as the enlistment examination. She also opined that the Veteran's tinnitus was less likely than not incurred in or caused by service in part due to lack of evidence of auditory damage in service based on those same audiograms. However, the examiner failed to address the Veteran's April 1969 entrance audiogram, which, when compared to the Veteran's audiogram from the time of separation from active duty in January 1973, appears to show multiple 15 dB positive threshold shifts. Given the above, the opinions on hearing loss and tinnitus are inadequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Reonal v. Brown, 5 Vet. App. 458 (1993) (opinions based on inaccurate factual premises are entitled to no probative weight). The AOJ erred in failing to obtain an addendum opinion prior to deciding the claims. On remand, this error must be corrected by obtaining opinions that accurately assess the Veteran's in-service hearing results. The matters are REMANDED for the following action: Forward the record and a copy of this remand to a suitably qualified examiner for completion of addendum opinions. The examiner must review the record on appeal and consider any lay statements of the Veteran. The examiner must offer opinions as to whether the Veteran's right ear hearing loss, left ear hearing loss, and tinnitus are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) incurred in or caused by in-service noise exposure. The examiner must address the Veteran's April 1969 entrance examination and compare it to the January 1973 audiogram, and discuss the relevance of any threshold shifts. If any additional information is deemed necessary for adequate opinions, an additional examination should be performed. A complete rationale must accompany any conclusion reached. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.