Citation Nr: 0007278 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-04 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to a compensable rating for a flexion deformity of the right little finger based on the disagreement with the initial award. 2. Entitlement to a compensable rating for left ear hearing loss, based on the disagreement with the initial award. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran has verified active service from August 1959 to August 1965. His service medical records include an entrance examination report dated in July 1955 and treatment notes from 1955 through August 1965. This appeal arises from a decision by the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The service-connected right little finger flexion deformity is manifested by a non-painful mallet finger on the distal phalanx that cannot be straightened actively, but extremely unfavorable ankylosis is not demonstrated. 3. The veteran has Level I hearing loss in the right ear and in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for a right little finger flexion deformity have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Code 5219 (a), 5227 (1999). 2. The criteria for a compensable disability rating for left hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.102, 4.1, 4.7, 4.87, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims for increased ratings are well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). The Board is satisfied that all relevant facts have been properly and sufficiently developed to address the issues at hand. Factual Background An October 1996 VA rating examination report states that the veteran had a mallet finger on the distal phalanx of the right little finger. It could be partially straightened passively but the veteran could not straighten it with his extensor tendon. The report is negative for evidence or complaints of pain during the examination. The diagnoses include flexion deformity of the right little finger distal interphalangeal (DIP) joint. The veteran complained of hearing loss and faint tinnitus at the October 1996 VA audiological examination. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 30 40 45 50 LEFT X 35 35 50 50 The average was 41 right, 43 left. Speech audiometry revealed speech recognition ability of 92 percent bilaterally. A November 1996 rating decision established service connection for left hearing loss, evaluated as noncompensably disabling. The same decision service-connected the right little finger disability and found it to be noncompensably disabling. A September 1998 VA audiological examination found the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 35 65 LEFT 20 30 30 55 50 The average was 40 right, 41 left. The speech recognition ability was 96 percent bilaterally. A VA examiner reviewed the medical evidence regarding the veteran's hearing loss in June 1999, but did not perform any new testing. Analysis The United States Court of Appeals for Veterans Claims (Court) held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. Fenderson v. West, 12 Vet App 119 (1999). When assigning an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Id. at 126. Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Id. at 126. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Flexion Deformity of the Right Little Finger The veteran's right little finger flexion deformity is rated as ankylosis. Ankylosis of any finger other than the thumb, index or middle is rated as noncompensable, whether it is the major hand or not. Extremely unfavorable ankylosis is to be rated as amputation under diagnostic codes 5152 through 5156. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (1999). Extremely unfavorable ankylosis is defined as all joints of the fingers in extension or in extreme flexion, or with rotation and angulation of bones. 38 C.F.R. § 4.71a, Diagnostic Code 5219(a) (1999). When a rating is based on limitation of motion, the Board must also consider any functional loss the veteran may have sustained by virtue of weakness or pain on motion. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. The veteran has never complained of pain in his finger and there is no objective medical evidence of pain. However, the most recent VA examination indicates that the veteran's extensor tendon is not capable of actively straightening the distal joint of the veteran's right little finger. As such, he does have a limitation of function. However, this limitation of function only affects one joint in the right little finger and there is no medical evidence of extremely unfavorable ankylosis of the veteran's right little finger. Therefore, a preponderance of the evidence is against a compensable evaluation for the flexion deformity of the right little finger. The evidence does not show that his flexion deformity of the right little finger was more severely disabling than the level of impairment reflected in the most recent VA compensation examination. Therefore, the evidence does not indicate that a staged rating is warranted in this claim. Fenderson v. West, 12 Vet App 119 (1999). Left Hearing Loss During the pendency of the veteran's appeal, VA promulgated new regulations amending the rating criteria for diseases of the ear and other sense organs, effective June 10, 1999. Generally, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded, notwithstanding Karnas. 38 U.S.C.A. § 5110(g) (West 1991). The Board notes that although the RO has not had an opportunity to consider the amended regulations in the first instance, comparison between each version of the regulations applicable to the evaluation of hearing loss finds no substantive changes. Levels of hearing loss are determined by considering the average puretone decibel loss and speech discrimination percentage scores. 38 C.F.R. § 4.87, Table VI. Disability ratings and diagnostic codes are assigned by combining a level of hearing loss in each ear. 38 C.F.R. § 4.85, Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Applying these findings to Table VI, the Board finds that the veteran has Level I hearing loss in both the right and left ear. As shown in Table VII, Level I hearing loss in each ear warrants a noncompensable (0 percent) rating only. Therefore, the Board finds that the preponderance of the evidence is against entitlement to a compensable disability rating for left hearing loss. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.87, Diagnostic Code 6100. While the veteran appealed the initial noncompensable evaluation, the medical evidence of record does not indicate that the veteran's left hearing loss was more severely disabling at any time during the pendency of his current appeal than the level of impairment reflected in the most recent VA compensation examination. Therefore, the evidence does not indicate that a staged rating is warranted in this claim. Fenderson. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is any doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER An increased rating for a flexion deformity of the right little finger is denied. Entitlement to an increased evaluation for left ear hearing loss is denied. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals