Citation Nr: A25035220 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240428-435014 DATE: April 16, 2025 ORDER Service connection for bilateral tinnitus is denied. Service connection for bilateral hearing loss is denied. A compensable rating for residuals status post fourth metacarpal healed fracture, right hand is denied. An earlier effective date prior to May 22, 2007, for service connection for residuals status post fourth metacarpal healed fracture, right hand is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (also claimed as anxiety and depression) is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's bilateral tinnitus began during active service or is otherwise related to an in-service injury or disease since the Veteran reported that tinnitus began in 2007, approximately 12 years after his active-duty service. 2. The evidence of record persuasively weighs against finding that the Veteran's bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran wore hearing protection during service when he worked on jet engines. 4. The Veteran reported the onset of his hearing loss was 2005-2007, which at least 10 years after he separated from active-duty service. 5. The Veteran is in receipt of a noncompensable rating, the maximum rating available under DC 5230 for limitation of motion of the ring finger. This disability is not so severe as to be equally well served with an amputation of his ring finger. 6. The Veteran first filed a claim for service connection for residuals status post fourth metacarpal healed fracture, right hand on May 22, 2007. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to a compensable rating for a residuals status post fourth metacarpal healed fracture, right hand, right ring finger disability, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5230. 4. The criteria for an earlier effective date prior to May 22, 2007, for the award of service connection for residuals status post fourth metacarpal healed fracture, right hand, right ring finger disability, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2023 and January 2024 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of 10/31/2023 (posttraumatic stress disorder and residuals status fourth metacarpal healed fracture, right hand) and 1/16/2024 (for bilateral hearing loss and tinnitus)-the dates of the rating decisions on appeal. See 38 C.F.R. §§ 20.301. If the Veteran submitted evidence that was added to the record after 10/31/2023 (posttraumatic stress disorder and residuals status fourth metacarpal healed fracture, right hand) and 1/16/2024 (for bilateral hearing loss and tinnitus), the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501. In the VA Form 10182, Notice of Disagreement, the Veteran also listed issues of entitlement to service connection for a left ankle condition, which was last denied in 2018, and service connection for residuals of a low back injury/condition, which was also last denied in 2018. Since those appeals are untimely because they are over a year after the date of those rating decisions, they are therefore not before the Board. That said, if the Veteran wishes to pursue entitlement to service connection for those conditions, he must first file a Supplemental Claim to reopen the claims and attach new and relevant evidence. 1. Service connection for bilateral tinnitus is denied. The Veteran contends that he is entitled to service connection for tinnitus. During service, the Veteran served as an Aviation Support Equipment Technician. At the February 2022 VA examination, the Veteran reported that the condition began in 2007 when he was watching T.V. with his wife and "heard it". See C&P Exam received 2/16/2022 at page 8. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, 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 (or within an applicable presumptive period) 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 bilateral tinnitus as evidenced by the February 2022 VA examination diagnosis. Tinnitus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. At the February 2022 VA examination, the Veteran reported the onset of his tinnitus was in 2007, which is 12 years after he separated from service in 1995, and therefore outside the presumptive period. 38 C.F.R. § 3.307. The Board also finds that the Veteran is competent to note the onset of his tinnitus being after service since tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (holding that a veteran is competent to testify of in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). The February 2022 VA examiner opined that it was less likely than not that the Veteran's tinnitus was related to inservice noise exposure since the Veteran's service records showed no significant hearing threshold shift greater than normal measurement variability from entrance to separation, there was no evidence of auditory damage during service, and the Veteran did not complain, nor was he diagnosed or treated for tinnitus during service. In November 2023, the Veteran was provided a VA medical opinion that considered any potential exposures during service since the Veteran had non-deployment related exposures in his MOS as an Aviation Support Equipment Technician and served in the Southwest Asia Theater of Operations during the Gulf War. See VA Memo received 1/27/2023. The November 2023 VA examiner opined that it was less likely than not that his toxic exposure risk activities (TERA) caused his tinnitus because medical literature did not support a causative relationship between his exposures in the Southwest Asia Theater of Operations and his MOS as an Aviation Support Equipment Technician with the development of tinnitus. The Board finds that the VA medical opinions are entitled to substantial weight since they are supported by adequate rationales and are consistent with the Veteran's medical history, lay testimony, and the record. Specifically, the Veteran reported that his tinnitus developed well after service in 2007. The Veteran also reported that he used hearing protection during his service. At the February 2022 VA examination, the Veteran's hearing in both ears were found to be normal although his speech discrimination results were indicative of hearing loss for VA purposes. A review of his service treatment records (STRs) also showed, as explained in the medical opinion, no significant threshold shifts from entrance to separation. Further, the Veteran also denied ear, nose, and throat trouble as well as hearing loss at his Report of Medical History at separation. See STR received 4/16/2008 at page 7. Accordingly, the Board finds that the competent and probative evidence of record is against service connection for tinnitus. 2. Service connection for bilateral hearing loss is denied. The Veteran contends that he is entitled to service connection for bilateral hearing loss. During service, the Veteran served as an Aviation Support Equipment Technician. At the February 2022 VA examination, the Veteran reported that his hearing loss began in 2005-2007, post service. See C&P Exam received 2/16/2022 at page 6. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, 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 (or within an applicable presumptive period) 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 bilateral hearing loss as evidenced by the February 2022 VA examination diagnosis. Hearing loss is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. At the February 2022 VA examination, the Veteran reported the onset of his hearing loss in 2005-2007, which is at least 10 years after he separated from service in 1995, and thus outside the presumptive period of one year. The February 2022 VA examiner opined that it was less likely than not that the Veteran's hearing loss was related to inservice noise exposure because his hearing was essentially within normal limits though he met the VA statutory definition for hearing loss since his speech recognition score was less than 92 percent. She further opined that the Veteran has been out of service for over 27 years, and considering the timeframe and relatively good word recognition score as well as the influence of age in auditory function, a nexus between his current hearing loss and service could not be established. A review of the record shows that the Veteran's service records showed no significant hearing threshold shift greater than normal measurement variability from entrance to separation. See C&P Exam received 2/16/2022 at page 9. Further, there was no evidence of auditory damage during service since the Veteran did not complain, nor was he diagnosed or treated for hearing loss during service. In November 2023, the Veteran was provided a VA medical opinion that considered any potential exposures during service since the Veteran had non-deployment related exposures in his MOS as an Aviation Support Equipment Technician and served in the Southwest Asia Theater of Operations during the Gulf War. See VA Memo received 1/27/2023. The November 2023 VA examiner opined it was less likely than not that his toxic exposure risk activities (TERA) caused his hearing loss because medical literature did not support a causative relationship between his exposures in the Southwest Asia Theater of Operations and his MOS as an Aviation Support Equipment Technician with the development of hearing loss. The Board finds that the VA medical opinions are entitled to substantial weight since they are supported by adequate rationales and are consistent with the Veteran's medical history, lay testimony, and the record. Specifically, the Veteran reported that his hearing loss developed well after service in 2005-2007. The Veteran also reported that he used hearing protection during his service. At the February 2022 VA examination, the Veteran's hearing in both ears were found to be normal although his speech discrimination results were indicative of hearing loss for VA purposes. A review of his service treatment records (STRs) also showed, as explained in the examination report, no significant threshold shifts from entrance to separation. Further, contemporaneous service medical reports also support that his hearing loss did not occur in service since he denied ear, nose, and throat trouble as well as hearing loss at his Report of Medical History at separation. See STR received 4/16/2008 at page 7. Accordingly, the Board finds that the competent and probative evidence of record is against service connection for hearing loss, and it is therefore denied. 3. A compensable rating for residuals status post fourth metacarpal healed fracture, right hand is denied. 