Citation Nr: 18160645
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-38 352
DATE:	December 27, 2018
ORDER
An effective date earlier than October 14, 2013, for a grant of service connection for bilateral hearing loss, is denied.
An effective date earlier than October 14, 2013, for a grant of service connection for tinnitus, is denied.
Service connection for respiratory conditions, to include lung and breathing disorders (respiratory condition), is denied.
An initial, increased 20 percent rating for left hand degenerative arthritis, status post old fracture deformity distal tuft third digit, and third, fourth, and fifth metacarpals (left hand disability) is granted.
An initial rating in excess of 30 percent for bilateral hearing loss is denied.
An initial rating in excess of 10 percent for bilateral tinnitus is denied.
REMANDED
The claim for an entitlement to an earlier effective date for the grant of service connection for a left hand disability is remanded.
FINDINGS OF FACT
1. The earliest effective date for an award of service connection for bilateral hearing loss is October 14, 2013.
2. The earliest effective date for an award of service connection for tinnitus is October 14, 2013.
3. The evidence of record has not shown a current diagnosis of a respiratory disability.
4. Resolving all reasonable doubt in favor of the Veteran, his left hand disability is manifested by a limitation of motion of the thumb, with a gap of 1 inch between the thumb pad and the fingers, but with functional loss on repeated use and flare-ups, due to pain, weakness, fatigability or incoordination beyond that reflected in range of motion measurements.
5. The Veteran’s bilateral hearing loss is manifested by a puretone threshold average of no higher than 63 decibels for the right ear, and 75 decibels for the left ear; with a speech discrimination scores that are not less than 76 percent for the right ear, and 76 percent for the left ear, using the Maryland CNC word list.
6. A rating in excess of 10 percent for bilateral tinnitus is precluded by VA law.
CONCLUSIONS OF LAW
1. The criteria for an effective date earlier than October 14, 2013, for a grant of service connection for bilateral hearing loss, have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017).
2. The criteria for an effective date earlier than October 14, 2013, for a grant of service connection for tinnitus have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017).
3. The criteria for service connection for a respiratory condition have not been met.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017).
4. The criteria for a 20 percent rating for a left hand disability have been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5228 (2017).
5. The criteria for an initial rating in excess of 30 percent for bilateral hearing loss have not been met.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100 (2017).
6. A 10 percent rating for tinnitus is the maximum rating available under VA law.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, DC 6260.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1962 to September 1966.
This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
Effective Date for Bilateral Hearing Loss and Tinnitus
The Veteran requests that his award of service connection for bilateral hearing loss and tinnitus be retroactively applied to five years prior because he attempted to obtain treatment eight years earlier, but was reportedly denied treatment at a VA facility in Oklahoma, due to his income.
Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  
Furthermore, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (the Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012, thereby amending 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013, through August 5, 2015.  Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim.
The evidence of record reflects that the Veteran filed an original, fully developed claim for bilateral hearing loss on October 14, 2014.  Although the Veteran did not expressly file a fully developed claim for tinnitus, the RO liberally construed the Veteran’s fully developed claim for bilateral hearing loss to include a fully developed claim for tinnitus, when it granted the claims with an effective date of October 14, 2013.  
The evidence has not shown, nor has the Veteran asserted, that he filed a claim for bilateral hearing loss and tinnitus at any time prior to October 2014.  Thus, the Board finds that the Veteran’s claims for bilateral hearing loss and tinnitus were filed as original, fully developed claims between the period of August 6, 2013 and August 5, 2015, with satisfactory evidence that both disabilities existed for one year, prior to the October 14, 2014 submission date of the claim.  In this regard, the effective date of the award is one year prior to submission of the claims for bilateral hearing loss and tinnitus, pursuant to the Act.  Thus, the earliest, possible effective date of the award of the service connection claims for bilateral hearing loss and tinnitus is October 14, 2013.
Although the Board acknowledges and is sympathetic about the Veteran’s difficulties with seeking treatment at a VA facility eight year prior, granting an earlier effective date for the award of the service connection claims for bilateral hearing loss and tinnitus is precluded by law.  Therefore, the award of the service connection claims of bilateral hearing loss and tinnitus, at an effective date earlier than October 14, 2013, must be denied. 
Service Connection for a Respiratory Disability 
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017).  That determination requires a finding of current disability that is related to an injury or disease in service.  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2017).
The Veteran asserts that his condition relating to his lung and breathing issues is related to his service as a “Black Water Marine”, when he served on active duty off the coast of South Vietnam.
However, the medical evidence of record does not reflect a current diagnosis of a respiratory condition.  Therefore, the service connection claim for a respiratory condition must be denied.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “[i]n the absence of proof of a present disability there can be no valid claim.”).
Increased Rating
Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating applies.  38 C.F.R. § 4.7 (2017).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).
1. Left Hand Disability
In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40 (2017).  With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45 (2017).  
These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion.  DeLuca v. Brown, 8 Vet. App. 202, 206 – 07 (1995).  However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion.  See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss.  Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion.  However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45.  Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2017).  As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).
The Veteran has been assigned a 10 percent disability rating for his service-connected left hand disability, under DC 5010 - 5228.  38 C.F.R. § 4.71a (2017).  As applied here, hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code.  38 C.F.R. § 4.27 (2017).  In this particular case, the first set of four digits, 5010, is the diagnostic code for arthritis, due to trauma, substantiated by X-ray findings; whereas the second set of four digits after the hyphen, 5228, is the diagnostic code used to rate the residuals of limitation of motion for the thumb.  Id.
Under DC 5010, traumatic arthritis is to be rated as degenerative arthritis under DC 5003.  38 C.F.R. § 4.71a (2017).   Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a (2017).  When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  Id.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating.  The above ratings will not be combined with ratings based on limitation of motion.  Id.
Under DC 5228, a 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, DC 5228.  
An August 2015 disability benefits questionnaire (DBQ) reflects that the Veteran has degenerative arthritis of the left hand; old fracture deformity distal third digit of the left hand; and old fracture deformities of the left hand, third, fourth and fifth metacarpals.
At this examination, the Veteran reported having flare ups of the left hand, finger or thumb joints, which he described as constant pain and loss of function, and an inability to tie shoes, button shirts, etc.  Further, he described the overall functional impairment of his left hand as constant pain and loss of function; as well as pain at night, interrupting his sleep. 
The DBQ reflects that on initial range of motion testing, the left hand was abnormal or outside of normal range.  The gap between the pad of the thumb and fingers, measured at 1cm.  The DBQ further notes that range of motion itself contributed to a functional loss due to pain, which was noted on examination.  Additionally, the DBQ notes that range of motion of the finger flexion exhibited   pain; and that there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.
On observed repetitive use testing, which the Veteran was able to perform, there was no additional functional loss or range of motion after three repetitions.  However, the Veteran was examined immediately after repetitive use over time, and the DBQ notes that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time.  According to the DBQ, factors causing functional loss included pain, fatigue, and weakness, although this could not be described in terms of range of motion.
The DBQ additionally reflects that the examination was conducted during a flare-up, and that pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups.  Factors causing functional loss included pain, fatigue, and weakness, although this could not be described in terms of range of motion.
The DBQ further notes that there are additional contributing factors of the left hand disability, which the VA examiner identified as less movement than normal due to ankylosis, adhesions, etc., although he noted that the Veteran does not have ankylosis; as well as and weakened movement due to muscle or peripheral nerves injury, etc., although injury in the peripheral nerves was not noted.  Further, in addition to identifying the diagnoses that are associated with the left hand disability, the VA examiner also described the severity of the Veteran’s left hand disability as moderate to advanced osteoarthritis, mainly at the first carpal/metacarpal articulation.
No other treatment records have been associated with the claims file.  Thus, this VA examination is the only probative evidence that is reflective of the severity of the Veteran’s left hand disability.  In this regard, the evidence of record has not shown limitation of motion for the left thumb with a gap of more than 2 inches (5.1cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, and thus, a 20 percent rating, under DC 5228 is not warranted.  Additionally, there is no X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, to warrant a 20 percent rating, under DC 5003.  
Notwithstanding, the Board finds that the evidence is in at least relative equipoise and resolving all reasonable doubt in favor of the Veteran, a 20 percent rating is warranted, based on function loss due to which pain, weakness, fatigability or incoordination, with repeated use over time, during flare-ups, and beyond that reflected in range of motion measurements.  38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206 – 07.  Additionally, the functional impairment of the left hand disability is characterized by constant pain and loss of function, in which the overall impairment affects normal working movements of the left hand in terms of excursion, strength, coordination, and endurance. Thus, a rating that is no higher than the maximum, allowable 20 percent rating, is warranted.
The Board has also considered whether separate, additional ratings are available for the Veteran’s left thumb disability.  However, the probative medical evidence has not shown that the Veteran has ankylosis of the left thumb or index finger, for a separate additional rating under DC 5224 or DC 5225, and or any other disability that may be related to the service-connected left hand disability.  Therefore, no separate, additional ratings are available for the left thumb disability under any other diagnostic codes.  Accordingly, based on the foregoing reasons, an increased 20 percent rating for the left hand disability is granted.
2. Bilateral Hearing Loss 
The Veteran is currently rated at 30 percent for his service-connected bilateral hearing loss.
Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 (2017).  In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  
Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  38 C.F.R. § 4.85, DC 6100.  
The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness.  See id.  VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  Id.  Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test.  
An August 2015 VA examination reflects audiometric findings from an audiological examination.  On audiometric testing, puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 70dB at 2000Hz; 75dB at 3000Hz; 80dB at 4000 Hz, with an average puretone threshold of 62.5dB (rounded off to 63dB).  Puretone thresholds for the left ear, in dB, were 30dB at 1000Hz; 70dB at 2000Hz; 95dB at 3000Hz; and 105dB at 4000Hz, with an average puretone threshold of 75dB.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 76 percent in the left ear.  Applying these results to Table VI in 38 C.F.R. § 4.85, the puretone threshold average of 63dB and a speech discrimination of 76 percent for the right ear results in Level IV for the right ear.  Likewise, applying these results to the Table VI chart, a puretone threshold average of 75dB and a speech discrimination of 76 percent for the left ear results in a Level V for the left ear.  Applying both results to the Table VII chart (with the left ear being the “poorer” ear), a Level IV for the right ear, combined with a Level V for the left ear, results in a 10 percent rating evaluation.
Additionally, these audiometric results reflect evidence of an exceptional pattern of hearing for the right and left ears because the puretone thresholds 30dB or less at 1000 Hz and 70dB or more at 2000 Hz.  38 C.F.R. § 4.86(b).  Therefore, a rating assessment based on Table VIA is applicable, and the higher of the results between Table VI and Table VIA shall be applicable.  Id.  In this regard, applying the average puretone threshold of 63dB to Table VIA results in Level V for the right ear.  For the left ear, applying the average puretone threshold of 75dB to Table VIA results in Level VI.  Applying these results, with a Level V for the right ear and a Level VI for the left ear (with the left ear being the poorer ear), results in a 20 percent rating.  Therefore, given that the results from the application of Table VIA results in a higher rating, the audiometric results from this VA examination are reflective of a 20 percent rating, based on the mechanical application of the audiometric measurements.
A February 2016 audiology diagnostic study note also entails audiometric testing results.  Puretone thresholds for the right ear, in dB, were 15dB at 1000Hz; 60dB at 2000Hz; 75dB at 3000Hz; 85dB at 4000Hz, with an average puretone threshold of 58.75dB (rounded off to 59dB).  Puretone thresholds for the left ear, in dB, were 20dB at 1000Hz; 65dB at 2000Hz; 90dB at 3000Hz; and 105dB at 4000Hz, with an average puretone threshold of 70.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 84 percent in the left ear.  Applying these results to Table VI in 38 C.F.R. § 4.85, the puretone threshold average of 59dB and a speech discrimination of 76 percent for the right ear results in Level IV for the right ear.  Likewise, applying these results to the Table VI chart, a puretone threshold average of 70dB and a speech discrimination of 84 percent for the left ear results in a Level III for the left ear.  Applying both results to the Table VII chart (with the right ear being the “poorer” ear), a Level IV for the right ear, combined with a Level III for the left ear, results in a 10 percent rating evaluation.
In this regard, the Board finds that the preponderance of the evidence is against an initial, increased rating that is in excess of 30 percent.  The probative medical evidence of record has not shown any audiometric results that are supportive of a 40 percent rating or higher, based on the mechanical application of hearing loss measurements.  Additionally, the evidence of record has not shown, nor has the Veteran asserted, that his hearing loss has worsened more than what is reflected in the mechanical application.
The Board has considered whether separate ratings are available for the service-connected bilateral hearing loss hearing loss, under separate diagnostic codes, but finds that the evidence of record does not show that the Veteran has any other service-connected diseases of the ear that a schedular rating evaluation has not already contemplated.  Therefore, an initial, increased rating in excess of 30 percent for bilateral hearing loss, under DC 6100, is denied.
3. Tinnitus
The Veteran has been assigned a 10 percent rating for his service-connected tinnitus, under DC 6260.
A rating higher than 10 percent for the Veteran’s tinnitus may not be assigned as a matter of law.  Tinnitus is rated under DC 6260, which provides for a single 10 percent rating, whether or not it affects both ears.  38 C.F.R. § 4.87, Note (2).  Furthermore, since a higher rating must be denied as a matter of law, the benefit-of-the-doubt rule does not apply.  See Sabonis v. West, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107; 38 C.F.R. 3.102.
REASONS FOR REMAND
The Board regrets further delay but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal.
Earlier Effective Date for Service Connection for a Left Hand Disability 
In November 2015, the Veteran duly filed a notice of disagreement (NOD) to a September 2015 rating decision, in which, among other issues he appealed, he indicated that he was in disagreement with the effective date of the award of service connection for his left hand disability.  However, the RO failed to provide the Veteran with a statement of the case (SOC) for this claim, but rather, provided a SOC for all the other issues he has appealed.  Therefore, under these circumstances, rather than refer, the Board must remand this claim back to the RO to issue a SOC and to provide the Veteran or his representative an opportunity to perfect an appeal of this issue.  See Manlicon v. West, 12 Vet. App. 238 (1999).
The matter is REMANDED for the following action:
1. In response to the Veteran’s November 2015 NOD, undertake all indicated action, pursuant to 38 U.S.C. § 7105 (2012), to provide the Veteran and/or his representative with a complete responsive SOC relating to the claim for an earlier effective date for service connection for a left hand disability.
(Continued on the next page)
 
2. Notify the Veteran, in writing, that after the RO has issued the SOC, any failure to submit a Form VA 9 Board appeal within the requisite time frame, will result in the Veteran’s failure to perfect his appeal for this issue.
 
MATTHEW TENNER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	V-N. Pratt, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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