92 Decision Citation: BVA 92-29515 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-00 944 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable rating for residuals of a right knee injury. 4. Entitlement to a compensable rating for a flexion con- tracture of the right little finger. 5. Entitlement to a compensable rating for a flexion con- tracture of the left little finger. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from February 1983 to February 1989. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a December 1989 rating decision by the Fort Harrison, Montana, Regional Office (RO) of the Depart- ment of Veterans Affairs (VA). The notice of disagreement was received on December 18, 1990; this notice was initially held to be not timely but a hearing officer held on May 3, 1991, that the timeliness requirement had in fact been satisfied. A statement of the case was issued on June 4, 1991. The veteran is also appealing a rating decision of May 24, 1991, which denied service connection for tinnitus. A notice of disagreement with this determination was received on June 27, 1991, and a statement of the case on this issue was issued on August 1, 1991. The veteran testified at a hearing on appeal on November 1, 1991; by a decision dated January 2, 1992, the hearing officer confirmed and continued the denial of the claim for service connection for tinnitus. The case was received at the Board on February 27, 1992, and docketed on March 2, 1992. The file was referred to the veteran's representative, The American Legion, on March 2, 1992; an additional written presentation dated April 27, 1992, was subsequently received from that organization. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has bilateral defective hearing and tinnitus as a result of exposure to high noise levels in service without sufficient ear protection. He claims that he was exposed to construction noise in a shipyard and that when his boat was commissioned his berthing area was near a fan which produced constant noise. He claims that a hearing loss was shown on his military discharge examination. He complains that he has difficulty understanding his instructor in class and that he has difficulty separating speech from background noise. With respect to his service-connected disabilities, he argues that a 10 percent rating should be assigned for his right knee since the knee becomes painful during everyday activity such as climbing stairs, walking and bending. He states that every time he bends the knee it pops and he feels something moving around. He states that he should receive a 10 percent rating for each of his little fingers. He states that it is hard for him to type due to the bends in the fingers, making it difficult to complete projects in the area of art, such as ceramics, graphic design and drawing. DECISION In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review of all evidence and material of record in the claims file, and for the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence of record is against the claims for service connection for bilateral defective hearing and tinnitus. It is the further decision of the Board that a preponderance of the evidence is against the claims for compensable ratings for flexion contractures of the right and left little finger and that a preponderance of the evidence supports the assignment of a 10 percent rating for residuals of a right knee injury. FINDINGS OF FACT 1. The RO has assembled the evidence required for proper adjudication of the issues on appeal. 2. Defective hearing was not documented in either ear during service and has not been demonstrated since separation. 3. Tinnitus was not documented during service; any current tinnitus is not shown to be related to military service. 4. Residuals of a right knee injury consist of complaints of pain with evidence of painful motion and function. 5. The veteran has chronic contracture of the little finger of both hands at the proximal interphalangeal joints, worse on the right. 6. Functional impairment equivalent to amputation of either finger has not been demonstrated. CONCLUSIONS OF LAW 1. The veteran does not have bilateral defective hearing as a result of disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. §§ 1131, 5107(a), 7104 (West 1991); 38 C.F.R. § 3.385 (1991). 2. The veteran does not have tinnitus as a result of disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. §§ 1131, 5107(a), 7104 (West 1991). 3. The criteria for a 10 percent rating for residuals of a right knee injury are met. 38 U.S.C.A. §§ 1155, 5107(a), 7104 (West 1991); 38 C.F.R. §§ 3.102, 4.7, 4.40, and Part 4, Code 5257 (1991). 4. The criteria for a compensable rating for a flexion contracture of the right little finger are not met. 38 U.S.C.A. §§ 1155, 5107(a), 7104 (West 1991); 38 C.F.R. Part 4, Codes 5156, 5227 (1991). 5. The criteria for a compensable rating for a flexion contracture of the left little finger are not met. 38 U.S.C.A. §§ 1155, 5107(a), 7104 (West 1991); 38 C.F.R. Part 4, Codes 5156, 5227 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the claims raised by the veteran are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) in that each is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78 (1990). We find further that the statutory obligation of the Department of Veterans Affairs to assist in the development of the evidence to support well-grounded claims has been satisfied. I. Bilateral Defective Hearing Service connection may be granted for a disability which is shown to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991). Organic diseases of the nervous system (including sensorineural defective hearing) are included among the disorders enumerated by statute as eligible for a grant of service connection on a presumptive basis if found to be manifest to a degree of 10 percent or more within one year after separation. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1991). For defective hearing, service connection may be granted for impairment at the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz, as measured by pure tone and speech recognition criteria. However, a veteran's hearing status may not be considered service connected when the thresholds at these frequencies are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC test are 94 percent or better. 38 C.F.R. § 3.385 (1991); effective on and after May 3, 1990. For a number of years before May 3, 1990, a VA adjudication manual contained a substantially equivalent nonregulatory standard for estab- lishing service connection for defective hearing. VA Manual M21-1, § 50.11. The veteran underwent electronic testing of hearing acuity as part of a preservice examination in March 1982, at an examination for submarine duty in August 1983, and on an examination for separation in February 1989. On each of these occasions, the pure tone thresholds at all frequencies from 500 to 4,000 hertz were 25 decibels or lower. A thresh- old of 20 hertz was reported in the right ear at 500 hertz at separation; all other thresholds at all frequencies below 6,000 hertz in both ears were 20 or lower. All pure tone thresholds reported at the relevant frequencies at the VA examination of September 1989 were 20 or lower. The pure tone thresholds were considered to be consistent with "VA criteria for hearing within normal limits." The record does not substantiate the veteran's contention that defective hearing was present during service or that he has an abnormal hearing deficit at the present time. It should be noted that the VA testing in September 1989 did not include an assessment of speech discrimination ability, either through the Maryland CNC test or any other test; the failure of the examiner to perform such testing is unfortu- nate, given that the veteran's complaints focused primarily on inability to understand speech, especially in a noisy environment. A reviewing VA audiologist recommended that the audiology tests be repeated to include speech discrimination testing, but this action was never done. Since the pure tone thresholds were within normal limits and since more than three years have elapsed, a current audiological study to assess speech discrimination ability alone would serve no useful purpose. A finding that speech discrimination scores are abnormal at the present time would not invalidate the September 1989 scores. The Board finds that the positive evidence in this case is outweighed by the negative evidence and that the record provides no basis for the granting of service connection for hearing impairment in either ear. II. Tinnitus The veteran claims that he has more or less constant tinnitus as the result of noise exposure during service. Service medical records do not specifically document complaints of tinnitus or exposure to acoustic trauma. The veteran's certificate of release from active duty confirms that he had submarine duty but provides no direct evidence of acoustic trauma. The only evidence tending to link the veteran's current complaints of tinnitus with military service is his own uncorroborated statement concerning the onset of the dis- order. However, the absence of complaints in service medical records or at separation is strong evidence that the disorder did not in fact exist at that time. Likewise, the veteran did not complain of either defective hearing or tinnitus at separation. He did not claim service connection for tinnitus on his initial application for VA compensation. He claims that he considered tinnitus to be part of the "hearing loss" complained of on the application, but he made no complaint of tinnitus at the VA examination of September 1989; his hearing-related complaint was limited to inability to hear or distinguish what was being said. The absence of a complaint of tinnitus at the examination is strong evidence refuting the claim that any current tinnitus was present at that time. The Board finds that, with respect to this issue, the nega- tive evidence outweighs the positive evidence and that the record does not provide an adequate basis for an allowance of the appeal as to this issue. III. Residuals of a Right Knee Injury Service medical records show that, in January 1986, the veteran was seen for complaints of pain in the right knee. He reported that the pain had begun a week and a half earlier and that he had felt a crunch the day before on walking or going up or down stairs. During the preceding weeks he had been running three miles per day. The symptoms were attrib- uted to a cartilage tear and the knee was immobilized for 10 days. The veteran was seen in November 1986 for right knee pain, again after running. There was slight swelling and the knee caught when he bent over. The assessment was overuse. Medication and an ice massage twice per day were prescribed. In December 1986 the veteran was seen for right knee pain after striking the knee on a hatchway. The assessment was patellar contusion with minimal effusion. On examination by VA in September 1989 the veteran complained of pain in the right knee which caused a restriction on activity. He walked without an obvious limp. There was a full range of motion of the knee. The veteran was able to do a deep knee bend, though with crepitation and slight discomfort in the knee. There was a questionably positive drawer sign of the right knee. X-rays were negative. The diagnosis was recurrent post-traumatic right knee pain. Service connection for residuals of a right knee injury was granted by a rating decision of December 1989 and a noncompensable rating was assigned under Code 5257 of the 1945 VA Schedule for Rating Disabilities. Under that code, a 10 percent rating is assignable for slight impairment of the knee, including recurrent subluxation or lateral insta- bility. 38 C.F.R. Part 4, Code 5257 (1991). A 10 percent rating may also be assigned for limitation of flexion to 45 degrees or limitation of extension to 10 degrees. 38 C.F.R. Part 4, Codes 5260, 5261 (1991). The absence of limitation of motion precludes the assignment of a compensable rating under either of the limitation of motion codes. However, it is objectively shown that the veteran has some functional loss on movement of the knee. A 10 percent rating is potentially assignable based on slight knee impairment under Code 5257, and there is a notation of crepitus. Under VA regulations, weakness and pain are relevant considerations in the assignment of disability ratings. 38 C.F.R. § 4.40 (1991); see also Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The clinical findings show that there is more than minimal symptomatology and that a basis for assignment of a compensable rating under 38 C.F.R. § 4.40 has been presented. The Board finds that the slight impairment required for a 10 percent rating under Code 5257 has been demonstrated. IV. Flexion Contractures of the Right and Left Little Fingers The presence of bilateral flexion contractures involving the proximal interphalangeal joints of both little fingers was noted on the report of examination at separation from service. Service records contain no other reference to complaints or findings regarding the contractures. Service connection was granted by a rating decision of December 1989 and a separate noncompensable rating was assigned for each hand under Diagnostic Code 5227 of the rating schedule. Under Code 5227, a noncompensable rating is provided for ankylosis (complete bony fixation) of any finger other than the thumb, index finger, or middle finger. 38 C.F.R. Part 4, Code 5257 (1991). However, a 10 percent rating may be assigned for impairment equivalent to amputation of a little finger of either the major or minor extremity, without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. 38 C.F.R. Part 4, Code 5256 (1991). At the VA examination of September 1989, the veteran com- plained of numbness in the left fingers with loss of strength. There was chronic contracture of the little fingers of both hands, the right worse than the left, at the proximal interphalangeal joints. The examiner commented that there was no typical palmar band or chord thickening as noted in typical Dupuytren's contractures. X-rays showed no abnormality of either hand other than a flexion deformity of each of the little fingers at the proximal interphalangeal joint. The contractures of the little fingers are not shown to result in significant limitation of function of the hand. In any case, abnormality of a little finger is compensable under the code only if the resulting disability is equivalent to amputation of the finger. No limitation of motion is shown; even if it were, and even if the restriction of move- ment was severe enough to constitute ankylosis, the code does not provide a compensable rating for ankylosis of this finger. Consequently, the requirements for a compensable rating clearly are not met or approximated. 38 C.F.R. § 4.7. Similarly, no circumstances warranting the assignment of a compensable rating for either hand without regard to the schedular standards are shown. 38 C.F.R. § 3.321(b). ORDER Service connection for bilateral defective hearing and tinni- tus is denied. Compensable ratings for flexion contractures of the right and left little finger are denied. A 10 percent rating for residuals of a right knee injury is granted subject to the regulations controlling disbursement of VA monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 STEPHEN L. WILKINS U. H. ANG, M.D. DANIEL J. STEIN NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.