Citation Nr: 1102115	
Decision Date: 01/19/11    Archive Date: 01/26/11

DOCKET NO.  07-12 711	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South 
Carolina


THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing 
loss.

2.  Entitlement to an increased rating in excess of 10 percent 
for hallux rigidus of the left great toe with arthritis.

3.  Entitlement to an increased rating in excess of 10 percent 
for hallux rigidus of the right great toe with arthritis.

4.  Entitlement to an increased rating in excess of 10 percent 
for status post excision, actinic keratosis with dysplasia, left 
nasal bridge, claimed as a skin disorder.

5.  Entitlement to service connection for hammertoes of the left 
foot.

6.  Entitlement to service connection for hammertoes of the right 
foot.

7.  Entitlement to service connection for plantar fasciitis.  

8.  Entitlement to service connection for basal cell carcinoma, 
including as due to exposure to herbicides.

9.  Entitlement to a total rating of individual unemployability 
(TDIU).  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1964 to August 
1991.

This matter comes before the Board of Veterans' Appeals (Board) 
from rating decisions of a Department of Veteran's Affairs (VA) 
Regional Office (RO) in Columbia, South Carolina.

The issues of entitlement to increased ratings for bilateral 
hallux rigidus with arthritis and status post excision, actinic 
keratosis with dysplasia, left nasal bridge, claimed as a skin 
disorder, and service connection for a bilateral hammertoes, 
plantar fasciitis, basal cell carcinoma, and TDIU are addressed 
in the REMAND portion of the decision below and are REMANDED to 
the RO via the Appeals Management Center (AMC), in Washington, 
DC.




FINDING OF FACT

The Veteran's hearing loss disability is manifested by an average 
decibel loss of 44 in the right ear, with a speech recognition 
score of 92 percent, and an average decibel loss of 46 in the 
left ear, with a speech recognition score of 92 percent.


CONCLUSION OF LAW

The criteria for an increased compensable evaluation for 
bilateral sensorineural hearing loss have not been met.  38 
U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 
3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 
(2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which 
it is required to apply.  This includes statutes enacted by 
Congress and published in Title 38, United States Code ("38 
U.S.C.A."); regulations promulgated by VA under the law and 
published in the Title 38 of the Code of Federal Regulations ("38 
C.F.R.") and the precedential rulings of the Court of Appeals for 
the Federal Circuit (as noted by citations to "Fed. Cir.) and the 
Court of Appeals for Veterans Claims (as noted by citations to 
"Vet. App.").

The Board is bound by statute to set forth specifically the issue 
under appellate consideration and its decision must also include 
separately stated findings of fact and conclusions of law on all 
material issues of fact and law presented on the record, and the 
reasons or bases for those findings and conclusions.  38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited 
statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321 
(1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (observing 
that the Board's statement of reasons and bases for its findings 
and conclusions on all material facts and law presented on the 
record must be sufficient to enable the claimant to understand 
the precise basis for the Board's decision, as well as to 
facilitate review of the decision by courts of competent 
appellate jurisdiction.  The Board must also consider and discuss 
all applicable statutory and regulatory law, as well as the 
controlling decisions of the appellate courts).

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his 
representative, if any, of any information, and any medical or 
lay evidence, that is necessary to substantiate the claim.  38 
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 
16 Vet.  App. 183 (2002).  Proper notice from VA must inform the 
claimant of any information and evidence not of record (1) that 
is necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and (4) VA 
must ask the claimant to provide any evidence in her or his 
possession that pertains to the claim in accordance with 38 
C.F.R. § 3.159(b)(1).  This notice must be provided prior to an 
initial unfavorable decision on a claim by the agency of original 
jurisdiction (AOJ), as was done in this case.  Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 
18 Vet. App. 112 (2004).

Here, the VCAA duty to notify was satisfied by way of letters 
sent to the Veteran dated in December 2006 and May 2008 that 
fully addressed all notice elements.

In compliance with the duty to notify the Veteran of what 
information would substantiate his claim, the Veteran was advised 
that VA used a Schedule for Rating Disabilities (Schedule) that 
determined the rating assigned and that evidence considered in 
determining the disability rating included the nature and 
symptoms of the condition, the severity and duration of the 
symptoms, and the impact of the condition and symptoms on 
employment.  

VA has a duty to assist the Veteran in the development of the 
claim.  This duty includes assisting the Veteran in the 
procurement of service treatment records and pertinent treatment 
records and providing an examination when necessary.  38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed without 
prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 
(1993).  The RO has obtained the service treatment records, VA 
outpatient treatment records and private medical records.  
Additionally, the Veteran was afforded VA examinations in 
December 2006 and August 2007.  Neither the Veteran nor his 
representative has identified, and the record does not otherwise 
indicate, any additional existing evidence that is necessary for 
a fair adjudication of the claim that has not been obtained.  
Hence, no further notice or assistance to the Veteran is required 
to fulfill VA's duty to assist the Veteran in the development of 
the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 
143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 
(2002).