4. An earlier effective date prior to May 22, 2007, for service connection for residuals status post fourth metacarpal healed fracture, right hand is denied. The Veteran asserts that he is entitled to a compensable rating and an earlier effective date for his residuals status post fourth metacarpal healed fracture (ring finger). At the February 2022 VA examination, the Veteran reported intermittent sharp right-hand pain that radiates to the fingers and wrist. The Veteran states that this symptom is worse in the morning but goes away during the day. By way of background, in the October 2023 Rating Decision, the RO found that the denial of his service connection claim for his right finger was clear and unmistakable error and granted him service connection for the right finger residuals effective May 22, 2007, the date he first filed a claim for service connection. The Veteran was granted a noncompensable rating, which is the highest rating for his right finger residuals under DC 5230. In his VA Form 10182, the Veteran disagreed with the evaluation and effective date for his right finger residuals. Increased Rating Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. 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 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (the claimant is entitled to the benefit-of-the-doubt when competing evidence is in "approximate balance" or "nearly equal"; exact equipoise is not required to trigger the favorable benefit-of-the-doubt rule). The Veteran contends his right ring finger disability warrants a compensable rating. The Veteran's right ring finger disability is currently rated noncompensable under Diagnostic Code (DC) 5230. 38 C.F.R. § 4.71a, DC 5230. Under DC 5230, any limitation of motion for the ring or little finger is rated as noncompensable for either the major or minor hand. Similarly, under DC 5227, unfavorable or favorable ankylosis of the ring or little finger is rated as noncompensable for either the major or minor hand. 38 C.F.R. § 4.71a, DC 5227. Under the VA's Schedule for Rating Disabilities, a compensable rating for a ring finger disability requires amputation. See 38 C.F.R. § 4.71a, DC 5155. Under DC 5155, amputation of the ring finger, a 10 percent rating is warranted for amputation of the ring finger on the major or minor hand, without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. Id. It is noted that single finger amputation ratings are the only applicable ratings for amputations of whole or part of single fingers. Id. at Note. In order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis. See Note (3)(i) preceding 38 C.F.R. § 4.71a, DC 5216, unfavorable ankylosis of five digits of one hand. In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and proximal interphalangeal joints either in extension or full flexion or with rotation or angulation of a bone. Id. Note (3)(ii) explains that if both the metacarpophalangeal and proximal interphalangeal joints of a digit were ankylosed, it should be evaluated as unfavorable ankylosis even if each joint was individually fixed in a favorable position. Note (3)(iii) indicates that if only the metacarpophalangeal or proximal interphalangeal joints were ankylosed and there was a gap of more than 2 inches (5.1 cm) between the fingertips and the proximal transverse crease of the palm, with the fingers flexed to the extent possible, the condition should be evaluated as unfavorable ankylosis. The Veteran was provided a VA examination in February 2022. At the examination, the Veteran was diagnosed with residuals healed fourth metacarpal fracture, right. The Veteran reported intermittent sharp pain that radiates to the fingers and hand. The Veteran reported no flare-ups of the hand, finger or thumb. The Veteran described his functional loss as difficulty typing and with heavy lifting. Regarding his right finger, the Veteran's Active Range of Motion (ROM) for flexion endpoint was outside the normal range: MCP measured 75 degrees, PIP measured 85 degrees, and DIP measured 55 degrees. The Veteran's ring finger exhibited pain on active motion, passive motion, and the VA examiner found that it caused functional loss. The Veteran used a brace for his right hand regularly. Importantly, the Veteran had no muscle atrophy and no ankylosis of any finger including his service-connected right hand ring finger. An x-ray showed no acute findings and showed the fourth metacarpal healed fracture. Reviewing the evidence described above, the Board finds no higher rating is available for the Veteran's disability under DC 5230. The Veteran is already in receipt of a noncompensable rating, the maximum rating available under DC 5230 for any limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71a, DC 5230. Although a noncompensable rating is the maximum rating available for disability of the ring finger under DC 5230, the Board must consider the assignment of an increased rating under other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). There is, however, no indication of ankylosis, and therefore DC 5227 is inapplicable. Even with evidence of ankylosis, DC 5227 would not provide a compensable rating. A compensable rating for the fourth finger disability requires amputation. See 38 C.F.R. § 4.71a, DC 5155. There is no evidence here of amputation of the ring finger, and thus, no compensable rating is possible. The Board is also cognizant that the Veteran has reported experiencing pain in his right ring finger. Unfortunately, the Veteran cannot be compensated for painful motion under DC 5230. For a painful joint, a Veteran can be awarded at least the minimum compensable rating. See 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 5. But a higher rating for pain is not available under DC 5230 because there is no minimal compensable rating. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) ("Reading § 4.59 in conjunction with [Diagnostic Code] 5230, [the veteran] is not entitled to a compensable rating under this [code]."). The Board also acknowledges that complaints of pain in and of themselves would not necessarily demonstrate the presence of a disability for the purposes of awarding service connection; however, where the evidence shows that the pain reaches the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). This conclusion allowed VA to consider a Veteran's reports of pain when determining the existence of a disability for VA purposes pursuant to 38 U.S.C. § 1110, in the absence of a diagnosed condition. However, here, the Veteran is already service connected for a right ring finger disability. Thus, the Saunders holding is inapplicable in this case. Further, the level of functional impairment due to symptoms including pain is taken into consideration when evaluating service-connected disabilities. See 38 C.F.R. §§ 4.10, 4.59. As previously noted, the Board has considered the Veteran's reports of pain pertaining to his right ring finger; however, under DC 5230, the maximum schedular rating available is zero percent, regardless of the presence of pain. Accordingly, a compensable rating for residuals of the right finger is denied. Earlier effective date Generally, the effective date for the grant of a benefit will be the day following separation from active service or the date entitlement arose if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the Veteran first filed for service connection for a right-hand injury on May 22, 2007. In the October 2023 rating decision, the RO explained that his service records showed a fractured ring finger and therefore the denial of the claim going back to when he first filed in May 2007 was clear and unmistakable error. Therefore, the RO granted service effective the date it was first claimed, May 22, 2007. Accordingly, since May 22, 2007, was the date it was first claimed, no earlier effective date is possible. Therefore, an earlier effective date prior to May 22, 2007, for the Veteran's ring finger residuals of the right hand is denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS FOR REMAND Entitlement to service connection for posttraumatic stress disorder (also claimed as anxiety and depression) is remanded. The Veteran contends that he has a current diagnosis of posttraumatic stress disorder (PTSD) that was caused by a sexual assault while in bootcamp. At the September 2022 VA examination, the Veteran described racist language and Military Sexual Trauma (MST). He reported "having (an) event (where) some guys grabbed me and raped me 1991 in bootcamp in San Diego". See C&P Exam received 9/27/2022 at page 3. Since the Board has identified a pre-decisional duty to assist error, the Board will direct that this matter be remanded to the Agency of Original Jurisdiction. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Claims of service connection for PTSD require a medical diagnosis conforming to the requirements of 38 C.F.R. § 4.125(a), an in-service stressor accompanied by credible supporting evidence that the stressor claimed to be the cause of the disorder occurred in service and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); see also 38 C.F.R. § 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In claims with stressors based on personal assault, evidence from various sources may be used to corroborate the stressor, including evidence of behavioral changes following the claimed assault. 38 C.F.R. § 3.304(f)(5); see also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (stating that medical opinion evidence can be used to corroborate the claimed stressor in personal assault cases). Here, the Board finds that the VA medical opinion that found the Veteran had no mental health symptoms, and no mental health treatment is not probative since it is based on inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (stating that a medical opinion based on an inaccurate factual premise has no probative value). A review of the Veteran's Capri records shows that he tried multiple times to establish care with the Mental Health unit although he did not show up to scheduled sessions. Importantly, a review of the record showed that the Veteran tested positive for PTSD in 2022. Given that the September 2022 VA examiner based her opinion that the Veteran had no mental health disorder on the fact that he had no treatment or symptoms of a condition, and did not account for the positive screen for PTSD nor his attempts to establish mental health care, the Board finds that the September 2022 VA examiner opinion was based on an inaccurate factual premise. Since a medical opinion based on an inaccurate factual premise is not probative, the Board will remand this claim for a new VA medical opinion that considers the Veteran's mental health history. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's claimed PTSD is at least as likely as not related to inservice MST incident. If necessary, provide the Veteran with a new VA examination and medical opinion that considers his attempts to secure mental health treatment and his positive PTSD screening in 2022. D. SMART Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon 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.