Bilateral hearing loss

The Veteran contends that he is entitled to a compensable rating 
for his bilateral hearing loss.  As the preponderance of the 
evidence does not show compensable hearing loss, particularly 
with due application of the Schedule, the Veteran's claim is 
denied.  

Disability evaluations are determined by the application of VA's 
Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 
(2010).  The percentage ratings contained in the 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 the 
residual conditions in civil occupations.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010).  Separate 
diagnostic codes identify the various disabilities.

In considering the severity of a disability it is essential to 
trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 
4.41 (2010).  Consideration of the whole recorded history is 
necessary so that a rating may accurately reflect the elements of 
disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. 
App. 282 (1991).

Where entitlement to compensation already has been established 
and an increase in the disability rating is at issue, it is the 
present level of disability that is of primary concern.  See 
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where 
the question for consideration is the propriety of the initial 
disability rating assigned, evaluation of the medical evidence 
since the grant of service connection and consideration of the 
appropriateness of "staged rating" is required.  See Fenderson v. 
West, 12 Vet. App. 119, 126 (1999).

Where there is a question as to which of two evaluations shall be 
applied, 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 (2010).

In evaluating service-connected hearing loss, disability ratings 
are derived from mechanical application of the rating schedule to 
numeric designations assigned after audiometric evaluations are 
performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  
Evaluations of bilateral hearing loss range from noncompensable 
to 100 percent based on organic impairment of hearing acuity, as 
measured by a controlled speech discrimination test (Maryland 
CNC) and the average hearing threshold, as measured by puretone 
audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 
4,000 Hertz.  The rating schedule establishes 11 auditory acuity 
levels designated from Level I, for essentially normal hearing 
acuity, through level XI for profound deafness.  An examination 
for hearing impairment for VA purposes must be conducted by a 
State-licensed audiologist and must include a controlled speech 
discrimination test (Maryland CNC) and a puretone audiometry 
test.  Examinations will be conducted without the use of hearing 
aids.  38 C.F.R. § 4.85(a).

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing 
Impairment Based on Puretone Threshold Average and Speech 
Discrimination) is used to determine a Roman numeral designation 
(I through XI) for hearing impairment based on a combination of 
the percent of speech discrimination (horizontal rows) and the 
puretone threshold average (vertical columns).  The Roman numeral 
designation is located at the point where the percentage of 
speech discrimination and puretone average intersect.  38 C.F.R. 
§ 4.85(b).  The puretone threshold average is the sum of the 
puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, 
divided by 4.  This average is used in all cases to determine the 
Roman numeral designation for hearing impairment.  38 C.F.R. § 
4.85(d).

Table VI Numeric designation of hearing impairment based on 
puretone threshold average and speech discrimination.

% of discrimination Puretone Threshold Average

0- 
41
42- 
49
50- 
57
58- 
65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV
84-90
II
II
II
III
III
III
IV
IV
IV
76-82
III
III
IV
IV
IV
V
V
V
V
68-74
IV
IV
V
V
VI
VI
VII
VII
VII
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI

The findings for each ear from Table VI, are then applied to 
Table VII (Percentage Evaluations for Hearing Impairment) to 
determine the percentage evaluation by combining the Roman 
numeral designations for hearing impairment of each ear.  The 
horizontal rows represent the ear having the better hearing and 
the vertical columns the ear having the poor hearing.  The 
percentage evaluation is located at the point where the rows and 
column intersect.  38 C.F.R. § 4.85(e).


Table VII Percentage evaluation for hearing impairment 
(diagnostic code 6100)
XI
100*










X
90
80









IX
80
70
60








VIII
70
60
50
50







VII
60
60
50
40
40






VI
50
50
40
40
30
30





V
40
40
40
30
30
20
20




IV
30
30
30
20
20
20
10
10



III
20
20
20
20
20
10
10
10
0


II
10
10
10
10
10
10
10
0
0
0

I
10
10
0
0
0
0
0
0
0
0
0

XI
X
IX
VIII
VII
VI
V
IV
III
II
I

The Veteran underwent a VA audio examination in December 2006.  
The results, in puretone thresholds, in decibels, are as follows:


1000 HERTZ
2000 HERTZ
3000 HERTZ
4000 HERTZ
Right ear
35
35
40
50
Left ear
40
35
45
50

The average pure tone thresholds were 40 decibels in the right 
ear and 42.5 decibels in the left ear.  Speech audiometry 
revealed speech recognition ability of 92 percent in the right 
ear and of 92 percent in the left ear.

Applying the Veteran's findings to Table VI results in a numeric 
designation of I in the right ear and I in the left ear.  Under 
Table VII (38 C.F.R. § 4.85), the numeric designation I in the 
right ear and I of the left ear requires the assignment of 
noncompensable evaluation under Diagnostic Code 6100.

The Veteran was afforded another VA examination in August 2007.  
The results, in puretone thresholds, in decibels, are as follows:



1000 HERTZ
2000 HERTZ
3000 HERTZ
4000 HERTZ
Right ear
40
45
40
50
Left ear
40
45
45
55

The average pure tone thresholds were 44 decibels in the right 
ear and 46 decibels in the left ear.  Speech audiometry revealed 
speech recognition ability of 92 percent in the right ear and of 
92 percent in the left ear.

Applying the Veteran's findings to Table VI results in a numeric 
designation of I in the right ear and I in the left ear.  Under 
Table VII (38 C.F.R. § 4.85), the numeric designation I in the 
right ear and I of the left ear requires the assignment of a 
noncompensable evaluation under Diagnostic Code 6100.

Although the Veteran asserts that his hearing loss is significant 
and that it has progressively worsened, the Court has noted that 
the assignment of schedular disability ratings for hearing 
impairment is derived at by a mechanical application of the 
numeric designations assigned after audiometric evaluations are 
rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In 
this case, the numeric designations produce a noncompensable 
disability evaluation.  38 C.F.R. Part 4, Diagnostic Code 6100.  

With mechanical application of the schedule, clinical evidence 
prepared by a competent medical professional is more probative 
than the Veteran's lay testimony.  The Veteran is certainly 
competent to report symptoms of hearing loss.  However, in 
determining the actual degree of disability, the examination 
findings are more probative of the degree of impairment.  
Accordingly, the noncompensable rating presently assigned 
accurately reflects the degree of the Veteran's hearing 
impairment.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, 
Diagnostic Code 6100.

The criteria for a compensable evaluation have not been met.  
Therefore, the claim for a compensable evaluation for bilateral 
hearing loss must be denied.  In reaching this conclusion, the 
Board has considered the applicability of the benefit-of-the-
doubt doctrine.  However, as the preponderance of the evidence is 
against the Veteran's claim, that doctrine is not applicable in 
the instant appeal.  38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 
at 55-57.

Extraschedular evaluation

On review of the record, the Veteran's symptoms are fully 
contemplated in the schedular criteria, and the Board has found 
no factors such as hospitalizations, or marked interference with 
employability that would suggest that regular schedular criteria 
are inadequate, and warrant referral for extraschedular 
consideration.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. 
App. 111, 115 (2008).

In making this determination, the Board is cognizant of the 
holding of Martinak v. Nicholson, 21 Vet. App. 447 (2007).  In 
that decision, the United States Court of Appeals for Veterans 
Claims (Court) noted that, unlike the rating schedule for hearing 
loss, the extra-schedular provisions did not rely exclusively on 
objective test results to determine whether referral for an 
extra-schedular rating was warranted.  The Court held that in 
addition to dictating objective test results, a VA audiologist 
must fully describe the functional effects caused by a hearing 
disability in his or her final report.  Id. at 455.

In the present case, the Veteran described increasing trouble 
hearing people during conversations.  The Veteran further stated 
that he was pleased with the quality of sound from his hearing 
aid.  The Board has considered this evidence in light of Martinak 
but does not find it to be at all incompatible with the 
noncompensable evaluation.  Rather, the Veteran's description of 
difficulties with hearing is consistent with the degree of 
disability addressed by such an evaluation. 

ORDER

A compensable rating for bilateral hearing loss is denied.




REMAND

The Veteran contends that his service-connected bilateral hallux 
rigidus is more severe than the current 10 percent ratings 
reflect.  The Veteran is also claiming service connection for 
bilateral hammertoes and bilateral plantar fasciitis.  
Additionally, the Veteran is contending that the 10 percent 
rating for his actinic keratosis does not adequately reflect his 
disorder.  He is also claiming service connection for skin 
cancer.  The Board has determined that additional development is 
necessary prior to adjudicating these claims.  

With regard to the Veteran's foot disorders, the Veteran 
underwent VA examinations in January 2007 and August 2007.  He 
was diagnosed with bilateral hallux rigidus, severe 
osteoarthritis bilaterally and callus of the left foot. 

A medical record from February 2007 indicates that the Veteran 
experiences severe foot pain as a result of his hallux rigidus.  
Additionally, the Veteran was diagnosed with plantar faciitis in 
March 2008.  In his November 2010 statement, the Veteran 
contended that his foot disorder is analogous to claw feet.  
Moreover, a medical opinion is necessary to determine if the 
Veteran's plantar faciitis is etiologically related to his period 
of service, either on a direct basis or secondary to his service-
connected foot disorders.

A comprehensive foot examination is necessary to determine the 
severity of the Veteran's foot disorders, to include whether his 
disorder is analogous to claw foot or hammertoes, and if his 
plantar faciitis warrants service connection on a direct or 
secondary basis.  
 
With regard to the Veteran's skin disorders, the Veteran contends 
that the actinic keratoses on his face are related to his basal 
cell carcinoma.  He submitted an internet article that discusses 
the relationship between basal cell carcinoma and skin lesions.  
The Veteran also submitted a May 2008 statement from his 
physician that stated that the Veteran's actinic keratoses put 
him at increased risk for skin cancers.  Moreover, the Veteran 
contends that his facial lesions should have been rated as 
malignant skin neoplasm, as the dysplasia was a burgeoning 
malignancy.  

Accordingly, it is necessary for the Veteran to undergo a VA 
examination to determine if an alternate diagnosis is appropriate 
for the Veteran's skin lesions and if there is a relationship 
between the Veteran's skin lesions and his basal cell carcinoma, 
in light of this additional evidence.  

As the Veteran's claims for increased ratings and service 
connection are being remanded, and because adjudication of these 
claims may have an impact on adjudication of the Veteran's claim 
for TDIU, the Board concludes that these claims are inextricably 
intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 
(1991).  Given the foregoing, the Veteran's claim for TDIU must 
also be remanded.

Accordingly, the case is REMANDED for the following action:

1.	The RO/AMC will contact the Veteran and 
ascertain if he has received any VA, 
non-VA, or other medical treatment for a 
bilateral foot disorder or a skin 
disorder, to include skin cancer, that 
is not evidenced by the current record.  
The Veteran should be provided with the 
necessary authorizations for the release 
of any treatment records not currently 
on file.  The RO/AMC should then obtain 
these records and associate them with 
the claims folder.

2.	Following a reasonable amount of time or 
upon the Veteran's response, the RO/AMC 
shall arrange for the Veteran to undergo 
VA examinations.  The following 
considerations will govern the 
examination:

a.	The claims folder and a copy of 
this remand will be reviewed by 
the examiner in conjunction with 
this examination, and the examiner 
must acknowledge such receipt and 
review in any report generated as 
a result of this examination.

b.	The examiners shall conduct any 
appropriate interviews and 
clinical testing, including x-rays 
or other diagnostic tests.

c.	With regard to the Veteran's 
bilateral foot disorders, the 
examiner shall opine on the 
following:

i.	What is the current severity 
of the Veteran's bilateral 
hallux rigidus?

ii.	Does the Veteran any 
additional diagnoses related 
to his foot pain?

iii.	Are the Veteran's foot 
disorders analogous to claw 
feet or hammertoes, as 
alleged in his November 2010 
statement?

iv.	Does the Veteran have a 
diagnosis of plantar 
faciitis?  If so, if this 
disorder etiologically 
related to service, or 
secondary to his service-
connected foot disorders?

d.	With regard to the Veteran's skin 
disorder, the examiner shall opine 
on the following:

i.	What is the current severity 
of the Veteran's actinic 
keratoses?

ii.	Are the Veteran's skin 
lesions analogous to 
malignant skin neoplasm, as 
stated in his November 2010 
statement?

iii.	Is there an etiological 
relationship between the 
Veteran's basal cell 
carcinoma and his skin 
lesions?

e.	In stating his or her opinion, the 
examiner must state the medical 
basis for any opinion expressed.  
If the examiner is unable to state 
an opinion without a resort to 
speculation, he or she should so 
state.  All opinions expressed 
must be accompanied by supporting 
rationale, with reference to the 
documented clinical history.  The 
examiner(s) must review the claims 
folder, and all evidence within 
it.  

3.	Thereafter, the RO/AMC will readjudicate 
the issues of service connection for a 
depressive disorder, not otherwise 
specified and TDIU.  The RO/AMC must 
ensure that all directed factual and 
medical development as noted above is 
completed.  In the event that the 
examination reports do not contain 
sufficient detail, the RO/AMC must take 
any appropriate action by return of the 
report to the examiner for corrective 
action.  See 38 C.F.R. § 4.2, above. If 
the benefits sought on appeal are not 
granted to the Veteran's satisfaction, 
he and his representative should be 
provided with an appropriate 
Supplemental Statement of the Case, 
which sets forth the applicable legal 
criteria pertinent to this appeal, to 
include the laws and regulations on 
service connection and TDIU.  They 
should be given an opportunity to 
respond.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2010).



______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs